IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NUMBER IRC 273 OF 2004
MANGATA .. ... ..... APPLICANT
SHIRE BUSLINES LTD . ... ...RESPONDENT
CORAM: R. Zibelu Banda (Ms); Chairperson
Kalua; of Counsel for the Applicant
Tukula; of Counsel for the Respondent
Gowa; Official Interpreter
for dismissal- Misconduct- Negligence-Gross negligence-leading to
loss of property-Procedure- Opportunity to
be heard- and defend
oneself-Interference with employers decision.
Upon hearing the applicant and upon hearing the respondent the court finds that the applicant as General Fitter was responsible for safe keeping and security of respondents tools. On the material day, the applicant was the last person to have custody of keys to a room containing certain tools the subject of the negligence for which he was dismissed. The applicant was required to safely lock up and keep keys in a safe place. However, it so happened that the room that the applicant had last used was burgled into and certain tools were stolen. No one could explain the loss. The applicant had last use of the room and had custody of the keys to the tools. After an investigation and a meeting with the applicant, he was found to be at fault and his services were terminated.
Section 57 (1) of the Employment Act provides that before a person is dismissed the employer must have a valid reason. Gross negligence has been held in this court to be valid reason for dismissal, see Kambewa V Malawi Distilleries Ltd [Matter Number IRC 81/2003 (unreported)].
Section 57(2) of the Employment Act on the other hand, provides that before termination a person must be afforded an opportunity to be heard. In the instant case, the respondent carried out an inquiry and asked the applicant to explain his side of the story in the loss of keys and ensuring theft. This court finds that the respondent complied with this provision.
Interference with Employers 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 11BLLR 1117 (LAC), per Kroon JA:
[interference] with the employers sanction is only justified in the case of ..unfairness. However, the decision of the arbitrator as to the fairness or unfairness of the employers 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.
This court is very slow in interfering with an employers decision to any fair administrative action whose aim is to protect its interests and promote the survival of the industry so that the country can have a thriving labour market that is economically viable therefore capable of creating employment opportunities. There are no compelling reasons to interfere with the respondents decision in this matter.
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 29th day of December 2006 at BLANTYRE.
Rachel Zibelu Banda