Court name
Industrial Relations Court
Case number
IRC Matter 251 of 2002

Phiri v Portland Cement (IRC Matter 251 of 2002) [2006] MWIRC 220 (01 October 2006);

Law report citations
Media neutral citation
[2006] MWIRC 220

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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