IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 11 OF 2000
GWADANI AND OTHERS APPLICANTS
PHARMANOVA LIMITED ..... ...RESPONDENT
CORAM: R. Zibelu Banda (Ms),Chairperson
Chayekha; of Counsel for the Respondent
Chinkudzu; Official Interpreter
Dismissal- Reason for dismissal-Burden on employer to show reason for dismissal- Procedure for dismissal-Hearing- Investigations- Police involvement- Whether police should conduct disciplinary hearing for the employer-Police investigations do not constitute hearing-Criminal hearing do not affect administrative hearing.
The three applicants (one deceased) were employed by the respondent. Their services were terminated on allegations of theft. The applicants were taken to court for criminal prosecution where they were found not guilty. However although there was proof of criminal prosecution, the respondents did not show that they had given the applicants the right to a hearing and to defend themselves before the termination as provided under section 31 and section 43 of the Constitution which provide for the right to fair labour practices and the right to be given reasons before any administrative action is taken against an individual.
The respondent admitted that they did not provide the applicants the right to a hearing or to defend themselves. The argument was that at the time of termination the right to be given reason or the right to be heard did not exist in the prevailing employment laws. However, Counsel, for the respondent acknowledged that the Constitution made it imperative that any action against an employee must be fair and this includes compliance with rules of natural justice.
Employer has the burden of showing the reason for dismissal. Where no reason is given there is a presumption that the dismissal was unfair. See Earl v. Slater and Wheeler (Airlyne) Ltd  1 WLR 51.
The respondent might have had reason to dismiss the applicants. However, the court must find whether the reason was reached after investigation involving hearing from the applicants side. This called upon the respondent to afford the applicants an opportunity to state their case. It is only after hearing from the applicants that the respondent would be able to determine an appropriate administrative action to take against the applicants.
In Polkey v A E Dayton Services Ltd  3 All ER 974,at 983, the House of Lords quoted with approval the following observations of Neill LJ sitting in the court of appeal in the same case  1 All ER 984 at 989:
Where an employee is dismissed for alleged misconduct and he then complains that he was unfairly dismissed, it is to be anticipated that the industrial tribunal will usually need to consider (a) the nature and gravity of the alleged misconduct, (b) the information on which the employer based his decision,(c) whether there was any other information, which that employer could or should have obtained or any other step which he should have taken before he dismissed the employee.
In the instant case the evidence showed that the respondent did not ask the applicants to state their case or defend themselves. Instead the respondent made the applicants to be arrested by police and let the police carry out investigations leading to criminal prosecution. The only basis for dismissing was the fact of loss which was not proved as being as a result of the applicants theft. Employers should avoid abandoning their own investigations in administrative matters and relying solely upon the outcome of police inquiries for purposes of criminal prosecution.
In Read v. Phoenix Preservation Ltd (1985), The Employment Appeal Tribunal (EAT) said it would be:
wholly improper for an employer to allow the police to be present at an internal hearing without the employees foreknowledge and consent. In any event, a police officer should not be allowed to conduct the disciplinary hearing on behalf of the company.
The respondent dismissed the applicants before giving them an opportunity to explain their side and defend themselves. The respondent violated the applicants Constitutional right to fair labour practices and the right to fair administrative action.
The respondent failed to comply with fair labour practice as provided by law. Therefore, the court finds that the dismissal of the three applicants was unfair.
The applicants are entitled to a remedy as provided for under section 46 of the Constitution. The court shall set down a date for assessment of an appropriate remedy. All parties will be required to appear for the assessment. The burden of proving loss for unfair dismissal is on the employee. Therefore the applicants must be prepared to show their loss in court. If need be the applicants are advised to seek professional advice on the heads of remedies that they can claim.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this date. Appeal lies on matters of law and jurisdiction only, see section 65(2) Labour Relations Act 1996.
Pronounced in open Court this 20th day of December 2005 at BLANTYRE.
R. Zibelu Banda (Ms.)