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 9^th day of November 2006 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON.