Kamwendo and Others v Nansonia Estate (IRC 3 2005 ) ) (NULL) [2006] MWIRC 112 (19 September 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 3 OF 2005


BETWEEN



KAMWENDO AND OTHERS……..……...…………………………... APPLICANTS


-and-


NANSONIA ESTATE…………………………………...……………...RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Chinangwa R (Mrs); Registrar

Luwe; Group Manager.

Applicants; Present

Ngalauka; Official Interpreter



JUDGMENT

Dismissal-Reason for dismissal- Misconduct- Willful disobedience of company regulations and procedures-Flouting company procedures-Procedure- Opportunity to be heard- and defend oneself-Interference with employer’s decision.

Upon hearing the applicants and upon hearing the respondent the court finds that applicants as labourers were given a task to perform and were instructed to complete it before the close of business. The applicants did not complete the task because they said it was raining on the material day. The respondent averred that it was not true that the task could not be completed due to the rains. He alleged that the applicants deliberately failed to complete the task in violation of their terms and conditions of employment.


The task involved putting away nuts which had been collected from the field. Failure to put away the nuts would spoil the whole years’ work as they were a sensitive crop requiring strict treatment. The court finds that the applicants breached their conditions of employment by refusing to take lawful instructions from their superiors.


Willful disobedience of company rules and regulations is serious misconduct warranting summary dismissal; see Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)] and Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


Flouting company procedures has been held in this court to constitute valid ground for dismissal, see Nzangaya V Unitrans Malawi Ltd [Matter Number IRC 32 of 2003 (unreported).


Interference with Employer’s Decision

It has been held in this Court that decisions of employers should not be tampered with if there is no allegation that the process to arrive at the decision was not fair. See the case of Kachingwe &others V Southern Bottlers Mw Ltd [Matter No.162 of 2003(unreported)]. In that case the Court quoted with approval a holding of the Labour Appeal Court of South Africa in the case of County Fair Foods (Pty) Ltd V CCMA & others [1999]11BLLR 1117 (LAC), per Kroon JA:


“[interference] with the employer’s sanction “ is only justified in the case of ……..unfairness.” However, the decision of the arbitrator as to the fairness or unfairness of the employer’s 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.”


It was heard in the instant case that the applicants had discussions with their employer, Assistant Manager on their conduct. Prior to that discussion they knew the consequences of failure to complete a task such as the one they failed to complete. The result was dismissal. There is no justification to interfere with the respondent’s decision.

Finding

The Court finds that the respondent complied with the law. The dismissal was fair according to section 57 of the Employment Act. Action is dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 19th day of September 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON