Chirwa v Mzuzu City Assembly (IRC 78 of 2006 ) (78 of 2006) [2006] MWIRC 150 (15 December 2006);

Share
Download: 

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 78 OF 2006


BETWEEN

CHIRWA………………….. ……………....................................................APPLICANT

-and-


MZUZU CITY ASSEMBLY………………...…………………………RESPONDENT


CORAM: R. Zibelu Banda (Ms); Chairperson
Applicant; present
C C Phiri; Human Resources Officer; for respondent
C Banda- Administrative Officer; for respondent
Namponya; Official Interpreter

JUDGMENT

Background

The applicant worked for four years for the respondent as Security Guard. In 2002 as he was on night duty he confronted a robber. In his self defence he beat up this robber who died three weeks later. The applicant had prior to this incident been attacked several times while protecting the respondent’s property as Security Guard. The applicant was charged and convicted of manslaughter. Upon his release he visited the respondent to claim his job back or in lieu receive his terminal benefits. The respondent without much ado referred to their regulations which stipulate that if a person is convicted of any criminal offence by a court of law he shall lose his job and forfeit his terminal benefits. Thus they sent the applicant away with nothing for the four years that he worked diligently and sacrificed his life for.


Assessment of the Facts The respondent did not hear the applicant defend himself or state his case in mitigation. This was a clear case where the respondent should apart from referring to their archaic regulations which run contrary to the Constitution in as far as they did not provide for fair administrative action, meaning that before the summary dismissal the applicant should have been heard, must have considered the nature of the case for which the applicant was convicted, the circumstances under which the crime was committed and whether circumstances of this crime had any bearing on the conditions of employment for a watchman.


First it must be borne in mind that criminal conviction on its own is not ground for dismissal without affording the applicant the right to be heard. The Employment Act does not distinguish when and what offences an employee should be given a hearing. Rules of natural justice must be applied equally in all cases where administrative action is contemplated.

The Law

It was held in Harris (Ipswich) Ltd V Harrison [1978] IRLR 382 EAT, that where an employee has been arrested and charged with a criminal offence alleged to have been committed in the course of his employment, there is nothing in the law of England and Wales to prevent an employer, before dismissing, from discussing the matter with the employee or his representative. On the contrary, it is proper to do so. What needs to be discussed is not so much the alleged offence as the action the employer is proposing to take.


The respondent in this case cited section 59 of the Employment Act, to the effect that it allows them to dismiss summarily any employee who is guilty of serious misconduct inconsistent with the fulfillment of the express or implied conditions of his employment…


The point to note about section 59 is that it does not anywhere allow the employer to summarily dismiss an employee before following the conditions set out in section 57 of the Employment Act. These conditions are first that there must be a valid reason and secondly if the reason is connected to the conduct or capacity of the employee, they must provide that person with the right to be heard. In this case the court must determine whether the reason for dismissal was valid.


Section 59, the part that the respondent read out provides for misconduct inconsistent with the fulfillment of express or implied conditions of employment. Can it be said that a Security Guard while in the course of protecting his employer’s property and in self defence who causes grievous bodily injury to a robber who dies three weeks later has committed misconduct inconsistent with the fulfillment of express or implied terms of his conditions of employment to protect his employer’s property? The simple answer is no. This was a man who was performing his duties as guard but perhaps applied excessive force in trying to protect property and defend himself. This was a matter for the criminal court to decide. For purposes of employment however, looking at the job description for watchman, no reasonable man would find that this was an act of serious misconduct inconsistent with the conditions of a watchman.


The court finds therefore that the act which was used as a reason for dismissal was no valid reason under the circumstances of this case. Of course it would have been different if for example, manslaughter was committed in the course of fighting for a prostitute or anything unrelated to the functions of a security guard.


The second limb of section 57 is to determine whether the employee was heard. In this case there was no dispute that when the applicant was released from prison he went to the respondent assembly to present himself. Instead of discussing with him, they told him that his services were summarily dismissed.


There is no question that the employer could not reasonably be expected to provide the opportunity because the applicant presented himself to the employer immediately after his release from prison.


Finding

This was a clear violation of the applicant’s right to fair labour practices. A violation to his right to work. A violation to his right to be fairly dismissed for a valid reason and after a fair procedure. This dismissal was unfair both substantively and procedurally.


Reliefs

The applicant prayed for severance allowance for the four years that he worked. The court having found that the dismissal was unfair invokes the natural remedy for unfair dismissal which is provided for under section 63 of the Employment Act. It must be noted that this remedy is a matter of law and therefore there was no requirement for the applicant to plead it, as one can not plead the law. Further that the applicant is an elderly man, unrepresented and semi illiterate the court could not expect him to contemplate such action other than the immediate matter of severance allowance.


The applicant is therefore awarded severance allowance for four year at a salary of MK 1 201 per month. The total under this head is MK 2 402-00 being two weeks wages multiplied by four years. The applicant is also awarded notice pay being MK 1 201-00.


Compensation

The applicant is further awarded compensation for unfair dismissal being wages from 2002 when he got his last salary to the date of this judgment 15 December 2006 to be calculated based on his last salary of MK 1 201-00 plus house allowance.


Order

The respondent is ordered to appear before the Assistant Registrar of the High Court to produce the last payslip of the applicant for purposes of calculating the compensation. This order is with immediate effect.


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: See section 65 (2) of the Labour Relations Act 1996.


Pronounced in Open Court this 15th day of December 2006 at MZUZU.



Rachel Zibelu Banda

CHAIRPERSON