Kachere v Malawi Telecommunications Ltd (IRC 407 of 2002) (407 of 2002) [2006] MWIRC 129 (01 November 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 407 OF 2002


BETWEEN



KACHERE….………………………..……...…………………………... APPLICANT


-and-


MALAWI TELECOMMUNICATIONS LTD (MTL)...……………...RESPONDENT


CORAM: R. Zibelu Banda (Ms); Chairperson

Kabota; for the respondent

Applicant; Present

Chinkudzu; 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-Appeal-Interference with employer’s decision.


Upon hearing the applicant and upon hearing the respondent the court finds that applicant as driver took out and drove away a company vehicle without authority. The applicant knew the procedure for driving out company vehicles but he deliberately flouted this standing procedure. He was invited for a hearing where he presented his case. Not being satisfied with the decision to dismiss him, he appealed and his appeal was heard.


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.”


The court will not interfere with the decision of the respondent because the respondent complied with law prevailing then in section 43 of the Constitution that a person must not be condemned without a hearing.


Finding

The Court finds that the respondent complied with the law. The dismissal was fair according to section 31 of the Constitution providing for fair labour practices. 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 1st day of November 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON