Kagolo v Malawi Revenue Authority (IRC 347 of 2055) (347 of 2055) [2006] MWIRC 222 (04 October 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 347 OF 2005


BETWEEN


KAGOLO....……….………… ……………................................................APPLICANT


-and-

MALAWI REVENNUE AUTHORITY..…...…………………………RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson
Kalua; of Counsel for the Applicant
Chamkakala; of Counsel for the Respondent
Ngalauka; Official Interpreter

JUDGMENT

Dismissal- Justification-Reason-Negligence-Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself- Right to be real-Charge to be clear-Employee to know charge with sufficient particulars


Upon hearing the applicant and upon hearing the respondent the court finds that the applicant was dismissed for allegedly having acted negligently by leaving his duty post without proper authority. The applicant denied the allegations. He was suspended pending theft investigations. He was invited to a hearing. The notice of hearing did not state the charges or particulars of the theft for which he was put on suspension. Following the hearing the respondent dismissed him for negligence. The applicant challenged the termination alleging that the termination was unfair because he was not given an opportunity to be heard. The respondent on the other hand averred that the termination was fair.


Issue

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


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 a reason 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. 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 the instant case the allegation involved negligence. The applicant was not informed about this allegation before he was invited for a hearing. In court he denied ever being negligent. The issue was therefore disputed in which case, Khoswe supra, demands that there must be an oral hearing. Before the hearing the applicant should have been provided with particulars of the negligence and the nature of the evidence that the respondent relied upon in order for the applicant to prepare for his case.

The right to be heard entails a meeting of people including the complainant, the accused and some referee or third party. The complainant sets out his complaint in detail and the accused responds in explanation or self defence. It must be a fair hearing.


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. The dismissal was therefore unfair on technicality.




Remedy

The applicant is entitled to a remedy under section 63 of the Employment Act. Both parties shall be invited to attend the assessment. 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 this 4th day of October 2006 at BLANTYRE.



Rachel Zibelu Banda
CHAIRPERSON.