Court name
Industrial Relations Court
Case number
IRC Matter 7 of 2005

Njilima v Malawi Telecommunications Ltd (IRC Matter 7 of 2005) [2006] MWIRC 228 (13 December 2006);

Law report citations
Media neutral citation
[2006] MWIRC 228

IN THE INDUSTRIAL RELATIONS COURT OF
MALAWI




PRINCIPAL
REGISTRY




MATTER
NUMBER IRC 79 OF 2005




BETWEEN








NJILIMA……………………………..……...………………………….....
APPLICANT




-and-




MALAWI TELECOMMUNICATIONS
LTD………...……………...RESPONDENT






CORAM: R.
Zibelu Banda (Ms); Chairperson


Machila; Paralegal
Officer for the Respondent


Ntambalika; Assisting the
Applicant


Applicant;
Present


Ngalauka;
Official Interpreter






JUDGMENT



Dismissal-Reason
for dismissal- Misconduct- Willful disobedience of company
regulations and procedures-Flouting company
procedures-Insubordination-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 supposed to carry out instructions given to him by his
seniors from time to time. However it came out in
evidence that the
Applicant on several occasions defied his superiors’ instructions
to the detriment of the operations of the
respondent company.

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.”




It
was heard in the instant case that the applicant had discussions with
his employer, on his conduct. He also appeared before a
disciplinary
hearing prior to his dismissal. There is no compelling reason to
interfere with the respondent’s decision.

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 14th
day of December 2006 at
BLANTYRE.










Rachel
Zibelu Banda


CHAIRPERSON









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