Mwali v SDV AMI Malawi Ltd (IR 191 of 20044) (191 of 20044) [2006] MWIRC 156 (27 December 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 191 OF 2004


BETWEEN



MWALE..…………………………..……...…………………………..... APPLICANT


-and-


SDV AMI MALAWI LTD…………………….………...……………...RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Jere; Travel Manager for the Respondent

Applicant; Present

Gowa; Official Interpreter



JUDGMENT

Dismissal-Reason for dismissal- Misconduct- Negligence-Underperformance-Incapacity-Warnings--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 Assistant Travel Manager was responsible for among other things advising clients on travel arrangements, preparation of itinerary and bookings. It was heard that on several occasions the applicant made poor travel arrangements while in others gave wrong advise or wrong bookings causing costly inconveniences to clients and loss of business to the respondent. The applicant was on several occasions confronted about these incidents and advised to change and improve for the better. The applicant did not improve. He was given a hearing that led to his termination of employment.

The England Appeal Court in Polkey V A E Dayton Services Ltd [1987]3 All ER 974 at 983-984, held; per Lord Bridge of Harwich:

“An employer having prima facie grounds to dismiss ……will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’, which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of incapacity, an employer will normally not act reasonably unless he gives the employee fair warning to mend his ways and show that he can do the job”


Warning Procedure

Warnings are very important especially in big organizations. In A J Dunning & Sons (Shop Fitters) V Jacomb [1973]IRLR 206 NIRC, it was held that the question of whether or not an employee was given a warning is not a matter of procedure; it is a matter of substance. Written warnings will assist the employer where there is dispute as to the general performance or conduct of its employees. Warnings are also important because they put the warned employee on guard.


In the instant case the applicant was underperforming and was also grossly negligent. His negligence cost the respondent clients and therefore business. In this competitive industrialized world no employer would tolerate careless and negligent employees. As doing so would not be in the interests of the business and the economy. Therefore the court finds that the respondent had a valid reason for terminating the services of the applicant.


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 acts of negligence and incompetence. He also appeared before a 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 27 th day of December 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON