Kabambe v Cargomate Ltd (IRC 53 of 2001 ) (53 of 2001) [2005] MWIRC 6 (01 February 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 53 OF 2001


BETWEEN:


KABAMBE.....………………………………………………. APPLICANT


-and-

CARGOMATE LTD……………………………………..RESPONDENT



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

Applicant- present

Ziyendammanja of Counsel for Respondent

Ngalauka, Court clerk

JUDGMENT

Dismissal- Justification for Dismissal- Reason- Misconduct-Dishonesty-Employer to show reason- -Party’s Absence for Hearing Without Excuse-Procedure-Right to be Heard and Defend Oneself-Police Charges-Criminal Proceedings-Effect of criminal verdict on employment-Suspension- Must be contractual.


FACTS

The applicant was employed on 12 April 1995 as Tally Clerk- Checker. He was dismissed in 2001. The ground for dismissal was misconduct of dishonesty involving theft and untrustworthy. The applicant challenged the dismissal stating that the reason was not valid as he had been acquitted by a criminal court of law on the same allegations. The respondent failed on several occasions without good reason to appear and respond to the applicant’s allegations.


The respondent did not attend Court and did not inform Court why they had failed to appear for hearing. An affidavit of service was filed by the Court as evidence that the respondent had been served with a notice of special hearing. The respondent ignored the notice and asked for several adjournments during the course of the case. The Court proceeded to hear the case in the absence of the respondent pursuant to section 74 of the Labour Relations Act.


The section is aimed at preventing court process being deliberately delayed which would result in justice not being done. In such situations the High Court has held that the matter must proceed in the absence of the other party. The Honourable Justice Ndovi ordered in Fredrick Banda V. Dimon (Malawi) Ltd (Civil Cause No. 1394 of 1996(unreported)) that:


“trial should proceed, in the interest of justice, in the absence of the defendant. It has often been said in these courts that justice delayed is justice denied.”


THE LAW

Reason

Section 57 of the Employment Act provides that every employee must be furnished with a reason before he can be dismissed. In the instant case the reason for dismissal was misconduct relating to dishonesty. The applicant was accused of theft and untrustworthiness. This was a valid reason for which disciplinary proceedings could be instituted against an employee. Disciplinary proceedings involve finding out from the employee what he knew about the allegations and asking him to defend himself if he could. It is after this process is concluded that an employer can take disciplinary action including dismissal.


Procedure

If the reason is connected with the employee’s conduct or capacity he must be given an opportunity to say something for himself or defend himself. Where an employer dismisses on allegation that an employee mis-conducted but does not give him an opportunity to explain and defend himself, the dismissal is unfair, see section 58 of the Act.


In Polkey V A E Dayton Services Ltd [1987]3 All ER 974 at 984, it was held; per Lord Bridge of Harwich:


“An employer having prima facie grounds to dismiss ……will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’, which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of ……..misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.”


Also see the case of Dr B S Chawani v The Attorney General (MSCA Civil Appeal No. 18 of 2000(unreported)).


In the instant case the court heard from the applicant that after the allegations of theft and dishonesty were known, they were presented to him by the respondent so that the applicant could explain his side. The applicant explained his side but the respondent was not convinced hence they decided to terminate his services.


However the applicant was not happy with the dismissal because he was acquitted on the same accusations in a criminal court. The court finds that an acquittal in a criminal court on similar charges as those for which an employee is dismissed does not affect the dismissal. The reason is that the standard of proof in a criminal court is higher than in an employment disciplinary proceedings. Therefore it becomes more difficult to convict in a criminal court even where the accused had committed the offence.


Further, criminal proceedings are different from employment proceedings, because in the later there is loss of trust and confidence. Where an employer loses trust in its employee, it is difficult to retain that employee in employment. This is why the employer is entitled to terminate the services of the untrustworthy employee.


Finding

It is found that the dismissal was fair. The respondent furnished the applicant with a reason for dismissal. The reason was valid. The respondent asked the applicant to make a written report of the allegation and was asked to explain his side. This was in conformity with the law. Therefore action is dismissed in its entirety.


WITH HELD WAGES

The applicant alleged that he had been put on suspension from 14 August 2000 to 26 April 2001. The respondent did not show whether the suspension was in conformity with its conditions of service which were known to the applicant or not. Suspension is only allowed where it is specifically provided for in a contract, especially where the suspension is without pay, see Stola V Malawi Book Services (1993)16 (2) MLR 833 at 839.

ORDER

The applicant is therefore entitled to wages from 14 August 2000 to 26 April 2001 comprising withheld salary without legal justification. The applicant is entitled to 10% on the sum to cater for devaluation of the local currency since 2001. The amount must be paid within seven days of this order.




Pronounced in Open Court this 1st day of February 2005 at LIMBE.




R Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.