Phiri v Portland Cement (IRC 251of 20022 ) (NULL) [2006] MWIRC 220 (02 October 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 251 OF 2002


BETWEEN



PHIRI…………………………………..……...…………………………... APPLICANT


-and-


PORTLAND CEMENT………………………………...……………...RESPONDENT


CORAM: R. Zibelu Banda (Ms); Chairperson

Mwafulirwa; Human Resources Manager for Respondent

Applicant; Present

Gowa; Official Interpreter



JUDGMENT

Dismissal-Reason for dismissal- Misconduct- Willful disobedience of company regulations and procedures-Flouting company procedures-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 driver was assigned a vehicle to drive. He did not take up the assignment and no valid reason was given for such misconduct. The applicant had three previous warnings for misconduct. The applicant was not invited for a hearing because he had absconded at the time of dismissal. The letter of dismissal was delivered to his home where he was not found. The applicant appealed against this decision but the appeal’s committee found the reasons of appeal frivolous and upheld the decision to dismiss. The court finds that the applicant breached his conditions of employment by refusing to take lawful instructions from his superiors and absconding.


Willful disobedience of company rules and regulations is serious misconduct warranting summary dismissal; see Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)] and Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


Flouting company procedures has been held in this court to constitute valid ground for dismissal, see Nzangaya V Unitrans Malawi Ltd [Matter Number IRC 32 of 2003 (unreported).



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.”


The court will not interfere with the decision of the respondent because the applicant through warnings for misconduct knew the consequences of his actions. He was a man who showed no regard for his employment. It was only after his dismissal that he realized that he needed the job but too late to reverse his series of acts of misconduct. A opportunity to be heard is given where an accused can be traced and not where he has absconded.


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 2nd day of October 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON



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