Kamlongera v Malawi National Examination Board (MANEB) (IRC 318 of 2002 ) (318 of 2002) [2006] MWIRC 45 (21 April 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 EXAMINATIONS BOARD (MANEB)…..RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson
Kaphale; of Counsel for the Respondent
Mussa; of Counsel for the Applicant
Chinkudzu; Official Interpreter


JUDGMENT

  1. Dismissal-Justification-Reason for dismissal- Misconduct-Breach of security-Receiving or inviting unauthorized visitor without consent-Disobedience of management order not to receive or invite unauthorized visitor-Failure to verify accuracy of results for specific school-Compromising position of the respondent-Releasing manipulated results for specific school


  1. Procedure- Opportunity to be heard- and defend oneself-Right to access adverse evidence and to confront witnesses-Right to call witnesses


  1. Interference with employer’s decision-When court should interfere with employer’s decision-Presence of unfairness.

Facts

The applicant was employed in November 1987. At the time of termination on 16 May 2002, she was Director of Examinations, a position she had held for seven years. The applicant was suspended from duty on 6 May 2002 following events centred around Kaphuka Private Secondary School, its proprietor, Honourable S Kaphuka the then Deputy Minister of Education; and its Malawi School Certificate of Education (MSCE) examination results for 2001. The nature of the allegations are outlined below because they are an issue in this case:

  • Breach of security requirements of the Board by allowing access into the NO GO ZONE part of the Board to Hon S Kaphuka- proprietor of Kaphuka Private Secondary School without authority of the Executive Director;

  • Receiving or inviting Hon S Kaphuka to the Examinations Department without informing or receiving the authority or consent of the Executive Director;

  • Receiving or inviting Hon S Kaphuka to the Examinations Department after being instructed not to by the Executive Director on 12 March 2002;

  • Failure to verify accuracy of the results released to Kaphuka Private Secondary School;

  • Compromising the position of the Board and integrity of the examinations process by releasing examinations results before verifying their accuracy; and releasing manipulated results to Kaphuka Private Secondary School without the authority of the Executive Director


In conducting herself in the said manner, the applicant had breached the following conditions of service of the Board: 4.0; 13.2.3; 13.2.4; and 13.2.18. No copy of the conditions of service was supplied to court to enable it appreciate the offences and their gravity in light of the sanction given. Counsel for the Respondent in his written submissions, made an elaborate outline of the applicant’s misconduct but no reference was made to any supporting clauses of particular breaches of conditions of service referred to in the letter of suspension marked as exhibit AP1. The recommendation to terminate the services of the applicant did not cite the said clauses in the conditions of service but instead referred to ‘disruptive’ conduct, negligence and insubordination.


The reasons for termination according to the results of the interviews conducted by a special Subcommittee of the Board mandated to inquire into the conduct of the applicant with specific reference to Kaphuka Private Secondary incident were; disruptive conduct, negligence and insubordination.


The applicant challenged the termination on two main grounds which are the issues for this court to determine. The first issue is that the reasons were not proved and therefore they were not valid. The second issue relates to the hearing. The applicant contends that the hearing was unfair.


The Law

The Employment Act in section 57 (1) provides that the employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on operational requirements of the undertaking.


The burden of showing the reason for termination is on the employer and to that effect section 61(1) of the Act states that in any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair.


In Earl v. Slater and Wheeler, [1973] 1 WLR 51 at 55 the Court of Appeal held that: It is for the employer to show what was the principal or only reason for dismissal and that it was a potentially valid reason. If the employer fails to discharge this burden, the tribunal must find that the dismissal was unfair.


Further where there is more than one reason for termination it was held in Carlin V St Cuthbert’s Co-operative Association Ltd [1974] IRLR 188 NIRC that: If an employer gives two reasons or more for dismissing an employee and one only is established by the evidence led before the Tribunal and there is no evidence as to which reason, if either, was subordinate to the other, the employer’s defence may fail upon the view that what was in fact the principal reason for dismissal has not been proved.

In the instant matter, the court must determine whether, MANEB proved to this court that the applicant had committed acts of misconduct and that they were potentially valid reasons for termination or there was another real reason behind the reason?


The actual phrasing of the recommendation was as follows: The committee recommends the termination of service (of Mrs Kamlongera) because:

  1. The normal running of the institution is being blocked by the way she conducts herself

  2. She is negligent to duty

  3. She displays insubordination by word and conduct as observed by the fact that she agrees that the Executive Director did warn her not to entertain the Deputy Minister again without his knowledge

  4. The committee endorsed the suspension and the fact that she compromised the position of the Board and integrity of the examination process by releasing examinations results before verifying their accuracy.


Blocking Normal Running of MANEB

The respondent was required to prove to court that the normal running of the Board was being blocked by the way the applicant conducted herself. They were also obliged by law to prove that the applicant was negligent and insubordinate. From the evidence, the acts of misconduct complained about are those outlined in AP1. None of the respondent’s two witnesses told court how the operations of MANEB were adversely affected by the events that took place between 11 and 13 March 2001. The applicant by this time had worked for the respondent for 15 years, seven of which were in senior position of Director. This court was not convinced that the events that took place on 11th and 13th March were serious enough to block or disrupt the smooth operations of MANEB, or indeed that they portrayed a negligent or insubordinate member of staff.


Inviting Hon Kaphuka

In brief, in the afternoon of 11 March 2001, the applicant while in a meeting in her office received a visitor namely, Hon S Kaphuka who was both Deputy Minister of Education and proprietor of a private secondary school. He had come to query some anomalies in the results of his school, which had been released earlier on the same day. The applicant was not perturbed by this request because it was normal to receive such complaints soon after examination results were released. She in the company of the Principal of Kaphuka School and the Principal Examinations Officer, went through the results of Kaphuka School and indeed several anomalies were identified. The next day the applicant informed the Executive Director on the visit of the Hon Kaphuka, whereupon the he advised the applicant not to entertain Hon Kaphuka ever again over examination results.


On 13 March 2001, the Hon Kaphuka came back to the applicant’s office. The applicant phoned the Executive Director’s office to check whether he was in and indeed he was in. At that point the applicant ushered the Hon Kaphuka into the Executive Director’s office. According to the evidence the applicant did not entertain the Hon Kaphuka during this second visit. She said she had been advised against entertaining him. The respondent was not able to contradict the applicant’s assertion that she did not entertain Hon Kaphuka on his second visit to her office. The court noted that on the second visit the applicant had members of staff in her office and that none of them was brought to court or to the disciplinary hearing to confirm the respondent’s suspicion that the applicant had entertained Hon Kaphuka on the second visit.


It came out clear in the evidence of both parties that Hon Kaphuka met the applicant in her office which was a NO GO ZONE area to visitors. The respondent did not show the court that the applicant had invited Hon Kaphuka to her office. Hon Kaphuka we heard, being a Deputy Minister went through the security gates without hindrance from security personnel because although the security personnel, were advised not to allow Kaphuka in, were afraid to turn him out. The conclusion is that Hon Kaphuka used his influence as Deputy Minister of Education to access the NO GO ZONE area in MANEB. Despite the fact that the Executive Director had asked Hon Kaphuka not to visit MANEB, he went ahead and violated the NO GO ZONE area by visiting the offices uninvited. The court further noted that in fact Hon Kaphuka had first visited the Executive Director, and the Executive Director did not inform anyone about this visit at least not the applicant.


There is evidence to show that because of this conduct a meeting was called by the Minister of Education to discuss the issue of the Deputy Minister. In the minutes of that meeting exhibited as RP2, there was no finding that the Hon Kaphuka was at MANEB at the invitation of the applicant. Nor were such allegations confirmed in the inquiry report into the applicant’s conduct as exhibited as RP3. It is safe to conclude therefore that none of the allegations against the applicant relating to inviting Hon Kaphuka were substantiated. They were a mere sham.


Receiving Hon Kaphuka and Insubordination

In her defence to the allegation of receiving Hon Kaphuka, the applicant testified that it was within her power as Director of Examinations to entertain complaints relating to examination results brought by concerned parties including Hon Kaphuka as proprietor of a secondary school. The respondent, alluded to a press release exhibited as RP1, as prohibiting or preventing the applicant from entertaining examination inquirers at MANEB office. With due respect, a thorough reading of the said press release shows that it is neither addressed to the applicant nor to any MANEB staff. There is nothing in it to suggest that staff at MANEB was prevented from entertaining queries brought in person. Further, the said press release could not be accepted as addressing the applicant because it was in respect of 2005 results way after the applicant had left and no proof was shown to prove that there was any such press release in 2001. It is therefore found as a fact that the applicant received the Hon Kaphuka on 11 March 2001 in order to carry out her official function as Director of Examinations of trying to address the anomalies brought in respect of Kaphuka Secondary School. There was no rule or regulation that prevented her from addressing examination results’ anomalies brought to her attention by concerned members of the public.


There was no evidence to show that the applicant entertained the Hon Kaphuka during his second visit after the applicant had been informed not to entertain him. What came out was that on this second visit the applicant ushered the Hon Kaphuka into the Executive Director’s office. She averred that she did this in obedience of the Executive Director’s order not to entertain Hon Kaphuka after the first visit.


The above shows that the applicant was obedient. She did what she could reasonably do under the circumstances without embarrassing herself or her institution. This court can not accept the respondent’s contention that the applicant upon seeing Hon Kaphuka at her door, should have chased him away or banged the door on him. Especially after we are told that this was not an ordinary citizen, he was Deputy Minister of Education and MANEB was within his jurisdiction. The allegation of insubordination was without substance.


It is also worthy pointing out that the respondent used the word ‘received’ loosely in order to find a charge. To receive is a word that can mean a number of things including entertain. But because the respondent knew that the applicant did not entertain Hon Kaphuka, they chose a vague word ‘receive’ just so that the applicant can be implicated. Counsel for the respondent urged this court to find that because the applicant did not take the Hon Kaphuka to a neutral place then she must have been up to no good. Well, perhaps, but this is speculation on the part of Counsel, which if entertained in a court of law would create untoward chaos. The conclusion is that the applicant did not entertain Hon Kaphuka on his second visit to her office.


Negligence

In addressing the issue of negligence, the respondent averred that the applicant had released manipulated examination results to Kaphuka Secondary School and that she released results without verifying their accuracy. These allegations were mere suspicion that the applicant might have been responsible for both manipulating and releasing results which were not verified. The respondent could not say how the applicant manipulated the results as we were told that the results were coming out of the computer room, manned by different individuals. Further, there was no evidence to prove that the applicant had released results to Hon Kaphuka on his second visit. In fact reading from the evidence, none of the person’s interviewed was able to point at who had released the results.


The court heard that it was in fact the applicant who noted further anomalies on Kaphuka School’s results and she informed the Executive Director to order Hon Kaphuka not to release the results. It was therefore contradictory on the part of the respondent to allege that the applicant did not verify the accuracy of the results of Kaphuka School. It has already been found that the applicant did not release the results to Hon Kaphuka but that after Hon Kaphuka had the results, the applicant noticed the anomalies and promptly informed the Executive Director.


It is therefore found as a fact that the applicant did not manipulate the results for Kaphuka nor did she release the results to Hon Kaphuka, but that she noticed anomalies on the results after verifying their accuracy. There is also no evidence on the role that the applicant played on the release of the 2001 MSCE Examinations. None of the two respondent’s witnesses told court that the 2001 results were released by the applicant and that they were not accurate. Hence there is no proof that the applicant’s conduct was negligent or that it compromised the position of MANEB. The allegations were unfounded, untrue and not proved.


In Mahowe V Malawi Housing Corporation [Civil Cause Number 3687/2000 (unreported)], the court held that in determining whether the reason for dismissal is justified a court may examine if the plaintiff was the one in charge of the transaction alleged to be the reason for dismissal.


In the instant case, the totality of the evidence does not show that the applicant was in charge of any the allegations leveled against her. She did not man the gates to the NO GO ZONE Area in order for her to prevent people at the entry point from accessing her office. No security officer or anyone confirmed that Hon Kaphuka had come at the invitation of the applicant. There was no proof that the applicant entertained Hon Kaphuka after she had been warned not to; the applicant was not in charge of computer operations where we were told the results were printed out from; the respondent was not able to show that the applicant had either printed or authorized the printing and then released the results to Kaphuka or anyone else. There was no proof that the MSCE results of 2001 were released without verifying their accuracy.


Real Reason for Termination

It came out clear that the Executive Director was concerned about the state in which he found MANEB. He said he was appointed MANEB Executive Director in 2001 in order to sort out problems that had till then besieged MANEB. These problems included excessive examination leakages which in the previous year had led to the withdrawal of entire results. The Executive Director was under pressure to bring order and sanity to MANEB. He had to do some ‘hard work’ and make ‘painful decisions’ including dismissal of anyone at the slightest suspicion of bringing disorder to MANEB. Such was the pressure that the Executive Director in this court’s view was blinded to reason. His conduct reveals actions of a man so keen to make an impression that he was prepared to sacrifice his own in order to earn credit for himself. The sacrificial lamb was the applicant. This is clear from the foregoing and from procedure that was carried out before the termination.


Procedure

Section 57(2) of the Employment Act provides that 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. This section codifies some of the rules of natural justice that a man should not be condemned unheard.


In Bentley Engineering Co Ltd V Mistry [1978]IRLR 436 EAT, the Employment Appeal Tribunal held that: Natural justice requires not merely that an employee shall have a chance to state his own case in detail; he must know sufficiently what is being said against him so that he can properly put forward his own case.


In the instant case that applicant asked for the presence at her trial of certain members of staff and Hon Kaphuka who witnessed the events of 11th and 13th March. The respondent did not bring these witnesses. The applicant felt aggrieved and rightly so because if these people were brought they would have buttressed her case that she did not commit any wrong. The respondent chose to interview these people individually in the absence of the applicant for fear that she would intimidate them. It was not shown that after the individuals gave their statements, the applicant who was the accused had access to these interviews so that she could confirm or contradict the assertions.


In Louies V Coventry Hood & Seating Co Ltd [1990] IRLR 324 EAT, it was held that: Where the essence of the case against an employee is contained in written statements by witnesses, it is contrary to the rules of natural justice and prima facie unfair for an employer to refuse to let the employee see those statements, or at least be told very clearly exactly what is in them.


The respondent was obliged to make available all the facts including the results of their investigations to the applicant so that they could help her prepare her case. In all but one of the interviews including Hon Kaphuka at the ministerial inquiry, the applicant was not mentioned as having acted in any suspicious manner or indeed that she was negligent or disrupted operations of MANEB. Therefore, the cases of Bentley and Louies are distinguished since the evidence did not allege any wrong doing on the part of the applicant.


However, the testimony of the Executive Director was damning and was framed to bring the reaction that is under consideration, the termination. The applicant vehemently denied any wrong doing in her response exhibited as AP2. Because the issues were contentious it was imperative for the respondent to bring the Executive Director to the stand at the disciplinary inquiry so that he could be confronted by the applicant.


In Khoswe V National Bank of Malawi, [Civil Cause Number 718 of 2002 (unreported)] the court held that: Where facts of a case are in dispute, it is necessary to conduct an oral hearing to satisfy the rules of natural justice or the duty to act fairly. A fair hearing basically becomes the employer’s justification for termination of employment. The employee would then be afforded the right to cross examine witnesses as well as defend himself.


Of course this court appreciates that it is not necessary for administrative proceedings to take the form of judicial proceedings where each and every element is put to detailed scrutiny. In Cornelius & others V Howden Africa Ltd t/a M&B Pumps [1998]19 ILJ 921, the labour court held that: It does not matter whether each of the procedural requirements has been meticulously observed. What is required is for all relevant facts to be looked at in the aggregate to determine whether the procedure adopted was fair. One must guard against the rigid imposition of judicial style proceedings in inappropriate situations.


Indeed that is the view that this court takes on administrative proceedings. However, where the procedure has signs of defects relating to fairness, the court must address that issue to assess whether the defect was such that it can be said to have rendered the process unfair? This is what Fuller V Lloyds Bank plc [1991] IRLR 336 EAT, addressed when it said; where there is a procedural defect, a dismissal will be unfair either where the defect was of such seriousness that the procedure itself was unfair or where the results of the defect taken overall were unfair. The procedural defect in the instant case was both serious and led to unfair result.


Having found in this case the defect was serious and also that results of the defect taken overall were unfair, the court must ask itself the question; whether it is proper in this case to interfere with the decision of MANEB to terminate the applicant’s contract? It was held, in County Fair Foods (Pty) Ltd v CCMA & others [1999] 11 BLLR 1117 (LAC), Kroon JA, that interference with the employer’s sanction is only justified in the case of unfairness. In the instant case it has been found that reasons were not valid and the procedure was flawed.


It is worthy pointing out by way of orbiter that the Executive Director who was a complainant and seriously interested in the outcome of the results of the inquiry was part of the members sitting at the inquiry, see, RP3, minutes of the subcommittee inquiry. His role was not properly established and none of the parties canvassed the point.


Finding

The court finds that the reasons for terminating the applicant’s contract was not valid. The court further finds that the procedure leading to the termination was flawed. This was a contravention of section 57 of the Employment Act. Therefore this termination was in accordance with section 58 of the Act both substantively and procedurally unfair.


Remedy

Where a party succeeds in unfair dismissal case, the court shall award one of the following remedies, reinstatement, re-engagement and compensation. A date shall be set down to assess the remedy.


Any party aggrieved by this decision is by virtue of section 65 (2) of the Labour Relations Act at liberty to appeal to the High Court within 30 days of this judgment. Appeal lies on matters of law and jurisdiction.


Made this 21st day of April 2006 at BLANTYRE




Rachel Zibelu Banda

CHAIRPERSON