Court name
Industrial Relations Court
Case number
IRC Matter 360 of 2005

Buhendwa v Dignitas International (IRC Matter 360 of 2005) [2006] MWIRC 144 (13 December 2006);

Law report citations
Media neutral citation
[2006] MWIRC 144





IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI




PRINCIPAL
REGISTRY




IRC
MATTER NUMBER 360 OF 2005




BETWEEN




BUHENDWA …………………..…………………………………………
APPLICANT




-and-



DIGNITAS INTERNATIONAL ……………………………………..
.RESPONDENT





CORAM

R Zibelu Banda
(Ms.):Chairperson

Msungama; of Counsel for
the Applicant

Tembenu; of Counsel for
the Respondent

Ngalauka; Official
Interpreter




JUDGMENT


Dismissal-Right
to fair labour practice- Fair procedure prior to disciplinary
action-Sections 56(4) of the Employment Act, Section
57(2) of the
Employment Act and Sections 31 and 43 of the Constitution
-Rules
of natural justice-Bias- Person who holds an inquiry must be seen to
be impartial- Justice must not only be done but must
be seen to be
done
.







Facts


The Applicant complained
that his employment with the Respondent was unfairly terminated
because the procedure leading to the termination
did not conform to
rules of natural justice as stipulated in section 57(2) of the
Employment Act a provision stemming from section
43 of the
Constitution. The Applicant contended that the disciplinary process
did not follow rules of natural justice in that the
same people who
conducted the investigation into allegations leveled against him,
also sat at a disciplinary committee before which
the Applicant
appeared. Further, some of the people who sat on the investigation
and disciplinary committees also formed part of
the Board of
Directors of the Respondent which made the decision to dismiss him.



He prayed
for re-instatement or compensation from date of termination to when
the contract would have been fairly terminated according
to the
agreed terms on 31 July 2007. The Respondent on the other hand
averred that the termination was fair. They contended that
the
process was fair under the circumstances.



Issues


The court was called upon
to determine whether the process leading to termination was so unfair
that the termination was rendered
unfair in terms of section 58 of
the Employment Act.


Assessment of Facts

It is
important in this case to describe the salient facts leading to the
cause of action. The Applicant was Country Director for
the
respondent’s undertakings in Malawi. He received communication from
Mr Fraser that the said Mr Fraser was traveling to Malawi
from
Canada. He did not inform the Applicant the nature of business he was
coming to transact in Malawi. The court agrees with
the Applicant
that as Country Director he was entitled to know the nature of
business that The Executive Director Mr Fraser was
coming to Malawi
for. This is because the Applicant was entrusted with running the
Malawi office and ought to have known what was
going on in his
jurisdiction.




Next the
Applicant received a letter of suspension dated 3 October 2005 asking
the Applicant to go home to pave way for investigations
into some
serious allegations against him. The letter was written and signed by
Mr Fraser. Of noteworthy is the fact that the
letter forbade the
Applicant from showing up at the office and from contacting anyone at
the office.



According
to JF 7, an exhibit tendered by the Respondent prepared by Mr Fraser,
outlining the events leading to the termination;
on 26 September
2005, Mr Fraser and Ms Rouleau were mandated to carry out
investigations into the Applicant’s misconduct. The
investigations
were carried out without the accused’s side. The investigation
report therefore comprised only one side of the
story. This report
was submitted to Mr Orbinski, President of the Respondent
organisation to enable him prepare for a scheduled
meeting with the
Applicant. His preparations were already biased at this stage as he
only had one side of the story.




On 10
October the Applicant was invited to a disciplinary hearing to answer
four different charges. He was advised by Mr Fraser
that he was to
attend a disciplinary meeting with James Orbinski, James Fraser and
Katherine Rouleau. The role of the two investigators
into the
Disciplinary Committee meeting was not disclosed to the Applicant.
Therefore the court agrees with the Applicant that
these people were
and formed part of the Disciplinary Committee. Participation in the
deliberations can not be confined to verbal
communication, the fact
that they were physically in attendance was already prejudicial. It
is trite that justice must not only
be done but must be seen to be
done.



The
disciplinary meeting was chaired by Mr Orbinski. The Respondent
informed court that in fact this Disciplinary Committee comprised
of
one person: Mr Orbinski, President and Chairman of the Board of
Directors for Dignitas. The justification was that it was too

expensive to fly members of this committee into Malawi for the
hearing. Disciplinary procedures form part and parcel of terms and

conditions of service and these come at a cost. If the Respondent is
not prepared to spend for fair procedure, then perhaps they
are in
the wrong business.




After the
hearing Mr Orbinski, Mr Fraser and Ms Rouleau compiled a report (See
JF7). This report was sent to a full Board for consideration
which
happened to be chaired by Mr Orbinski, the Disciplinary Committee
member who single handedly conducted a disciplinary hearing
and
unilaterally made a recommendation of termination for himself to
consider not only as Chairman of the Board of Directors but
also and
more importantly so as President of this organisation.



Procedural
Fairness


The Respondent in this case
commenced a disciplinary action by way of suspension before the
decision to terminate was made. The
Applicant complained that the
process leading to the suspension was unfair in that he was not given
an opportunity to be heard.
The court has also found in the facts
that the Applicant was not even given an opportunity to know the
charges for which he was
suspended neither was he allowed to reflect
and prepare for these allegations as he was denied access to contact
with other members
of staff. Section 56 (5) of the Employment Act
provides that in deciding whether the employer has acted reasonably
(in a disciplinary
action) regard shall be had to the procedure
followed by the employer.



The
procedure envisaged in this provision is none other than due process,
where an employer must inform the employee the nature
of allegations
against him that necessitate a disciplinary action. An employee must
know sufficiently what is being said against
him so that he can
properly put forward his own case, even for purposes of a suspension,
see Bentley Engineering Co. Ltd V Mistry [1978] IRLR 436 EAT.




Section
57(2) of the Employment Act provides that the employment of an
employee shall not be terminated for reasons connected with
his
capacity or conduct before the employee is provided an opportunity to
defend himself against the allegations made, unless the
employer
cannot reasonably be expected to provide the opportunity. This
provision codifies principles of natural justice enunciated
in
section 43 of the Constitution.



In Khoswe
V National Bank of Malawi
[Civil Cause Number 718/2002
(unreported)], the High Court discussed tenets of natural justice in
the following terms:







Where
facts of a case are in dispute, it is necessary to give an oral
hearing to satisfy the rules of natural justice or the
duty to act
fairly. It is a fundamental principle of natural justice that
where the duty to act fairly demands an oral hearing,
there is a
right to cross examine witnesses.




It
is also a general principle of law that a person who holds an
inquiry must be seen to be impartial, that justice must
not only
be done but must be seen to be done, that if a reasonable observer
with full knowledge of the facts would conclude
that the hearing
might not be impartial that is enough. Even if the decision maker
has not been biased at all, a decision
may still be quashed if
they have any professional or personal interest in the issues,
because justice must be seen to be
done.







In the
instant case, the full board comprising Mr Orbinski, sat to consider
the one sided investigation report and the Applicant’s
responses.
There is no mention in the said JF 7 whether the Applicant was given
an opportunity to confront his accusers. There
was no complainant at
the hearing. The allegations were serious enough to warrant an
opportunity to cross examine witnesses and
this opportunity was
imperative in a case where the sole committee member relied entirely
on written witnesses’ statements in
controverted matters, see
Louies V Express Foods Group Ltd [1990] IRLR 324 EAT.





It is
possible that His Lordship Mwaungulu J in Mpinganjira V Malawi
Development Corporation
[Miscellaneous Civil Cause Number 63/2003
(unreported)] did not reflect on this provision in the Employment Act
at the time he
was considering the matter. It is clearly unfair
labour practice to impose a disciplinary measure even if it is just
to pave way
for investigation without according the employee due
process. This procedure is also stipulated in section 43 of the
Constitution,
which covers any administrative action that has adverse
effect on another person.




The right
to be heard in section 57(2) of the Employment Act goes further than
just asking an employee to state his case or defence
in detail. This
opportunity should not be used just to comply with the requirement
under the laws. It must be real. Where the body
conducting the
process has predetermined the decision or is prejudiced, the right to
fair procedure under section 57(2) is violated.



Thus
although in
Banda v. Unitrans (Malawi) Limited
[Matter Number 27
of 2001 (unreported)]
this
court held that it does not matter whether each of the procedural
requirements has been meticulously observed. It went further
to state
that what is required is for all relevant facts to be looked at in
the aggregate to determine whether the procedure adopted
was fair.



The
circumstances of this case looked at in the aggregate reveal a flaw
in fair labour practice. The court has assessed each and
every aspect
of this case and the conclusion is that there was no attempt to act
fairly. The Respondent was bent on terminating
the services of the
Applicant. The requirements discussed in this matter do not impose
rigid judicial style proceedings but state
the bare necessitates
demanded in an administrative process namely: the process must be
just, fair and reasonable when looked at
in the aggregate. In
Rentokil Ltd V Mackin and another
[1989] IRLR 286 EAT, the Employment Appeal Tribunal held that:








The
test of whether an employer’s decision to dismiss falls within
the band of reasonable responses does not mean that such
a high
degree of unreasonableness must be shown that nothing short of a
perverse decision to dismiss can be held to be unfair.






Finding

The court
finds that the Respondent violated the right of the Applicant to fair
labour practice by denying him a fair procedure
prior to disciplinary
action taken against him. The Respondent’s conduct violated
sections 56(4) of the Employment act, Section
57(2) of the Employment
Act and Sections 31 and 43 of the Constitution. This termination is
therefore unfair in terms of Section
58 of the Employment Act.






Assessment
of Remedy


A date shall be set down to
assess an appropriate remedy under section 63 of the Employment Act.
All parties shall be required to
attend the assessment.




Any
party aggrieved by this decision is at liberty to appeal to the High
Court in accordance with section 65 of the Labour Relations
Act.






Pronounced
this
14th
day of December 2006 at
BLANTYRE






Rachel
Zibelu Banda


CHAIRPERSON