Liyaya v Mianga Tea Estate (IRC41 of 2002)) (41 of 2002) [2006] MWIRC 133 (09 November 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 41 OF 2002


BETWEEN


LIYAYA…………………………………………………… ……………...APPLICANT


-and-


MIANGA TEA ESTATE…….………………………... ……………..RESPONDENT



CORAM: R. Zibelu Banda, Chairperson
Manda; of Counsel for the Respondent
Applicant; present
Ngalauka; Official Interpreter


JUDGMENT

Dismissal- Reason-Misconduct-Shortage of stock-Failure to account-Misappropriation of fuel-Procedure- Right to be heard-Hearing.


Upon hearing the applicant and the respondent the court finds that the applicant as Storekeeper was in custody of fuel stocks. The respondent conducted an audit and discovered a diesel shortage of 3614 litres. An investigation was instituted and auditors were involved. The applicant as custodian was asked to explain the shortage. He admitted misappropriating the fuel. He wrote a report to the effect that he misappropriated 3614 litres of diesel and that he tried to conceal the shortage. The respondent dismissed the applicant on that basis. Incurring unacceptable shortages without any proper explanation has been held to constitute fair reason for summary dismissal under section 59 of the Employment Act, see: Mbalangwe V People’s Trading Centre [Matter Number IRC 164/2001 (unreported)]; Chimwala V People’s Trading Centre [Matter Number IRC 259/2002 (unreported)] Chapweteka V ADMARC [Matter Number IRC 100/2005 (unreported)] and John V Illovo Group of Companies [Matter Number IRC 448/2002 (unreported)].


The applicant admitted that he was asked to explain his side. The respondent complied with the law on fair dismissal: Section 57 (1) and (2) of the Employment Act. This action is therefore dismissed.


The applicant is not entitled to severance allowance because the dismissal was fair for misconduct, see section 35 (6) Employment Act. The applicant is not entitled to notice pay because this was summary dismissal, see section 59 Employment Act. The applicant is not entitled to 14 days leave pay because the claim was not pleaded in his statement of claim and was not proved.


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: Section 65 (2) of the Labour Relations Act.


Pronounced this 9th day of November 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.


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