Kaduya v Midway Filling Station (IRC 62 of 2002 ) (62 of 2002) [2005] MWIRC 5 (31 January 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 62 OF 2002


BETWEEN


KADUYA …………………………………………………..APPLICANT


  • and –


MIDWAY FILLING STATION………………………….RESPONDENT




CORAM: R. Zibelu Banda (Ms.), Deputy Chairperson

Mambulasa, of Counsel for Respondent
Applicant, present

Ngalauka, Court Clerk




JUDGMENT

Dismissal- Unfair dismissal-Reason for dismissal-Abscondment-Fraud-Procedure for dismissal- Right to be heard-Withheld benefits-Notice pay-Leave pay-Severance allowance.


FACTS

The applicant was employed on 8 June 1998 as Filling Station Fuel Attendant. He claimed that he was dismissed on 18 May 2000. The reason for dismissal he alleged was because he was involved in a fraud allegation for which he was arrested and charged in a criminal court. His claim is for unpaid salary for five months, notice pay, severance allowance and leave pay.


The respondent dismissed the applicant’s allegation that he was dismissed. They alleged that the applicant absconded from work. They therefore averred that the applicant was not entitled to the claims pleaded.



Issues

The issues before the court are whether the applicant was dismissed and whether the dismissal was unfair; and whether the applicant is entitled to the claims pleaded.


The Law

Reason

Dismissal is unfair if it does not comply with section 57(1) of the Employment Act, which states that:


“The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.”


The applicant was dismissed after he was acquitted by the criminal court. The respondent on the other hand averred that the applicant did not report for duties after he was arrested, charged and released on bail. He stayed away from work for five months. In support the respondent stated that the applicant was implicated with some colleagues also working for the respondent. These colleagues went back to work after they had been released on bail, the respondent did not send them back.


Further the respondent averred that the fraud allegation did not affect the respondent and they were not parties to the arrest and prosecution of the applicant. They said they had no problems with the applicant because the issue of fraud was between the applicant and some other company that dealt with the respondent. There was no reason therefore for the respondent to take any action against the applicant.


The applicant on the other hand stated that he was sent back from work because he was first accused in the criminal case. He was told to wait at home until the criminal case was concluded. The actual person who sent back the applicant was not able to come to court to confirm or deny the allegation.


The issue is whether the applicant did not report back to work after he was released on bail, thereby absconding from work or he was told to wait at home pending the conclusion of the criminal case.


The burden of showing the reason for dismissal is on the respondent, section 61 Employment Act, Earl V Slater & Wheeler (Airlyne) Ltd [1973]1 WLR 51. The respondent alleged that the fraud case was not reason for dismissal because it did not affect them. However they alleged that the reason for dismissal was abscondment. It was upon the respondent to show how the applicant failed to report for duties. They were able to show the court that the applicant did not report for duties from May to September 2000. Therefore the court finds that there was reason for taking disciplinary action against the applicant.


Procedure

Dismissal is also unfair where the applicant in not accorded with the opportunity to explain his side or defend himself in accordance with section 57(2) of the Employment Act which states that:


“The employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity.”


In the instant case the applicant alleged that the reason for dismissal was suspected fraud, while the respondent stated that the reason was abscondment. These two reasons form basis for instituting disciplinary proceedings.


However before any disciplinary action is taken the respondent was legally obliged to hear the applicant’s side and also to allow him to defend himself. The applicant alleged that he was not given an opportunity to be heard. In this case the court finds that the respondent did not give the applicant the opportunity to be heard as demanded by the law,see, Polkey V A E Dayton Services Ltd [1987]3 All ER 974.


Finding

The court finds that the respondent had reason for taking disciplinary action against the applicant, however before taking that action the respondent failed to provide the applicant with an opportunity to be heard. The court finds that the dismissal was unfair on technicality.


Remedies

An applicant who succeeds in a case of unfair dismissal is entitled to a remedy. The remedies are provided under section 63 Employment Act. These remedies are reinstatement, reengagement and compensation.


The applicant did not ask for any remedy under this section. However the court takes into consideration the fact that the applicant was layman and unrepresented. The court shall therefore decide on a suitable remedy basing on the facts of the case.


It has been alleged that the applicant was involved or implicated in defrauding a customer of the respondent. This was a serious misconduct. It was also alleged that the applicant absconded from work for five months. This was also a serious offence. The respondent had reason to terminate the services of the applicant basing on these two grounds. The only problem on the part of the respondent was that they failed to take reasonable and procedural steps in dealing with the applicant.


Therefore the court finds that the applicant is not entitled to any remedy, see Earl V Slater supra cited in Mtonga V Malawi Savings Ltd [ Matter No IRC 126 of 2000 (unreported)] at page 5, holding that:


“We do not think there is any room in this field for the award of nominal compensation and in the light of the tribunal’s finding that the employee suffered “no conceivable injustice” they must, even if they had found unfair dismissal, have assessed the compensation at nil. …we consider that the employee’s claim for compensation was rightly dismissed.”.

Withheld benefits

The applicant in this case played for withheld salary, leave pay, severance allowance and notice pay. These are entitlements that an employer must pay where dismissal is mutual or unilateral by the employer on reasons other than gross misconduct (summary dismissal). In this case the dismissal was not conducted summarily as there was no evidence to that effect.


ORDER

The court ordrers therefore that applicant is entitled to five months salary representing the withheld wages, which is K10000.00. The applicant is entitled to two weeks wages representing leave pay for 2000, which is K1000.00, the applicant is entitled to one month salary representing notice pay, which is K2000.00, the applicant is entitled to severance allowance for two years, which is two week wages for each completed year of service, amounting K2000.00. The applicant is entitled to total benefits of K15 000-00. It is further ordered that this amount must be paid within seven days of this order.


Pronounced in open court this 31st day of January 2005 at Limbe.



R. Zibelu Banda (Ms.)
DEPUTY CHAIRPERSON