Court name
Industrial Relations Court
Case number
IRC Matter 107 of 2001

Ndhlovu v Commercial Bank of Malawi (IRC Matter 107 of 2001) [2005] MWIRC 55 (14 September 2005);

Law report citations
Media neutral citation
[2005] MWIRC 55

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
i
n 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.