Ndhlovu v Commercial Bank of Malawi (IRC 107 o 20011 ) ( of ) [2005] MWIRC 55 (15 September 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTERS NO. IRC 107 OF 2001


BETWEEN:


NDHLOVU……………...……...…………………………... APPLICANT


-and-


COMMERCIAL BANK OF MALAWI...……………...RESPONDENT



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

Mzumara; of Counsel for the applicant

Bandawe; of Counsel for the respondent

Mbewe; Court Clerk



JUDGMENT

  1. Dismissal-Reason for dismissal- Misconduct- Absenteeism-Un-authorised absenteeism
  2. Shortages-Declaration of shortages-Procedure-Proof
  3. Inter- teller transactions-Procedure-Proof
  4. Right to be heard-What constitutes right to be heard and to defend oneself
  5. Dismissal-Decision to dismiss-Court’s power-Interference with employer’s decision


Facts

The applicant was employed as Bank Teller in 1992. He was dismissed in August 1997 on three allegations namely; absenteeism without authority, failure to declare shortages and conducting inter-teller transactions without following authorized procedure. The respondent inquired from the applicant on all three allegations. The applicant submitted written reports justifying his conduct. The respondent was not convinced with the explanations after carrying out its own investigations into the issues. The respondent subsequently summarily dismissed the applicant.



The applicant challenged the dismissal alleging that the reasons were not valid. He disputed all the three allegations. He justified his absence for five consecutive days on ground of illness. He failed to produce a medical certificate to show that he was on sick leave nor did he get prior authorization from the respondent to be away on sick leave.


The applicant explained in relation to the shortages that they were incurred some time back through some inter teller transaction. In court the applicant justified the shortage as a normal occurrence in the bank and that it was not current shortage therefore basically saying that it was not an issue.


The applicant further said that his inter-teller transaction was normal. However, he could not remember how much cash he collected from his colleagues when procedurally he was required to record the transaction. Further, the applicant did not justify why he required that cash from his colleagues.


An analysis of the facts without getting into banking technicalities is that the applicant was absent from work without authorization either prior or after. The absenteeism was for five consecutive days which in normal employment is substantial time off duties. In the absence of proper authorization to be away from work, and in case of ill health; in the absence of proper medical certification as proof of sick leave on doctor’s advice; this court finds that this absenteeism amounted to misconduct.


The applicant failed to justify the shortages. His only explanation was that it was normal in the course of his duties to incur shortages. If this was a normal shortage and it was allowed in the respondent’s bank, why, would the respondent dismiss the applicant? The applicant did not offer any explanation as to why if shortages were normal practice, he was in this particular instance dismissed. The court finds as fact that the shortage or the manner the shortage was handled by the applicant ie failure to declare or under declaring as alluded to in evidence was an act of misconduct.


The applicant could not recall how much he had borrowed from his Teller colleagues nor could he explain why he needed to borrow from his colleagues. If the inter-teller transactions were normal, the applicant failed to explain why he was dismissed on the basis of a normal transaction. The court therefore accepts the respondent’s explanation that the applicant carried out the transaction without following proper procedure and this was displayed in the applicant’s evidence. This was an act of misconduct.


The Law

Reason

In all unilateral terminations of employment by the employer he must give reasons for the termination. This is a requirement under section 31 of the Constitution which provides for fair labour practices and section 43 of the Constitution providing for the right to be given reasons and be heard. If an employer fails to comply with this requirement the termination becomes unfair.


The burden of proving that there was a reason for dismissal is placed on the employer. The Court must then determine whether the reason was valid. This requirement is fundamental in fair labour practices. It was held in Earl v. Slater & Wheeler (Airlyne) Ltd. [1973]1 WLR 51 at 55 that:


“It is for the employer to show what was the principal or only reason for dismissal…. and that it was a potentially valid reason…. If the employer fails to discharge this burden, the tribunal must find that the dismissal was unfair.”


In the instant case the respondent’s explanation came through cross examination and documents submitted in evidence originating from the respondent to the applicant and vice versa. The court has found as a matter of fact that the applicant committed three different acts of misconduct namely; unauthorized absenteeism, incurring and/ or under declaring a shortage and carrying out unprocedural inter-teller transactions. This court has held that absenteeism is a ground for dismissal, see, Chiutsi V Trustees of Malawi Against Physical Disability [Matter Number IRC 215/2001 (unreported)].


This court has also held that unjustified or unprocedural shortages are grounds for dismissal, see Mbalangwe V People’s Trading Centre [Matter Number IRC 164/2001 (unreported)].


It has also been held that an employee carrying out unauthorized transactions is guilty of misconduct if the transaction is inconsistent with the fulfillment of the expressed or implied conditions of his contract of employment such that it would be unreasonable to require the employer to continue the employment relationship, see repealed section 11 (1) (a) of the Employment Act (Cap 55:02) which applied at the time of the course of action.


Procedure

The position of the law on procedure before dismissal is that the applicant must be given an opportunity to be heard before he is condemned, see Chawani V Attorney General [MSCA Civil Appeal Number 18/2000 (unreported)].


It is trite law that an employer having a valid reason for which they could dismiss an employee would not act fairly by dismissing without conducting an inquiry aimed at giving the employee an opportunity to explain his case and defend himself, see Polkey A E Dayton Services Ltd [1987] 3 All ER 974.


In this case the applicant was invited to explain what had happened. He explained his side and made written submissions. It was this court’s finding that the respondent had established that the reasons for dismissal were valid and that they had afforded the applicant the opportunity to be heard when the applicant was invited to make representations. It has been heard that as long as the employee knows the allegations against him and is asked to explain his side, the right to be heard is complied with, see Khoswe V National Bank of Malawi [civil Cause No. 718/ 2002 (unreported)]


Interference with employer’s decision.

It has been held in this court that decisions of employers should not be tampered with if there is no allegation that the process to arrive at the decision was not fair. See the case of Kachingwe &others V Southern Bottlers Mw Ltd [Matter No.162 of 2003(unreported)]. In that case the Court quoted with approval a holding of the Labour Appeal Court of South Africa in the case of County Fair Foods (Pty) Ltd V CCMA & others [1999]11BLLR 1117 (LAC), per Kroon JA:


“[interference] with the employer’s sanction “ is only justified in the case of ……..unfairness.” However, the decision of the arbitrator as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all evidential material before the arbitrator. To that extent the proceedings are a hearing de novo.”


In the instant case, the Court has no reason to interfere with the sanction imposed by the respondent.


Shortages- Value of loss

The applicant conceded incurring some shortage. It must be noted that value of money lost through employees misconduct or incapacity is not an issue when dealing with whether a dismissal was fair or unfair. What matters is whether the respondent in its operational requirements regards the unexplained loss serious enough to warrant dismissal; see Ibrahim V Suncrest Creameries Ltd [Matter No. IRC 73/2003 (unreported)] and Phiri V Shoprite Checkers Ltd [Matter No. IRC 74/2003 (unreported)] where this Court quoted with approval the following passage from De Beers Consolidated Mines Ltd V CCMA &others [2000] 9 BLLR 995 (LAC):


“Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”


Finding

The Court finds that the respondent complied with the law. The dismissal was fair. Action is dismissed in its entirety.


Any party aggrieved by this decision has the right to the High Court within 30 days of this order pursuant to section 65 (1) of the Labour Relations Act 1996.



Pronounced in Open Court this 16th day of September 2005 at LIMBE.




R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.