Kosamu v Malawi Telecommunications Ltd (IRC 42 of 204 ) (42 of 204) [2006] MWIRC 32 (04 April 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 42 OF 2004


BETWEEN


KOSAMU...………………….….………………………………………… APPLICANT


AND


MALAWI TELECOMMNUICATIONS LIMITED...………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms) Chairperson

Makhalira of Counsel for the Applicant

Chokotho of Counsel for the Respondent

Chinkudzu; Official Interpreter




JUDGMENT

Dismissal-Justification-Reason-Misconduct-Diverting telephone line illegally-Procedure-Fair-Interference-Court not disciplinary committee.



The applicant who was employed by the respondent whose business is that of a telephone provider was accused of diverting a telephone number without authority. The applicant was invited to a hearing several times according to his evidence, to answer to the allegation of diverting a telephone line without authority. The applicant gave the side of his story to the respondent’s authorities. The respondent was not convinced with the applicant’s explanation and they dismissed him. The applicant challenged the termination on the ground that he did not agree with the reason and that he had worked for the respondent for so many years.


The court summarily dismissed the action because where an employee is accused of misconduct and he is invited to a properly constituted disciplinary hearing to answer to the allegation, he can not come to court to refute the allegation of misconduct when he had the opportunity to refute at a disciplinary hearing.


This court has held in a number of decisions that court process is not a disciplinary hearing and parties should not attempt to turn court into disciplinary committee to hear into allegations of misconduct, see – Kachingwe and others v Southern Bottlers Limited [Matter Number IRC 162/2003 (unreported)].

It is only where a party alleges that disciplinary hearing was unfair that a court can interfere because then the termination becomes unfair on the ground of due process.


The reason given by the respondent for the termination was valid because it affects the core business of the respondent. The court can not interfere with the decision of the respondent which was arrived at after a fair hearing as there were no allegation of unfair disciplinary hearing, see County Fair Foods (Pty) Ltd V CCMA and others [1999]11 BLLR 117 (LAC) cited in Kachingwe above.


This action is dismissed in its entirety. Any party aggrieved by this decision is at liberty to appeal to the High Court in accordance with section 65 (2) of the Labour Relations Act as read with Rule 27 of the Industrial Relations Court (Procedure) Rules 1999.


Pronounced in open court this 4th day April 2006 at BLANTYRE.





Rachel Zibelu Banda

CHAIRPERSON