Mussa v Stannic Bank (IRC 280 of 2003 ) (280 of 2003) [2006] MWIRC 137 (06 December 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 280 OF 2003


BETWEEN:


MUSSA………….………………...…………………………. …………...APPLICANT


-and-


STANBIC BANK…………….……………………..........................…...RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Phiri (Ms.); of Counsel for Applicant

Bandawe; of Counsel for Respondent

Ngalauka; Offical Interpreter



JUDGMENT

Dismissal- -Summary dismissal- Reason for dismissal- Negligence-Flouting bank procedures-Procedure-Opportunity to be heard and defend oneself-Disciplinary hearing- Court interference with decision of employer-Only in allegation of unfair disciplinary hearing.


Upon hearing the applicant and upon hearing the respondent; the court found from the facts that the applicant as Head, Service Support, authorized the instant payment of a cheque which it later transpired to have been fraudulently drawn. He also authorized an immediate encashment of MK 753 000-00 against the proceeds of the said cheque. The applicant admitted authorizing immediate encashment of the material cheque. The applicant was found negligent in that if he had performed his functions diligently he would have prevented this fraud from materialising. He was dismissed for this negligence as it had led to loss of funds stipulated above. These facts were not in dispute.


The Issue

The Court was called upon to determine whether the dismissal was fair. The main issue for the applicant was that he was denied Trade Union representation at the hearings. It transpired that the applicant appeared before two hearings. The respondent was not able to show whether there was a Union representative at any of the hearings or not.


The Law

Section 57(2) of the Employment Act provides that an employee must be given an opportunity to state his case and defend himself before he can be dismissed for alleged misconduct or incapacity. In this case the matter bordered on both incapacity and misconduct. Therefore the applicant was entitled to a hearing.


Any disciplinary hearing must be fair. Fairness is a question that must be decided by a court on available facts. In this case the question is whether absence of Trade Union representation at a hearing constituted unfairness? In order to answer this question the court must consider the overall conduct of the respondent and determine whether the procedure leading to the dismissal was unfair.


It was heard that the applicant appeared before a disciplinary hearing. The letter of termination refers to two disciplinary hearings. A summary of one of the hearings was presented to court but the minutes were not available. From the summary, it shows that the applicant was asked to explain his conduct, especially authorizing through his official stamp that cheque be cashed without following certain processes aimed at detecting or thwarting any fraudulent attempts. The applicant explained his story and it was found that his conduct was negligent.


The summary did not show whether the applicant had asked for Union representation. However assuming that the applicant had asked for Union representation and that it was denied, would this court find that on the face of the facts before it especially on the procedure followed by the respondent that there was unfairness?


The purpose of a hearing is to allow the accused employee to state his case and defend himself. The allegations must be laid before the employee in advance so that he can prepare for his case. The applicant did not allege that he was taken unawares on the hearing. He knew the charges and he stated his case.


This is the procedure that is envisaged in section 57(2). There is no requirement that in every case there must be a Trade Union representative or at all. The court applauds those companies that allow Trade Unions to flourish and operate in their institutions. However as far as the law is concerned at present there is no legal obligation on any company to have an active Trade Union in the workplace. Therefore, this court finds it difficult to agree with the applicant that the absence of Trade Union representation automatically rendered the hearing unfair.


It would have been different if the applicant had argued that the members that sat at the hearing were biased in any way. In which case the applicant would have been entitled to appeal against the decision of the hearing committee to a higher authority within the respondent’s bank. There was no mention that the applicant appealed on the basis of the composition of the disciplinary committee and that his appeal was rejected.


It has been held in this court on this point in Banda v. Unitrans (Malawi) Limited [Matter Number IRC 27/2001 (unreported)] that it does not matter whether each of the procedural requirements has been meticulously observed. What is required is for all relevant facts to be looked at in the aggregate to determine whether the procedure adopted was fair. One must guard against the rigid imposition of judicial style proceedings in inappropriate situation.



Finding

It is the finding of this court that there is no compelling reason why it should interfere with the decision of the respondent. The respondent followed standard procedure envisaged by section 57(2). The applicant’s action is therefore dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days from the date of this judgment. Appeal lies on matters of law and jurisdiction only, see section 65 (2) Labour Relations Act 1996.



Pronounced in open Court this 6th day of December 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON.