Kamlongera v Malawi National Examination Board (Record) (IRC 318 of 2002) (318 of 2002) [2006] MWIRC 28 (20 March 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 318 OF 2002


BETWEEN


KAMLONGERA ……………………………………………………….. APPLICANT


-and-


MALAWI NATIONAL EXAMINATION BOARD ………………… RESPONDENT



CORAM: R. ZIBELU BANDA (MS) – CHAIRPERSON

Mussa of Counsel for the Applicant
Kaphale of Counsel for the Respondent
Chinkudzu – Official Interpreter


RECORD


APPLICANT: Takes oath and states: I am Cecilia Kamlongera, I once worked for Malawi National Examination Board from November, 1987 – 6th May, 2002 when I was suspended from the Boards services and eventually forced to retire through a letter dated 16th May, 2002. I joined as a Subject Officer and rose to the rank of Senior Subject Officer, Principal Subject Officer, in December, 1994 and became the Director of Examination Department I served till I was forced to retire.


In 2000 the then Executive Director and her Department were re-assigned duties elsewhere the Executive Board asked me to Chair and make sure that exams were re-written which I did in Acting capacity as Chief Executive from October 2000 – March, 2001. I was suspended from the board after Malawi Broadcasting Corporation announced MSCE 2001 results in the morning of 11th March, 2002. In the afternoon of the day, I had a departmental meeting with my colleagues, during the meeting my door opened and in came the then Honourable S. Kaphuka, Deputy Ministry of Education – with the Principal of Kaphuka Secondary School. The meeting was adjourned. He said his school had a lot of anomalies requiring correction. He pleaded with me to sort out the problems. I asked the Principal Examination Officer – to remain with me.


We went through the anomalies, the anomalies involving his school were: some candidates who had entered for some subjects had the subjects blank, other had a grade when they did not enter the subject, other had absent when they did not write the exams. We went through the school list ticking the anomalies. The list was handed over to Principal Examination Officer, who gave them to Mrs Mfune responsible for MSCE. The following day, I went to report to the Executive Director that Honourable S. Kaphuka had been to my office. The Executive Director said Ministry officials were not happy that Honourable S. Kaphuka should be coming to the Board’s offices. It should be the Principal of the school coming to the offices. As we were sorting out anomalies from several schools, we would be sorting one type of anomaly e.g. an ID anomaly – in the process the computer coming out which we presumed was solving the problem would create a different problems! My officers noted the anomalies and brought them to my attention.


The MSCE examination officer brought the anomalies to me with the scripts of the candidates confirming the anomaly. The Honourable S. Kaphuka came to the office again, found me in the middle of a meeting. He wanted to see the Executive Director this time. I rung the Executive Director’s office who told me he was in. The Executive Director advised me that we should not deal with the Honourable Kaphuka but the Headmaster. The Honourable Kaphuka was informed that the Executive Director was in. on 2nd May, 2000 I was invited to the Executive Director officer’s office, he handed me a letter of suspension; alleging six acts of misconduct –


  1. Breach security requirements of the board of allowing access into the no go zone part of the board by Honourable S. Kaphuka – without authority of the Executive Director.


  1. Receiving or inviting Honourable S. Kaphuka to the Examination Department without informing or receiving authority or consent of Executive Director.


  1. Receiving or inviting Honourable S. Kaphuka to the Examination Department after being advised not to by the Executive Director on 12th May, 2002.


  1. Failing to verity the accuracy of the results released to Kaphuka Secondary School.


  1. Compromising the position of the board and intergrity of the examination process by releasing results without verifying accuracy.


  1. Manipulating results of Kaphuka Secondary School without authority.


I was informed in the letter to meet the board on 5 May, 2002.


Court : AP 1 letter of suspension


I responded to the allegations in writing. I met the committee of the board. I asked them that since the alleged misconduct were committed in the presence of members of the examination department – some witnesses ought to have been called. I gave the names of three witnesses to be called.


The request was not granted. I was told that some of them had gone to the field. The meeting was on 6th May, 2002. In my presentation I was responding to the six allegations of misconduct.


Court: AP 2 – response to allegations.


Another anomaly in the disciplinary hearing was that I asked for evidence that I had invited Hon. Kaphuka to the Board offices – I asked them to investigate the computer person who printed the anomalies for Kaphuka, I also asked for the person to whom the computer print out on Kaphuka results was given. The issues were never addressed.


Looks at letter – 16th May, 2002 – order of retirement – when I received this letter the matter of my case had – not been finalized. The witnesses were never invited that I had called for.


Terminal benefits –


K495000.00 – and other irregular payments.


Court: AP 3 – Termination letter.


The retirement age for the board is 60 years. I was 51 years old at the time. I made various applications in December, in 2002 Malawi Institute of Education – employed me.


UNFAIR


  • I did not commit any of the six alleged acts of misconduct.

  • I asked for witness but they were not brought.

  • I worked very had – dedicated during the crisis but instead I got this termination


Court: Adjourned to a fixed date for XXN and for respondent’s case.



R. Zibelu Banda (Ms)

CHAIRPERSON



CORAM: R. ZIBELU BANDA (MS) – CHAIRPERSON

Kaphale of Counsel for Respondent

Mussa of Counsel for Applicant

Chinkudzu – Official Interpreter


Court: We proceed to XXN then to respondent ‘s case.


Cross Examination: I was Head of Examination Department. It was the same department. It was a sensitive area. It was prohibited from outsiders – a year before national examination were cancelled – the respondent was trying to bring integrity to the examination board.


Honourable Kaphuka was not allowed into my office – it was abnormal for him to come into my office. Kaphuka’s conduct was questionable i.e. about the manner in which they carried out their results – I was not responsible for Kaphuka’s coming into my office. He was the Deputy Ministry of Education – I could not chase him out of the office. I did not walk out of the office. I don’t know whether it was necessary for me to take him to a neutral place for a meeting. He did not bring the results – the results were in my office. The control of security was not under me.


If the security people did their work they could not have allowed Kaphuka to come into my office. Kaphuka came straight to my office, I assumed the Executive Director was not in his office, but in the morning I explained to Executive Director. The Executive Director informed me that the Ministry was not happy with the visit of Kaphuka – he said we should deal with the Headmaster. In the year the results for Kaphuka had anomalies – we tried to sort out the problems – quality control – the Examination Department did what was humanly possible – whenever anomalies arose – we could rectify them – we also consulted the Executive Director on the shoddy computer operations – the anomalies were coming from computer operations .


I was asked to go to Blantyre with the Executive Director to give a Press Conference – I was not feeling well. Honourable Kaphuka came back to my office – the next morning – I phoned the Executive Director – I told Kaphuka to go and see the Executive Director – I did not entertain Kaphuka. The security people were not under my control – it was not my responsibility to check on the people who visited my office.


Honourable Kaphuka was the Deputy Education Minister – at the time. He came to sort out problems from his school. I told Executive Director – to inform the Deputy Minister not to come to my office. That was why on the 2nd visit I informed Kaphuka to see the Executive Director I did not ban Kaphuka from coming to my office because I was too small to stop a Deputy Minister of Education from coming to my office. The Executive Director should have done that. I don’t know whether the Minister was happy with Kaphuka’s conduct.


Suspension – I was suspended on 21st May, 2002 – I gave a written response on the allegations – it is possible I did not explain all that I had to explain because I had not established a number of things including the one who had come up with a print out – computer – I established some facts afterwards.


Inquiry - I was invited to an inquiry – the inquiry was chaired by Kambilonje. I was the accused. I asked for witnesses to the inquiry including Deputy Ministry Kaphuka – because one of the accusations was that I invited Kaphuka to the office –


  • There were security posts throughout it was the responsibility of the security personnel to stop him.

  • Inquiry – I asked for witnesses to the inquiry but they were never brought to the inquiry –

  • I don’t know whether other people attended the hearing I asked for witnesses to come to the hearing – for my defence.

  • According to conditions of service I was obliged to entertain Kaphuka in the office. When he came to the office I opened my office. I was processing results as Head of Exams – people were asked to inquire about the results – Kaphuka came as Deputy Minister of Education – he came with his Headmaster – I was sorting out problems-

  • As Deputy Ministry he should not have come to the Board – he took advantage of his position – I could not chase him away from my office. I was obliged to be courteous to visitor of the board. I did not flout the Executive Director’s authority of 12/3 – I took the Honourable Kaphuka into the Executive Director’s office after he came to my office. I did not give him any results – on the 2nd day. We went through my results print out to check anomalies – on the first day. Honourable Kaphuka did not stay long in the office – this is why I asked for witnesses at the inquiry to testify on the things that you are asking. I am not aware of the presence of any other person who had come to the board to inquire about the results.


Re examination: I did not invite Hon. Kaphuka to my office. I asked for witnesses to the inquiry but they did not come, they were not brought. I informed the Executive Director of the presence of Kaphuka in my office. The Executive Director told me to inform Kaphuka to send his Headmaster and not for him to come in person – Ministry of Education never came to the Board’s offices – I could not inquire on the presence of any visitors to my office. The security personnel did not informe me of the presence of the Deputy Minister. I asked for witnesses to come to the inquiry – but they were not brought.


RP1: Takes oath and states: I am Mathews Matemba, I am Executive Director for MANEB – since 8th February, 2001 – I took up the position to sort out problems at the Board – Prior to my coming in we had the problem of withdrawal of MSCE results because of excessive leakage – I needed to carry out reforms and strategies. I created no zone areas – including the Department of Examination; - Research and Computer Services Department – Management was aware of that – this came out at Head of Department Meeting – staff were subjected to search – anybody not staff would only be admitted under specific permission.


On 11th March, 2002 – we had released MSCE results – truck went out with results– Hon. Kaphuka phoned about results I told him results for his school were already on the trucks for Blantyre – I told him he needn’t come to the office – I told him his copy was in the Ministry in his capacity as Deputy Minister. He said he was already on his way – I told him to come straight to my office – I made arrangements at the gate to allow him straight to my office – I saw him and told him to refrain from coming to our offices – he looked for the results – I walked him out – as we were getting out of the gate – we met his brother inlaw seeking results for New Era – I told Kaphuka not to come back – I did not expect him to come back to the premises – I did not tell security not to allow him in.


As I was walking downstairs around 7 p.m. I was surprised to see Hon. Kaphuka vehicle in the car park– I asked-I was told that Hon. Kaphuka had been around since 4 p.m. I was pained –


On 12th March, 2002 I called the Applicant to confirm that Kaphuka was in her office – she said she received him as a Minister – I asked her why Minister did not see me as Executive Director but she did not respond to that. I advised her never to allow Deputy Minister again. I got a call about Press Conference in Blantyre with Minister I asked Applicant to come with me to the Press Conference she said she had a bad foot she did not come with me. I attended the press brief with other staff –


On 13th March, 2002 – I was surprised to find vehicle of Kaphuka parked at the Board – I did not understand how, when he had been advised not to come in – I went to my office – Applicant called to inform me of Kaphuka’s presence – Kaphuka came to my office flashing results of his school – he said he was happy anomalies were sorted out – I confronted him about his coming to the Board premises for security reasons.


Later the Applicant came to me to say the results of Kaphuka had anomalies – I told applicant to tell Kaphuka not to release the results –During this time Kaphuka results raised a lot of questions – Kaphuka would visit MANEB every time results were released – this caused problems –Any queries should be in writing about results according to Press Release .


Court – RP 1 Unsigned Press release draft for 2005


Instructions are that queries should be made in writing. If brought by hand should be dropped at the reception – the queries should be made by Head of School not proprietor – this is to ensure that whoever brought queries shouldn’t been seen to influence results – there was no way that a Junior Officer could entertain a Deputy Minister – this was responsibility of Executive Director to see Deputy Minister. Previous Deputy Minister came to the offices – to visit in official capacity. We sent report to Ministry and we were asked to meet the Minister with the applicant and others –


Looks at document – minutes of the meeting – this meeting was at ministerial level – it was to establish the Deputy Minister’s conduct –


Court: RP 2- minutes for Deputy Minister conduct


The Board called for an Extra ordinary meeting – after hearing the Applicant – it was ordered that the applicant be suspended. The charges were spelt out in suspension letter. Latter she, applicant was called to meeting – chaired by Kambiloje- I was called to the meeting to be interviewed on the events – the committee came up with recommendations- dismissal –


The Board considered the recommendation – they considered her age and length of service – the Board decided instead to retire her- The applicant should’ve referred the Hon. Dep Minister and proprietor of school with the stand instructions of no go zone – to the Executive Director – instead she went a head and entertained him as Minister –


On 13th March, 2002 – Applicant told me that Kaphuka wanted to see me - he did flashing results – the applicant told me the results had anomalies. The Board could not deal with politicians – it was therefore for the Ministry to deal with the Deputy Minister. We had no authority to deal with the Deputy Minister.


XXN: I was not informed that Hon. Kaphuka was in the premises. On the second day – The Applicant did not call me to tell me that Hon. Kaphuka was in the premises – she said Hon. Kaphuka wanted to come to see me. I don’t know whether applicant invited Kaphuka to the premises – Queries were to be left at the reception – the situation in RP 1 was that prevailing at the time.


I found Hon. Kaphuka’s vehicle parked at the Board at around 4 p.m. I enquired about the presence of the Hon. Kaphuka – it was my responsibility to supervise Directors – I enquired next morning on the presence of Kaphuka – there are specific NO GO ZONE areas, my office was not a NO GO ZONE area – those areas are manned and Heads of Department are aware of that – it is my responsibility to delegate on the NO GO ZONE areas – security personnel sit at the gate - it is the responsibility of Head of Department to enforce NO GO ZONE area – security officers at the entrance main gate – the applicant had, control of the visitor, coming to her office – I even told her about Kaphuka yet he came back –


Head of Department should’ve informed security on the ban of Kaphuka – the applicant should’ve alerted me of the presence Kaphuka – significant visitors are supposed to alert us in advance on their intended visit –


Inquiry > I don’t know whether the applicant asked for witnesses to the hearing – I am aware of letter written to the Executive Director by the applicant – asking for witnesses – the witness Kaphuka – could not be brought to the hearing because Kaphuka’s case was handled elsewhere-


Re exam: we don’t know whether the applicant was prevented from calling her witnesses – she could’ve called Kaphuka herself.


Question by Court: I did not inform security on the first visit of Kaphuka not to allow him – but the next day I informed security never to allow Hon. Kaphuka again into the premises – but somehow he found his way into premises again. I enquired from the security personnel how Kaphuka had found himself in the NO GO ZONE area again – they expressed fear that they could not stop him being Deputy Minister – I did not inform the applicant about the Hon. Deputy Minister’s visit to my office. On the second visit I saw the Deputy Minister vehicle at the Board. I was told he came to see the applicant. I told the applicant not to entertain Hon. Kaphuka. On the second visit to the applicant’s office I was not alerted of Kaphuka’s presence – I was away to a Press briefing – when I came back the applicant told me that Kaphuka was on his way to my office.


RP 2: Takes oath and states: I am Sr Kambilonje, Private Bag 235, Lilongwe. I sat on MANEB Board in 2002 – I was a member of disciplinary committee involving applicant’s hearing – we were in Task Force – we agreed to invite staff in the applicant’s department for a hearing – there were eight including the applicant – the applicant appeared before the committee – she was the last to appear.


The applicant was told that we were carrying out an individual enquiry – we told her that we did not want the other staff to be intimidated. At the end of her case – we asked whether she had anything else to add – she never did – she never asked for any witnesses to come in. Hon. Kaphuka was a Minister – we were told to carry out mandate. The mandate did not include an interview of Hon. Kaphuka. Recommendation – the matter was serious – breach of regulations – therefore dismissal - however on humanitarian grounds we felt that we could be lenient with the applicant – I have minutes – page 8.


Court: ‘RP 3’ Minutes of the inquiry

NOTE: The Executive Director was part of the inquiry team. He introduced the subject to the other members of the inquiry. This contradicts his assertion that he was in the inquiry to give his part of the story as a mere interviewee- see pages 6 & 7 of the record. Minutes of the inquiry confirm his presence.


XXN: It was not our duty to interview the Deputy Minister we did not discipline the Deputy Minister. The applicant did not ask for the presence of the Deputy Minister as a witness.


Looks at AP 2 – I am aware of AP2 – I signed it . Looks at first page – we did not call for the presence of Kaphuka – I received ‘AP2’ after the hearing – during inquiries applicant did not ask for presence of Kaphuka – I saw ‘AP2’ before the termination.


Re exam: The committee did not prevent the applicant from calling any witnesses she wanted.


Question by Court: When the Task Force was put in place – it decided to interview the applicant and staff – it felt Hon. Kaphuka would be spoken to by Ministry of Education headed by senior Minister – because Minister’s conduct could only be inquired into by Cabinet or Senior Minister - Minister of Education himself. There was a Policy in place – e.g. the NO GO ZONE Policy. Applicant refused to go to the press conference –She let Kaphuka in after being told not to allow him. As head of Department she was supposed to uphold the policy – NO GO ZONE.


Head of securities – we did not have any security personnel at the inquiry. The Task Force decided not to include security personnel because it was the duty of management to alert the security people about the NO GO ZONE. The security people knew about the NO GO ZONE Area in black and white – management was just supposed to remind them of this function. Management included the Executive Director.


CT: Mussa – nothing else – Kaphale – nothing to add – written submission 7 days – judgment – 21 days time.




R. Zibelu Banda (Ms)

CHAIRPERSON

20/03/06



CERTIFIED A TRUE COPY OF THE ORIGINAL RECORD




R. Zibelu Banda (Ms)

CHAIRPERSON