IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
IRC MATTER NUMBER 360 OF 2005
BUHENDWA .. APPLICANT
DIGNITAS INTERNATIONAL .. .RESPONDENT
- R Zibelu Banda (Ms.):Chairperson
- Msungama; of Counsel for the Applicant
- Tembenu; of Counsel for the Respondent
- Ngalauka; Official Interpreter
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.
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.
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 respondents 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 Applicants misconduct. The investigations were carried out without the accuseds 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.
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  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 Applicants 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  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  IRLR 286 EAT, the Employment Appeal Tribunal held that:
The test of whether an employers 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.
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 Respondents 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