IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 143 OF 2003
JOHN AND OTHERS ... .APPLICANTS
TOTAL (MW) LTD .. RESPONDENT
- CORAM: R. Zibelu Banda (Ms.), Deputy Chairperson
- Applicants; present
- Chalamanda; of Counsel for Respondent
Mbewe; Court Clerk
Summary dismissal- Suspected dishonesty-Fraud-Right to be heard-Right to confront accusers-Punishment to fit the offence.
The four applicants namely: Tchongwe, Mafaiti, Thom and John commenced this action seeking redress for unfair dismissal. They were employed on various dates as Depot Attendants. They were dismissed summarily by letter dated 6 April 2003 on allegation that they were involved in some fraudulent fuel transactions. The applicants challenged the dismissal alleging that the reason was not valid and that they were not given the opportunity to be heard. The respondent on the other hand contended that the dismissal was fair.
The Employment Act 2000 (hereinafter referred to as the Act) provides for summary dismissal in section 59, where an employee is guilty of serious misconduct inconsistent with the fulfillment of the expressed or implied conditions of his contract of employment. In this case the misconduct complained of was fraud. The applicants as Depot Attendants were accused of conniving with some individuals to defraud the company of diesel by stealing the companys fuel through refueling into jerry cans instead of refueling clients vehicles. This allegation of wrongdoing is ground enough for instituting disciplinary proceedings.
The Court therefore finds that the respondent had reason for which they could carry out disciplinary action against the applicants. The disciplinary proceedings involves carrying out an investigation to determine whether the suspicions were well founded; affording the applicants the opportunity to state their case and in this case to defend themselves.
Right to be heard
The facts disclosed that the respondents did not catch the applicants red handed in the act of stealing. They however honestly believed in the guilty of the applicants. The reason for this belief was not known because the respondents investigations of the premises by Auditors and other officers from Head Office did not reveal any loss. The respondent had carried out investigations but failed to establish who had actually stolen the fuel, how much, and when. The investigations included affording the applicant opportunity to explain what they knew about the allegation but the applicants pleaded ignorance.
The mode of the hearings left a lot to be desired because in serious allegations of fraud, the applicants must have been given details of the allegations with particulars properly outlined and they should have been afforded the opportunity to confront those who accused them of fraud, see Khoswe V National Bank of Malawi [Civil Cause No 718/2002 (unreported)].
In this case the Court finds that the allegations leveled against the applicants were serious enough to warrant full hearing, not court-like hearings but a properly instituted hearing where the applicants were allowed to confront their accusers and also where the applicants were given adequate information of the fraudulent activities. The respondent was not able to show the network to which the applicants belonged, how much they stole and when and to enable the applicants defend themselves.
In cases where an employee alleges that his dismissal was unfair the onus is on the employer to show the reason for dismissal and to show that the employer complied with fair labour practices under section 57 of the Employment Act, which provides that:
Section 57 (1) 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.
Section 57(2) 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.
It is the Courts finding that an employer is entitled to protect its property and reputation by dealing with dishonest employees or those suspected theft. However where the employer just holds a suspicion and cannot pin point at the actual wrong doer or the actual loss that he has suffered through the fraudulent activity, the employer should give the suspected employees some benefit of doubt and exercise a less harsh punishment.
The respondent was entitled to protect its property and reputation by terminating the services of those they suspected of dishonest. However summary dismissal was not warranted in this case. The appropriate sanction to fit the offence under the circumstances would have been dismissal with notice, see Chigwenembe V Tafika Civil Engineering &Building Contractors [ Matter No. IRC 124/2003 (unreported)].
It is common in cases of suspected dishonesty for the employer to terminate services of its employees without considering keeping the employee further to serve notice for fear of further damage to company property. In such situations, section 30 of the Act provides for pay in lieu of notice. The section further provides for payment of all other benefits, which, may have accrued at the date of termination.
The Court therefore finds that the applicants were given harsher punishment, which did not fit the circumstances of the case. The Court orders that within 14 days of this order the applicants be paid notice pay, leave pay, any accrued Over Time pay and full pension benefits or severance allowance whichever is greater in each case.
Pronounced in Open Court this 5th day of November 2004 at LIMBE.
R. Zibelu Banda (Ms.)