Kumitengo v Mount Soche Hotel Ltd (RC 193 of 20055) (193 of 20055) [2006] MWIRC 33 (04 April 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 193 OF 2005


BETWEEN


KUMITENGO …………………………………………………………… APPLICANT


-and-


MOUNT SOCHE HOTEL ……………………………………………. RESPONDENT



CORAM: R. ZIBELU BANDA (MS), CHAIRPERSON
Chalamanda of Counsel for Respondent
Kapanga Assistant to Chalamanda
Applicant – Present
Chinkudzu – Official Interpreter

Applicant: Takes oath and states: I am Friday Munde Kumitengo, Box 1856, Blantyre. I was employed in 1997 as Waiter – Termination on 3rd May 2005.


Reason – Alleged failure to enforce company operate procedures. I was worming as income control. Responsible for checking revenue from the outlets. I would check reports produced at the reception and summaries from outlets like restaurants and bars.


Court: “AP 1” Letter of termination.


Hearing: I was given a hearing. I was suspended from duties verbal – I was given a notice of disciplinary enquiry.


Court: “AP 2”


I was required to answer the charge of disregard of company procedures per instructions. I received the notice on 12th April 2005 – the hearing was on 15th April 2005. At the hearing I received a charge sheet on which I was answering. It was the same charge but couched differently.


Court: “AP 3” – charge sheet at the hearing.

Present -Chairman ,Personnel Manager, General Manager, Accountant, Internal Auditor, Myself and Union Representative.


I was asked to explain my side. During period of December 2004 to January 2005 I was not responsible for checking revenues. This is because I was working as an Accounts Supervisor and Assistant Accountant. My responsibility were not attached to checking of revenue. It was on February 2005 that I was promoted to Income Controller and responsible for checking revenue.


In the hearing it was agreed that the responsibility only fell on my job description in February and March 2005. It was also established that I had been given this job without proper hand overs and without any training. It also transpired that I was denied training for the job by the two Accountants. I was just given a job description, I was not supervised, nobody came to tell me what I should do or whether I should not do something in a certain way. I also explained that I was on probation during the time – I have the letter


Court: “AP 4” – Probation was for February – April 2005.


It also transpired that I was accused of failing to do something that had been going on for the past two years and nobody was blamed for it. When the Income Controller left for Nkopola, the Accountant handled the section I did not do anything about the irregularities I was accused of. I explained that it was not possible for me to stop the practices in a month, which had been happening for over two years.


Looks at document – Balancing summaries – 22nd September 2004 – Mr Kaduya was checking the bankings at the time. It was signatures of both the Income Controller and the Accountant – but also the Manager and Auditor and Cashier – the document is showing that the cashier replaced cash with a cheque belonging to management or by non management on authority by management.


Court: “AP 5” – 22nd September 2004 – Two cheques were banked instead of one that was issued for services.


Looks at another document – 11th December 2004 – In this statement one cheque was exchanged for cash.


Court: “AP 6”


Looks at document of 8th December 2004 – On this document cashier had posted cheques worth K19795.00 but his banking had cheque amounting K40260.00. It was checked by the Accountant when there was no Income Controller.


Court: “AP 7”


I could not retrieve the documents which I had checked myself but perhaps Mount Soche brought them. I also got slips from the bank which were dishonored. They all belong to the General Manager or his companies. I was not able to produce these documents at hearing because I was not given that opportunity.


Appeal > I asked at the appeal that same treatment which was given to me should also be given to the others who had also checked the incomes but ignored the anomalies. The Appeal Chairperson told me not to refer to the other employees. These employees are still working. After the appeal hearing I was given a summary dismissal.


Terminal benefits – None.


The dismissal letter said I would get wages for up to 8th April and 32 outstanding annual leave days – they made calculations and offset them for my educational loan. Refund of own pension benefits was also held as lien for the loan I had with the company.


Looks at document – internal Auditors produced a report. I was asked to investigate the transactions that were taking place at the company. I even condemned the system. This is my report, which I submitted to the Accountant.


Court: “AP 8”


Looks at another document – Appeal outcome –


Court: “AP 9”


Looks at another document – Notice of termination.


Court: “AP 10”


UNFAIR


Because during the time of the alleged negligence I was on probation – I was not given a chance to improve, I was not assessed. It was unfair because I was not given an opportunity of training I was not inducted in the new job. The anomalies had been taking place for over 2 years, it was not practical for me to stop them within a month. The other staff who were responsible for checking banking came across the anomalies, ignored them but did not receive any punishment. I worked for 8 years and I was throughout a person of good conduct, I had never been warned or been subject to any disciplinary proceedings. The main culprit in this case was the General Manager I was not able to meet him – he was at the first hearing. I was told not to mention the General Manager involvement because the case was for me and not for him.


I was a very productive employee I got an award in 2000 as best employee of the company. I find it unfair that I could after all these years of good work be summary dismissed. The punishment did not fit the offence – I have been ruined – my career has been ruined. I’ve been writing application letters and I have been invited to interviews but once they see the letter of my termination they do not employ me.


XXN: I was employed in December 1997. I rose through the ranks to Accounts Department. I was in the Accounts Department from 2004. There were anomalies going on for over two years even during my time – I could not stop them within a month – the anomalies happened even during my time. Mr Chimbiya – had a case where a payment was made using his credit balance – I was asked to investigate. I was asked to investigate because I was in the Accounts Department. The anomaly was at the reception. I was responsible to control revenue even at the reception. I got notice of hearing on 12th April 2005 the hearing was on 15th April 2005. I knew what I was being accused of.


Appeal – yes, I appealed. Yes – employer has discretion to dismiss. It is wrong to dismiss one employee and not another for committing similar offence. I accepted the promotion. I was promoted before, I would be trained and be given hand overs. Terms and conditions of service – I read them. Hearing, yes I was invited.


Chalamanda: I would like to bring one witness.


Court: A number of issues have been raised including discrimination and malpractices from top management which I need established by the respondent in order for them to show that the dismissal was not unfair through discrtimination.


R. Zibelu Banda (Ms)

CHAIRPERSON



CORAM: R. ZIBELE BANDA (MS), CHAIRPERSON

Mulemba of Counsel for the Respondent

Applicant – Present

Gowa – Official Interpreter


Mulemba: I was supposed to bring one witness. He is ready.


RP 1: Takes oath and states: I am Samson Mwale, I work for Sunbird – I am an Internal Auditor. My role is to ensure that company procedures are complied with, sound risk management processes and sound governance structures. I know the applicant. He was Assistant Accountant – Looks at document – Appointment as Accounts Supervisor 26th February 2004.


Court: “RP 1”


Looks at document – Job description for Accounts Supervisor.


Court: “RP 2”


Looks at document – Promotion letter to Income Controller –


Court: “RP 3”


Looks at document – Job description for Income Controller.Court: “RP 4”


The fraud that led to the termination of the applicant happened between November to March 2005. During this period the applicant was Accounts Supervisor. At the time of discovery he has Income Controller. The nature of the fraud was that debtors cheques were being exchanged for cash at the reception during night time. The nature of the applicants job by November 2004 was to concile debtors and ensuring that bankings were being done properly. If this activity was done properly that fraud would’ve been exposed. In terms of training there was no need for training for the applicant from Accounts Supervisor to Income Controller on this particular aspect of ensuring that banking were being done properly because this was his core duty even when he was an Accounts Supervisor.


During the hearing he conceded that he was capable of detecting a cashed cheque. The applicant had performed these duties before as per the job description which I had tendered – debtor reconciliation – Looks at document – document used to check bankings – on this document he was supposed to pick out a cashed cheque but he did not – yet he signed this document.


Court: “RP 5”


To show that the applicant was Accounts Supervisor was performing the duty for which he claiming not have been trained on the position of Income Controller – Looks at document – special investigation report produced by the applicant as Income Controller – At this time he was an Income Controller. This document shows how competently the applicant handled his responsibilities.


Court: “RP 6”


Disciplinary hearing – I was part of the hearing.


Looks at document – Notice for disciplinary inquiry- disregard of operating procedures – either due to incompetence or negligence or dishonesty.


Court: “RP 7”


An explanation of the charge was made out to the applicant. Looks at document – recording of hearing – 16th April 2005 –


Court: “RP 8”


The applicant did not request for more time for his case.


Looks at document – letter of termination – 3rd May 2005 - main reason > failure in his responsibility to enforce company procedure resulting in loss of huge sums of money – K1.7 million.


Court: “RP 9”


Looks at document – Terms and conditions of service - S 10 Y and 10 Z – misconduct – the applicant was supposed to do debtors reconciliation and ensure that banking was done properly –


Court: “RP 10”


Discrimination –


  1. Blessing Mwanyamba – Duty Manager. He was supposed to take care of all night operation of the hotel. He was also witnessing the cash handover from Front Office staff to them cashier – A hearing was conducted, he was seriously warned – because his involvement was just witnessing cash handovers and not reconciliation – he did not bank 10 Y – he did not bank 10 Z – he competently witnesses cash handovers – there were no * problems. He witnessed the cash and cheque deposited by Front Office – reconciliation. Mr Mwanyamba’s charge was not proved – he did not commit 10 Y and 10 Z >.


Court: I would like you to produce the job description of the Duty Manager, by close of business –


  1. Sam Phiri > Front Office Manager – he was responsible were managing the front office operations – change – failure to enforce company procedures due to either negligence, incompetence or dishonest a hearing was conducted and his services were terminated. His role was that as Front Office Manager he was supposed to check each and every cheque passing from the front office. He failed in that regard – he breached close 10 Y and 10 X.


  1. Elezabeth Bekete, she was Head Cashier – she was charged with the same offence – she was just warned – because her duty was to take what has been dropped in the drop safe and money it with what had been dropped in the drop safe. At this point the fraud would have been perpetuated already.


  1. The applicant was the forth accused.


  1. Eleton Malunga – Debtor Clerk – he was charged with same offence – he was fired – he breached the two clauses – His role was that he was responsible for getting these debtors, cheque – He did not give the debtors cheques to the Head Cashier –instead they were cashed at the reception.


(6) Nangoma – Debtors Controller – charged with same offence – he was fired. His role was that debtors cheques were being cashed instead of being handed over to the Head Cashier – Debtors cheques are supposed to go to Debtors Section, then Head Cashier then to the bank. instead some of the cheques were being cashed at the reception – they would put the cheque at the reception want to settle an outstanding bill and they (hotel personnel) would collect cash from the reception. Frank Kumatia and Davie Mahosa – these were Reception cashier and night Auditor respectively – their uses are in court. There was no discrimination. We treated each case depending on the surety of the case.


Looks at document – Notice of Appeal –


Court: “RP 11”


Looks at document – invitation to the hearing.


Court: “RP 12”


Looks at document – Appeal hearing


Court: “RP 13”


Looks at document – Letter outlining terminal benefit of the applicant


Court: “RP 14”


XXN: The fraud took place between November 2004 – March 2005 – The fraud started in November 2004. In November you were Accounts Supervisor – your duties included reconciling debtors – In your job description as Accounts Supervisor – you were supposed to ensure and safeguard company cheques etc – ensuring efficient running of Accounts office ……… reconciling –


I have evidence of debtors cheque cashed at the reception. I have debtors and several ledger that did not balance during the fraud period. The duty of an Accountant is above those of junior staff.


Looks at RP 5 – As at the time of RP 5 preparation you were Income Controller and not Accounts Supervisor.


Discrimination – Mr Kaduya was Income Controller, he left in November you assumed his responsibilities from November – you took this responsibility in February – the fraud was from 16th November – at the time Kaduya was already out.


Ms Chimtengo was an Accountant, this is high level control. They assume that the juniors do the work –delegation – There was a gap between November – December when Kaduya left. The Accountant cannot do the job of an Income Controller – The Accountant ensures that banking is done.


Looks at document – AP 7 – these cheques are not among the problematic cheques – that led to your dismissal.


Looks at AP 6 – This cheques is not part of the fraud that led to your termination. It was not part of the fraudulent cheque.


Sam Phiri – his services were termination – his role was authorizing cheques passing through reception – the fraud happened at night when he was not around – this mitigated his case.


Belete – was warned because her duty was to collect what had been deposited but she did not take an initiative to cheque computer print outs. RP 5 – it was prepared by Bekete, according to all the transactions that were dropped in the drop safe there were no differences. She recorded what was found in the drop safe.


Nangoma – he had his services terminated because of the same charge – he was overall boss, and did not ensure that all was well - there was a gap – the actual responsibility of taking the cheque to the Head Cashier was not his – it was his junior responsibility. This was a mitigating factor.


Re examination –


Looks at RP 1 – Job description. When Kaduya left some of his responsibilities were done by the applicant – e.g. checking of bankings – Assistant Accountant – most of duties done by Accounts Supervisor are also done by Assistant Accountant. Assistant Accountant is a bit higher in the hierarchy.


Looks at document – Report and cheques involved in the fraud.


Court: “RP 15”


APP: Nothing to add.


Mulemba - I am fine but to add that:-


  1. Training – evidence has been adduced that the applicant was competent to handle duties assigned to him at the time. In any event where there is a fraud which seems to implicate the applicant he cannot plead incompetence.


  1. Discrimination – the various persons involved in one way or another in the fraud were subjected to disciplinary measures, the differences in the penalty imposed a rose because of the nature of the case – level of involvement. It has been held that discrimination in employment is complex, it cannot just be alleged just because different penalties were meted out– the fact that disciplinary action was taken eliminates the idea of discrimination.


  1. It has been proved that the applicant was properly heard - no issue has been raised as to allege an improper hearing. There was both substantive and procedural justice in the dismissal – the respondent did his best to comply with the law. I pray therefore that the case be dismissed.


Court: Judgment in 21 days time from today.



R. Zibelu Banda (Ms)

CHAIRPERSON

04/04/06



CERTIFIED A TRUE COPY OF ORIGINAL RECORD



R. Zibelu Banda (Ms)

CHAIRPERSON