IN THE INDUSTRIAL RELATIONS COURT OF
NUMBER IRC 251 OF 2002
PORTLAND CEMENT ... ...RESPONDENT
Zibelu Banda (Ms); Chairperson
Resources Manager for Respondent
for dismissal- Misconduct- Willful disobedience of company
regulations and procedures-Flouting company procedures-Procedure-
Opportunity to be heard- and defend oneself-Interference with
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.
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
appeals 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.
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
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).
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
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.
court will not interfere with the decision of the respondent because
the applicant through warnings for misconduct knew the
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.
finds that the respondent complied with the law. The dismissal was
fair according to section 57 of the Employment Act.
dismissed in its entirety.
aggrieved by this decision is at liberty to appeal to the High Court
within 30 days of this judgment.
day of October 2006 at BLANTYRE.