IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 406 OF 2002
MDZINGA .. APPLICANT
MALAWI POSTS CORPORATION ... RESPONDENT
- CORAM: R. ZIBELU BANDA (MS) CHAIRPERSON
- Chirwa; of Counsel for Applicant
- Limbe; of Counsel for Respondent
- Chinkudzu; Official Interpreter
Dismissal- Justification-Reason-Misconduct-Negligence-Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself.
The applicant was accused of acting negligently. He was subsequently dismisses on 1 November 1999. While so dismissed the applicant received a notice of disciplinary hearing. The hearing took place on 23 October 2000. At the time of hearing the applicants dismissal was still standing, it had not been withdrawn. The applicant challenged the respondents conduct and argued that he was not given a fair hearing before termination. It was the respondents contention on the other hand that this procedure was fair because prior to the dismissal they carried out investigations whose results the applicant did not challenge.
The issue is whether the applicant was given a right to be heard and defend himself against the allegation of acting negligently.
Where an employer has a valid reason for dismissal, the general rule is that, the reason must be communicated to the employee so that he can say something in relation to that reason. In redundancy situations the process is referred to as consultation.
It was thus put in the English Court of Appeal in Polkey V A E Dayton Services Ltd 3 All ER 974 at 983-984; per Lord Bridge of Harwich:
An employer having prima facie grounds to dismiss will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as procedural, which are necessary in the circumstances of the case to justify that course of action.
In section 43 of the Constitution, it is provided that every person shall be furnished with reasons for any administrative action that adversely affects him. The reasons must be furnished before that action is taken so that the affected person can defend himself, see Chawani V Attorney General [MSCA Civil Appeal No 18 of 2000 (unreported)].
Where a reason is given for taking disciplinary action, the employer is obliged to allow the employee to explain his side and defend himself. In the case of Fairmount Investments Limited vs. Secretary of State (1976) 2All ER 865, it was stated that if a party is adversely affected by any evidence and is given the right to comment on that evidence, the principle of right to be heard is complied with.
In the case of Khoswe V National Bank of Malawi [Civil Cause Number 718/2002 (unreported)] it was stated 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 employers justification for termination of employment where there is a disagreement of facts. The duty to apply principles of natural justice does arise beyond the broader principle that where one is to affect anothers rights adversely for a reason, the other reasonably expects to be satisfied of the reason. The hearing must be fair and not predetermined. In the hearing the allegations must be outlined to the applicant and he must be asked to answer to the allegations separately.
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 allegation involved negligence. The applicant denied the allegation. The issue was therefore contentious in which case, Khoswe supra, demands that there must be an oral hearing. During the oral hearing the applicant was to answer in the presence of the complainant who should also have been available for confrontation.
The right to be heard entails a meeting of people including the complainant, accused and some referee or third party, where the complainant sets out his complaint in detail and the accused responds in explanation or self defence. It must be seen to be a fair hearing. Written reports must be reserved for undisputed facts where it would be wasteful to conduct an oral hearing.
In this case the court was not informed the form of the results of investigation and the court was not shown that these results were given to the applicant and that he was allowed to question their truthfulness through an oral hearing before termination. An investigation should never be substituted for a hearing, this fact is elementary and it does not require any further explanation.
The court finds that the respondent might have had a 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. The hearing that took place after dismissal can never be said to be a hearing for purposes of administrative action as it happened after a decision had already been made to dismiss. The dismissal was therefore unfair on technicality.
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 46 of the Constitution as this cause of action arose before the Employment Act. The matter shall be set down for assessment of an appropriate remedy.
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 this 10th day of August 2006 at BLANTYRE.
Rachel Zibelu Banda