Njilima v Malawi Telecommunications Ltd (IRC 79 of 2005) (79 of 2005) [2006] MWIRC 148 (14 December 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 79 OF 2005


BETWEEN



NJILIMA……………………………..……...…………………………..... APPLICANT


-and-


MALAWI TELECOMMUNICATIONS LTD………...……………...RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Machila; Paralegal Officer for the Respondent

Ntambalika; Assisting the Applicant

Applicant; Present

Ngalauka; Official Interpreter



JUDGMENT

Dismissal-Reason for dismissal- Misconduct- Willful disobedience of company regulations and procedures-Flouting company procedures-Procedure- Opportunity to be heard- and defend oneself-Interference with employer’s decision.

Upon hearing the applicant and upon hearing the respondent the court finds that applicant as Driver was supposed to carry out instructions given to him by his seniors from time to time. However it came out in evidence that the Applicant on several occasions defied his superiors’ instructions to the detriment of the operations of the respondent company.

Willful disobedience of company rules and regulations is serious misconduct warranting summary dismissal; see Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)] and Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


Flouting company procedures has been held in this court to constitute valid ground for dismissal, see Nzangaya V Unitrans Malawi Ltd [Matter Number IRC 32 of 2003 (unreported).


Interference with Employer’s Decision

It has been held in this Court that decisions of employers should not be tampered with if there is no allegation that the process to arrive at the decision was not fair. See the case of Kachingwe &others V Southern Bottlers Mw Ltd [Matter No.162 of 2003(unreported)]. In that case the Court quoted with approval a holding of the Labour Appeal Court of South Africa in the case of County Fair Foods (Pty) Ltd V CCMA & others [1999]11BLLR 1117 (LAC), per Kroon JA:


“[interference] with the employer’s sanction “ is only justified in the case of ……..unfairness.” However, the decision of the arbitrator as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all evidential material before the arbitrator.”


It was heard in the instant case that the applicant had discussions with his employer, on his conduct. He also appeared before a disciplinary hearing prior to his dismissal. There is no compelling reason to interfere with the respondent’s decision.

Finding

The Court finds that the respondent complied with the law. The dismissal was fair according to section 57 of the Employment Act. Action is dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 14th day of December 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON