Ungapembe v Malawi Revenue Authority (IRC 311 of 2004 ) (311 of 2004) [2006] MWIRC 52 (04 May 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. 311 OF 2004


BETWEEN


UNGAPEMBE …………………………………………………………… APPLICANT

-and-


MALAWI REVENUE AUTHORITY ……………………….. ………RESPONDENT


CORAM: R.ZIBELU BANDA, CHAIRPERSON

Mzunga; of Counsel for the applicants
Respondent; Absence no excuse
Gowa; Official Interpreter


J U D G M E N T

Dismissal- Justification-Reason-Misconduct- Dishonesty- Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself-Right to be heard to be fair and not predetermined-Right to call witness.

Facts

The applicant was employed on 11 February 2002 as Revenue Assistant. He was dismissed on 1 March 2004 on ground of facilitating evasion of duty. He challenged that the hearing was unfair. He stated that at the hearing he asked for his witnesses to confirm that he did not participate in the alleged offence. He was assured that another date would be set for hearing where he could bring his witnesses and also confront the respondent’s witnesses. In essence the applicant was denying being at the particular station where the offence allegedly took place. His testimony in defence of the charge was to the effect that he could not have participated in the offence because at the time of the alleged offence he was stationed elsewhere.


The respondents did not attend court. They did not send any apology to court as to why they failed to appear on the appointed day. There was evidence on record to show that the respondents were served with a notice of hearing for the 14th March 2006. In the absence of any excuse from the respondent on their non attendance the matter proceeded in accordance with section 74 of the Labour Relations Act.


The Issue

The issue in this matter is on the procedure that was followed before termination, whether the hearing was fair?

The Law

Procedural Justice

Section 57(2) of the Employment Act states 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.’


Where a reason is given for taking disciplinary action, the employer is obliged to allow the employee to explain his side and defend himself. In the case of Fairmount Investments Limited vs. Secretary of State (1976) 2All ER 865, it was stated that if a party is adversely affected by any evidence and is given the right to comment on that evidence, the principle of right to be heard is complied with.


In the case of Khoswe V National Bank of Malawi [Civil Cause Number 718/2002 (unreported)] it was stated that where facts of a case are in dispute, it is necessary to give an oral hearing to satisfy the rules of natural justice or the duty to act fairly. A fair hearing becomes the employer’s justification for termination of employment where there is a disagreement of facts. The duty to apply principles of natural justice does arise beyond the broader principle that where one is to affect another’s rights adversely for a reason, the other reasonably expects to be satisfied of the reason. The hearing must be fair and not predetermined. In the hearing the allegations must be outlined to the applicant and he must be asked to answer to the allegations separately.


In Polkey v A E Dayton Services Ltd [1987] 3 All ER 974,at 983, the House of Lords quoted with approval the following observations of Neill LJ sitting in the court of appeal in the same case [1987] 1 All ER 984 at 989:


“Where an employee is dismissed for alleged misconduct and he then complains that he was unfairly dismissed, it is to be anticipated that the industrial tribunal will usually need to consider (a) the nature and gravity of the alleged misconduct, (b) the information on which the employer based his decision,(c) whether there was any other information, which that employer could or should have obtained or any other step which he should have taken before he dismissed the employee.”


In the instant case the applicant was not given a fair hearing to defend himself through calling of witnesses to buttress his defence. He asked for witnesses to his hearing, he was promised that the hearing would be reconstituted to hear the applicant’s witnesses but this was never done. Instead the applicant was dismissed. This was an irregularity which rendered the proceedings unfair and affected the outcome of the hearing, see, Kamlongera V Malawi National Examination Board [Matter Number IRC 318/ 2002 (unreported)].

Finding

It is therefore held that the applicant’s termination was unfair on technicality. There was violation of section 57 (2) of the Employment Act because the applicant was not given a fair hearing.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment in accordance with section 65 (2) of the Labour Relations Act.



PRONOUNCED in Open Court this 4th day of May 2006 at Blantyre.




Rachel Zibelu Banda

CHAIRPERSON