IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 61 OF 2003
PHIRI . ... . ...APPLICANT
STANBIC BANK . .......................... ...RESPONDENT
CORAM: R. Zibelu Banda (Ms); Chairperson
Phiri (Ms.)/ Chiphwanya; of Counsel for Applicant
Bandawe; of Counsel for Respondent
Chinkudzu; Offical Interpreter
Dismissal- -Summary dismissal- Reason for dismissal- Negligence-Procedure-Opportunity to be heard and defend oneself-Disciplinary hearing- Court interference with decision of employer-Only in allegation of unfair disciplinary hearing.
Upon hearing the applicant and upon hearing the respondent; the court formed the view that the applicant was negligent in the conduct of his duties which conduct led to or failed to disclose or detect a loss or shortage of MK100 000.00 being money that was supposed to be in the safe custody of the applicant. The applicant was invited to explain the loss or shortage. The applicant explained his side of the story. At the end of it all, the applicant was found negligent for signing on what is called a chit or receipt verifying that all the information on the said chit was correct when in fact the applicant did not carry out the verification, which he was supposed to carry out as one of his official functions. The applicant was found negligent and was dismissed for this negligence as it had led to the loss of the money stated above. These facts were not in dispute.
The Court was called upon to determine whether the dismissal was fair. The main issue for the applicant was that the reason was not valid. He averred that he had not committed any wrong, while the respondent alleged that there was negligence on the part of the applicant in the conduct of his duties which negligence led to loss of the respondents funds.
The Employment Act provides in section 57 that before dismissal an employee must be given the reason for dismissal. If the dismissal is connected with the employees conduct or capacity that employee must be given an opportunity to be heard and explain his side before he can be dismissed. In Granger Nkhwazi V Commercial Bank of Malawi (Civil Cause No. 233 of 1999 (unreported)) where although the cause of action arose before the Employment Act 2000, His Lordship Justice Mwaungulu, described the effect of section 57 of the Employment Act in the following terms on pages 9 and 10 of the transcript:
Under Section 57 of the Employment Act, therefore, 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 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.
In the instant case the issue was whether the reason for dismissal was valid. The applicant knew the reason that led to a disciplinary hearing- loss of MK100 000.00 and how the applicant was not able to detect it. The applicant was called upon to state his case, which he did. The role of this court according to the applicant is to determine whether after his explanation, the respondent had a valid reason to dismiss the applicant.
In deciding whether a disciplinary hearing arrived at a proper decision or not, the Court should restrict itself to facts before it at the Court hearing and avoid substituting decision of the employer with its own decision. The Court should not state what it could have found if it were sitting at that disciplinary hearing, but rather should restrict itself to whether the disciplinary hearing was properly constituted and the proceedings were conducted with fairness.
In assessing the fairness of an employers decision to dismiss the question arises as to what extent a Court should be permitted to interfere with the employers bona fide decision to dismiss? The question was answered in the Labour Appeal Court of South Africa in County Fair Foods (Pty) Ltd V CCMA & others 11BLLR 1117 (LAC), Kroon JA holding that :
[Interference] with the employers sanction is only justified in the case of unfairness. However, the decision of the arbitrator as to the fairness or unfairness of the employers 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.
There are a number of reasons for holding that a Court should not lightly interfere with decision of the employer. For instance, the employer had the advantage of hearing witnesses into the alleged misconduct at the time that it happened and the employer is better placed to know the rules and procedures and more especially its operational interests than any Court, see Kachingwe and others V Southern Bottlers Ltd [Matter Number IRC 162/2003 (unreported)].
In the instant case the applicant did not allege that the disciplinary hearing was unfair or that the decision to dismiss was premeditated or that it was a mere sham. The disciplinary hearing was properly constituted in accordance with the disciplinary procedures applicable under the circumstances. Investigations were carried out and the applicant was involved throughout the investigating process at which point he made some written submission.
The applicant had the opportunity to defend himself and explain his side before the disciplinary hearing. The disciplinary committee found that the applicant was guilty of negligence and recommended dismissal in accordance with their operational needs.
It is the finding of this court that there is no compelling reason why it should interfere with the decision of the respondent arrived at after full and fair hearing. The applicants 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 from the date of this judgment. Appeal lies on matters of law and jurisdiction only, see section 65 (2) Labour Relations Act 1996.
Pronounced in open Court this 8th day of December 2005 at LIMBE.
R. Zibelu Banda (Ms.)