Chipinga v New Building Society (IR 97 of 2002 ) (97 of 2002) [2006] MWIRC 20 (09 March 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


THYOLO REGISTRY


MATTER NO. IRC 97 OF 2002


BETWEEN


CHIPINGA..……….………… ……………................................................APPLICANT


-and-

NEW BUILDING SOCIETY……....…...…...…………………………RESPONDENT



CORAM: R. Zibelu Banda; Chairperson
Mwala; of Counsel for Applicant
Salima of Counsel for the Respondent
Gowa; Official Interpreter

JUDGMENT

Dismissal- Justification-Reason-Misconduct- Dishonesty- Fraud-Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself-Police investigations-Not to take the place of administrative action-Criminal proceedings-Do not have a bearing on administrative proceedings-Employer to comply with administrative procedures.


Upon hearing the applicant and the respondent the court finds that the applicant was alleged to have been involved in some acts of fraud involving a client’s account. The respondent carried out some investigations, which included questioning the applicant. The officer carrying out the investigations was also according to the evidence of the respondent responsible for hearing the applicant. In other words, one officer named Lewanika carried out investigations and the same Lewanika had a meeting with the applicant, which meeting the respondent calls a hearing. The matter ended up in criminal court where the applicant was acquitted.


Issue

The issue is whether the applicant was given a right to be heard and defend himself.


The Law

Procedural Justice

Section 57(2) of the Employment Act states: ‘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.’


Where a reason is given for taking disciplinary action, the employer is obliged to allow the employee to explain his side and defend himself. In the case of Fairmount Investments Limited vs. Secretary of State (1976) 2All ER 865, it was stated that if a party is adversely affected by any evidence and is given the right to comment on that evidence, the principle of right to be heard is complied with.


In the case of Khoswe V National Bank of Malawi [Civil Cause Number 718/2002 (unreported)] it was stated that 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. A fair hearing becomes the employer’s justification for termination of employment where there is a disagreement of facts. The duty to apply principles of natural justice does arise beyond the broader principle that where one is to affect another’s rights adversely for a reason, the other reasonably expects to be satisfied of the reason. The hearing must be fair and not predetermined. In the hearing the allegations must be outlined to the applicant and he must be asked to answer to the allegations separately.


In Polkey v A E Dayton Services Ltd [1987] 3 All ER 974,at 983, the House of Lords quoted with approval the following observations of Neill LJ sitting in the court of appeal in the same case [1987] 1 All ER 984 at 989:


“Where an employee is dismissed for alleged misconduct and he then complains that he was unfairly dismissed, it is to be anticipated that the industrial tribunal will usually need to consider (a) the nature and gravity of the alleged misconduct, (b) the information on which the employer based his decision,(c) whether there was any other information, which that employer could or should have obtained or any other step which he should have taken before he dismissed the employee.”


In Read v. Phoenix Preservation Ltd (1985), The Employment Appeal Tribunal (EAT) said it would be:


“wholly improper for an employer to allow the police to be present at an internal hearing without the employee’s foreknowledge and consent. In any event, a police officer should not be allowed to conduct the disciplinary hearing on behalf of the company”.


In the instant case the evidence showed that the respondent did not ask the applicant to state his case or defend himself. Instead the respondent made the applicant to be arrested by police and let the police carry out investigations leading to criminal prosecution. The only basis for dismissing was the fact that the applicant was implicated in the fraud and that one man conducted investigations and allegedly also heard the applicant. It must be noted that the right to be heard is wider than a meeting of two persons discussing an issue. The right to be heard entails a meeting of people including the complainant, accused and some referee or third party, where the complainant sets out his complaint in detail and the accused responds in explanation or self defence. It must be seen to be a fair hearing.

The meeting that took place between the applicant and the investigator can not be said to have satisfied the duty to provide the employee with the right to be heard, even in the sense of Fairmount Investments Limited. If anything the investigations result should have been submitted to a third party to conduct the hearing where the investigator should have been invited as a witness if necessary. Fraud is a serious act of misconduct. The applicant disputed his involvement it was therefore imperative according to the law for the employer to hear the applicant’s side of the story. In his defence the applicant should have been allowed to confront the respondent’s witnesses and representations if any.


The court finds as a fact that the applicant was not given an opportunity to explain his side before dismissal. The respondent failed to comply with procedure as demanded by section 57(2) of the Employment Act.


Finding

The court finds that the respondent might have had valid reason for dismissal but they failed to comply with the law by failing to afford the applicant the opportunity to be heard and defend himself before he was dismissed. The dismissal was therefore unfair on technicality.


Remedies

Where a party succeeds in a case of unfair dismissal, the court is empowered to award that person a remedy. These remedies are provided in section 63 of the Employment Act. However before awarding any remedy the court must assess the case from the facts to determine the appropriate remedy. As such remedy is not automatic and is not uniform, as the remedy will always depend on the circumstances of the case.


Assessment of remedy: An appropriate remedy will be assessed on a date to be fixed. The applicant to secure date of hearing of assessment and to process the notice.


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 9th day of March 2006 at THYOLO.



Rachel Zibelu Banda
CHAIRPERSON.