Kamoto v Limbe Leaf Tobacco Co. Ltd (IRC 74 of 004 ) (74 of 004) [2005] MWIRC 70 (18 November 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 74 OF 2004


BETWEEN

KAMOTO ………………………..……………………………………….. APPLICANT


-and-


LIMBE LEAF TOBACCO CO. LTD…………………………………RESPONDENT


CORAM: R Zibelu Banda; Chairperson

Mpaka Counsel for the Applicant

Chikungwa for the Respondent

Background

The matter was referred to the Registrar as the issue dwelt on factual findings of whether or not the applicant had been authorized to absent himself from duties. Upon hearing both parties, the Registrar found that on the question of whether or not the applicant had authority to stay away from duties, it was his finding that the applicant in fact had no authority to absent himself from work. The following is the analysis of the Registrar:

“ANALYSIS OF FACTS


The following conclusions can be drawn fro the evidence on record.

  1. The hospital receipts which the applicant tendered as evidence that he was taking his children to hospital do not appear to support his case. The applicant told the court that it was during the week beginning 20th May, 2004 that he took his children to hospital. Yet the hospital receipts indicate earlier dates except for one day (23rd May).


Furthermore, the 23rd May was the day when the disciplinary hearing took place. As per Applicant Exhibit 3 the hearing started at 8.30 a.m. One wonders as to what time the applicant took his children to hospital and if indeed he took the children to hospital the receipt for 23rd May would be of no relevance since at the time of the disciplinary hearing it was not there.


Hospital receipts would have been perhaps the strongest piece of evidence that the applicant had been taking his sick children to hospital. But there is nothing to show that the applicant produced the hospital receipts at the disciplinary hearing.


It is my view that it can only be inferred that the applicant acquired the receipts (by whatever means) after he had been dismissed. Otherwise he should have produced them at the disciplinary hearing.


The applicant also told the court that he only informed his superiors on why he decided to take the children to hospital himself (and not his wife as is the tradition in Malawi) after they had queried why he was not working on the day shift.


Surely, I do not think that an employer can grant permission to an employee to absent himself from work if there is no proper justification. The employee has to provide good reasons why he/she wants to absent himself/herself from work. I do think therefore that the applicant did not obtain prior permission.


  1. It is clear from the correspondences that the applicant knew about the respondents disapproval for him to work on night shift on 20th May, 2003. See Applicant Exhibit 2.


But he continued to report for the night shift in apparent disobedience to instructions not to do so.


  1. The applicant did not arrange with a fellow driver to work for the applicant on the day shift. It is the respondents who made those arrangements after noting that there was a shortage of drivers in the Green Leaf Department during the day shift.


How the applicant managed to beat the clocking system i.e. how the machines at the entry point accepted the applicant as one of those employees required to work on the night shift can only be explained by those who were manning the machines at that time. They were not present at the hearing to testify.


However I think that this fact is of little relevance. The main issue is whether the applicant had been granted permission to take his children to hospital thereby necessitating his change of shifts. This has already been answered above.

  1. A disciplinary hearing took place. It was decided to dismiss the applicant. The applicant however appealed. The appellate body upheld the decision of the lower body.”


Finding

In view of the above and from the totality of the evidence on record the court finds that the applicant was fairly dismissed both substantively and procedurally. The action is therefore dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this day. Appeal lies on matters of law and jurisdiction only: See section 65 (2) of the Labour Relations Act 1996.


Pronounced in Open Court this 18th day of November 2005 at BLANTYRE.


R Zibelu Banda Ms.

CHAIRPERSON