IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 275 OF 2004
- GAWANI. . .APPLICANT
- CORAM: R. Zibelu Banda (Ms); Chairperson
- Limbe; of Counsel for the respondnet
- Gowa; Official Interpreter
Dismissal-Justification-Reason-Gross negligence-Leading to loss of property- Procedure for dismissal- Opportunity to be heard-Hearing.
The Applicant was employed on 25 April 1995. He was dismissed on 12 November 2003. The reason for dismissal was gross negligence leading to loss of the corporations clients property. The applicant took out this action alleging that he had been unfairly dismissed. The respondent averred that the termination was fair as the respondent had complied with both substantive and procedural justice.
The court was called upon to decide whether the dismissal was fair or unfair. In determining this question the court must look at the reasons for the dismissal, whether they are valid and justify the respondents action. The court must also look at the procedures that were used before, during and if necessary after termination.
Sources of the law
The cause of action arose after 2000, therefore the Employment Act 2000 apply and shall be used where necessary. The Constitution is the supreme law of the land. However, in this case it can only be applied where the Employment Act is inadequate or contain provisions that are inconsistent with the Constitution. Common law and case law shall be used to interpret and support the statutory provisions, since the law in this court is just developing. It is also the practice in common law jurisdictions to illustrate statutory provisions with case law and text books by renowned authors.
In the matter of Nazombe V Malawi Electoral Commission [Matter Number IRC 320 of 2002(unreported)] it was found that the Employment Act 2000 requires substantive justice (reasons) and procedural justice (right to be heard) to be complied with for a dismissal to be fair. Where the employer does not comply with one of them or both, the dismissal is deemed unfair. The position therefore is that at times a termination may be lawful but unfair because the employer did not follow the statutory requirement under section 57 of the Employment Act.
Section 57(1) Employment Act The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on operational requirements of the undertaking.
The burden is on the respondent to show that the reason for dismissal was valid. In this case the respondent was able to show that the applicant failed to produce parcels under his custody. This was gross negligence as the failure to take reasonable care of these parcels led to loss of the said parcels. The transmission of parcels from one place to another is the respondents core business, hence loss of such nature constituted gross negligence. Gross negligence has been held to constitute valid reason for dismissal; see Kambewa V Malawi Distilleries Ltd [Matter Number IRC 81/2003 (unreported)].
In the instant case the court heard that applicant had custody of some parcels for clients. The applicant failed to account for these parcels when it transpired that they could not be traced. The applicant was the last person who had contact with the parcels as evidenced by documents signed by himself. The applicant had no valid explanation to make regarding the loss of the parcels. The court finds therefore that the applicant was negligent as he failed to secure the respondents property.
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 employers 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 anothers 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 this matter, the applicant was given a reason for the termination. He was afforded an opportunity to explain his side and defend himself at a hearing constituted for that purpose. The applicant failed to give an satisfactory explanation for the loss of the parcels. The conclusion of the respondent could not be faulted. The reason was valid and the hearing was fair.
The court finds that the respondent complied with section 57(1) by providing a valid reason for dismissal. The respondent furthermore complied with section 57(2) by allowing the applicant to be heard. This action is therefore dismissed in its entirety.
Any party aggrieved by this decision is at liberty to appeal to the High Court on matters of law and or jurisdiction only within 30 days of this judgment.
Pronounced in Open Court this 9th day of March 2006 at BLANTYRE
Rachel Zibelu Banda