Chingondo v Stansfield Motors (IRC 16 of 20033) (16 of 20033) [2005] MWIRC 93 (02 June 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


LILONGWE REGISTRY


MATTER NO. IRC 196 OF 2003


BETWEEN:


CHINGONDO………………………………………………. APPLICANT


-and-

STANSFIELD MOTORS LTD…………………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicant- present

Respondent- Takomana; Branch Manager

Mpakani, Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason- Dishonesty-Incompetence-Missing merchandise-Procedure-Right to be heard-Warnings-Whether mandatory.

Facts

The respondent employed the applicant in 1981. He was dismissed for reasons relating to dishonesty and incompetence. The applicant had his case heard before dismissal. He still challenged the dismissal alleging that the reason was not valid. The respondent averred that the reasons were valid and they gave as example issues of missing merchandise in the stores where the applicant was responsible.


Issue

The issue is whether the respondent had a valid reason for dismissal.


The Law

Reason

Section 57 (1) of the Employment Act provides that an employee must be given a reason before any adverse action is taken against him. Where a reason is given, the court must determine whether the reason is valid and that it warranted the action taken by the employer, see Earl v. Slater and Wheeler (Airlyne) Ltd [1973] 1 WLR 51.


In the instant case the court heard that the applicant was responsible for spare parts section. His duties included ordering spare parts from Blantyre for customers and for store keeping. It was the respondent’s contention that the applicant was not effective in this section as they had incidents of missing spare parts. They suspected that the applicant was responsible through dishonesty or through negligence. The final incident was an issue involving actuators, ordered by the applicant from Blantyre but went missing under the applicant’s custody. The applicant denied any involvement in the missing actuators or indeed in any acts of misconduct or incapacity.


Issues of dishonesty are serious acts of misconduct in most cases warranting disciplinary action; see Ibrahim V Suncrest Creameries [Matter Number IRC 73 of 2003 (unreported)]. The court therefore finds that the respondent had a valid reason to take disciplinary action against the applicant.


Procedure

Before any action is taken against an employee, section 57 (2) of the Employment Act provides that the employee must first be heard to explain his side and or to defend himself, see also Polkey V AE Dayton Services Ltd [1987]3 All ER 974. In the instant case the court heard that the applicant was asked to explain the issue of the missing actuators. The applicant’s explanation was not satisfactory and the respondent accordingly dismissed the applicant.


The court went through the letter of termination and the factors that had led the respondent to arrive at the decision that they did. Among other things the respondent considered previous issues of missing items from the applicant’s section. The total loss was assessed at MK 428 348-00. The respondent applied their terms and conditions of service to terminate the applicant’s services.


Warnings

It was the applicant’s contention though that he had never been warned before during his service. Indeed warnings form part of disciplinary process. It is however not in all situations that warnings must be issued. In cases of misconduct especially involving dishonesty, employers would want to protect their property and dismiss without warnings. In this case, the matter was a mixture of suspicions of dishonesty and incompetence. In cases of incompetence it is imperative for the employer to give warnings for the employee to improve. It is only in very few exceptions which do not apply in this case that a warning may be dispersed with, see Chibaya V Population Services International Malawi [Matter Number IRC 12 of 2000 (unreported)].


In cases of misconduct especially involving dishonesty, the decision depends on the operational requirements of the enterprise. In this case, the respondent did not prove that the applicant had stolen items from the stores where he was in charge. However, it was in the respondent’s best interests to take precautionary measures to protect property, hence the termination without warning.


In Polkey V A E Dayton Services Ltd [1987] IRLR 503 HL; the court held that a dismissal without a warning may not be unfair if the employer could reasonably have concluded that a warning would be utterly useless.


FINDING

The court finds that the respondent had a valid reason for dismissal. The respondent gave the applicant an opportunity to explain his side before the termination. The respondent complied with section 57 (1) and (2) of the Employment Act. The court does not have any basis for interfering with the decision of the respondent. The action is therefore dismissed.


PENSION BENEFITS

The applicant had claimed pension benefits. In the letter of termination, the respondent indicated that the applicant would receive a refund of his own contribution of pension benefits. The applicant admitted that he received these benefits therefore the claim falls away.


Any party not satisfied with this decision is at liberty to appeal to the High Court in accordance with section 65 (2) of the Labour Relations Act, within 30 days of this judgment.


Pronounced in open court this 2nd day of June 2005 at Lilongwe.



R. Zibelu Banda (Ms.)

CHAIRPERSON.