IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 263 OF 2005 BETWEEN
ROYAL INSURANCE COMPANY.…...…...…………………………RESPONDENT
CORAM: R. Zibelu Banda; Chairperson
Hara; of Counsel for Respondent
Applicant; present unrepresented
Chinkudzu; Official Interpreter
Dismissal- Justification-Reason-Misconduct-Failure to follow procedures-Acting without authority-Failure to produce reports-Dishonesty-Procedure-Right to be heard- Employer under legal obligation to afford employee opportunity to be heard and defend himself.
Upon hearing the applicant and the respondent the court finds that the applicant had committed a number of acts of misconduct including: Failure to follow procedures; Acting without authority; Failure to produce reports and acts of dishonesty where it was alleged that the applicant authorized repairs to a non existent garage and where the applicant was alleged to have accepted processing of a claim for damage which damage did in fact not occur. The respondent conducted investigations, which included verifying the existence of the said garage and the said damages.
The applicant contended that he was not shown the results of the investigations nor was he aware that he was under investigations. It was an undercover operation known only to management. The applicant averred that he was not given an opportunity to be heard on all these allegations.
The respondent failed to show on a balance of probabilities that the applicant was given a hearing to explain his role in the misconduct allegations or to defend himself. It was held in Khoswe V National Bank of Malawi [Civil Cause Number 718 of 2002 (unreported)] that: Where facts of a case are in dispute, it is necessary to give an oral hearing to satisfy the rules of natural justice or the duty to act fairly. A fair hearing becomes the employer’s justification for termination of employment.
In the instant case it was heard that the transactions involving the applicant were dishonest and in some cases the applicant acted without authority or acted beyond his authority. It was not clear though what the motive of the applicant was unless he had been given an opportunity to explain his side and defend himself. It was therefore imperative for the applicant to be given a fair hearing, which should have involved confrontation of witnesses and representations in self-defence.
The court finds as a fact that the applicant was not given an opportunity to explain the misconduct allegations. The respondent failed to comply with procedure as demanded by section 57(2) of the Employment Act.
The court finds that the respondent had valid reason for dismissal but they failed to comply with the law by failing to afford the applicant the opportunity to be heard and defend himself before he was dismissed.
Where a party succeeds in a case of unfair dismissal, the court is empowered to award that person a remedy. These remedies are provided in section 63 of the Employment Act. However before awarding any remedy the court must assess the case from the facts to determine the appropriate remedy. As such remedy is not automatic and is not uniform, as the remedy will always depend on the circumstances of the case.
Assessment of remedy: An appropriate remedy will be assessed on a date to be fixed by the court.
Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: See section 65 (2) of the Labour Relations Act 1996.
Pronounced in Open Court this 18th day of November 2005 at CHIKWAWA.
R Zibelu Banda (Ms.)