Kambalame v ADMARC (IRC 274 of 2003 ) (274 of 2003) [2005] MWIRC 7 (03 February 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTERS NO. IRC 274 OF 2003


BETWEEN:


KAMBALAME………….……...…………………………... APPLICANT


-and-


ADMARC………………………………………………...RESPONDENT



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

Applicants;present.

Ntchembe; for the respondent

Ngalauka ; Court Clerk



JUDGMENT

Dismissal-Reason for dismissal- Misconduct- Dishonesty-Willful disobedience of company regulations and procedures-Procedure- Opportunity to be heard- and defend oneself-Interference with employer’s decision-Loss to company-Value-Irrelevant.

Facts

The applicant was employed on 17 November 1998. He was dismissed on 19 September 2003. The reasons for dismissal were connected with the applicant’s conduct. The applicant challenged the dismissal alleging that he did not agree with the manner of dismissal. The respondent on the other hand contended that the dismissal was fair. The issue is whether the dismissal was unfair.


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 burden of proving reason for dismissal is on the employer, see section 61 Employment Act and also Earl V Slater & Wheeler [1973] 1WLR 51. The applicant in the instant case was accused of loading a Malswitch BP card with K3 200.00 worthy of units without authority. This misconduct constituted dishonesty. The applicant was also accused of giving out two copies of certificates of service to unauthorized persons contrary to company rules, constituting willful disobedience of company rules, regulations and policy.

Dishonesty is one of the gross cases of misconduct warranting summary dismissal; see Kachingwe V Shire Bus Lines [Matter No. IRC18/2000 (unreported)]; Kachingwe & others V Southern Bottlers Ltd [Matter No. IRC 162/2003 (unreported)] Chitenje V PEW Limited [Matter No. IRC 36/2000 (unreported)]; Ndawala V Malawi Distilliries Ltd [Matter IRC No. 305/2001 (unreported)]; Nazombe & others V Southern Bottlers Ltd [Matter No. IRC 56/2000 (unreported)]; and Zolowere V Total (Mw) Ltd [Matter No. IRC 193/ 2002 (unreported)].


Willful disobedience of company rules and regulations is serious misconduct warranting summary dismissal; see Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)] and Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


The Court finds that the respondent had valid reason for which they could institute disciplinary proceedings against the applicant. However before any adverse action against an employee is taken, that employee must first be afforded an opportunity to explain his side and defend himself.


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.”

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, Ulaya V SDV (AMI) Mw Ltd [Matter No IRC 133/2001 (unreported)].


The court heard in the instant case that the applicant was confronted with allegations of releasing company records and documents to unauthorized persons without authority. The applicant was also accused of dishonesty by loading fuel units into a Malswitch card without authority. The applicant was invited to a hearing to explain his side on these allegations. Management heard the applicant’s story but decided to dismiss him after taking all factors into consideration including his explanation.


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 applicant did not allege that he was unfairly treated when allegations of misconduct were uncovered. The applicant made accusations against his boss that he was biased against the applicant. These accusations were unsubstantiated and the court disregarded them. The Court has no reason to interfere with the sanction imposed by the respondent.


Loss to company

The Court was informed that the loss to the company in relation to the BP Malswitch card misuse was K3200-00. It must be noted that where operational requirements of a company demands an account of very penny and that loss of resources would adversely affect its operations, the company is entitled to summarily dismiss any of its employees found misappropriating or stealing company funds. The value of the loss is irrelevant; 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.



Pronounced in Open Court this 3rd day of February 2005 at LIMBE.




R. Zibelu Banda (Ms.)

CHAIRPERSON.