Kumitengo v Mount Soche Hotel Ltd (IR 193 of 20055) (193 of 20055) [2006] MWIRC 53 (05 May 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. 193 OF 2005


BETWEEN


KUMITENGO ……………………………………………………. ……. APPLICANT

-and-


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

CORAM: R ZIBELU BANDA, CHAIRPERSON
Chalamanda; of Counsel for the respondent
Kapanda; Legal Assistant assisting Chalamanda
Applicant; present
Chinkudzu; Official Interpreter


J U D G M E N T

  1. Summary dismissal-Justification-Reason-Gross negligence-Circumstances to be considered-Procedure- Opportunity to be heard- and defend oneself-Employer to consider defence-act in good faith

  2. Sanction-To fit the offence-Circumstances of case-To be taken into account.


Facts

The applicant was employed on 22 December 1997. His services were terminated on 3 May 2005 on grounds of gross negligence - failure to enforce company procedures. The court heard the applicant and the respondent’s witnesses.

The applicant challenged the termination on the ground that he did not receive training and he also challenged the reason for the termination – he stated that the system had been corrupted for sometime, even before he was assigned the position he held at the time of termination. He stated that the anomalies leading to his termination were perpetrated by the General Manager and other members of staff, but that the applicant was not allowed to question him or to mention his involvement in the malpractice. Further the applicant argued that the punishment that was meted out to him; summary dismissal, did not fit the offence considering that he was previously a man of good conduct and that it was difficult for him to enforce the company procedures in issue when it was the top management who was involved in the malpractice.


In short, the malpractice complained about by the applicant was that members of staff including the then General Manager whether in person or through his acquaintances or businesses would collect cash received at the reception for services by clients and in exchange for the cash present post-dated personal or company cheques in the amount collected. In most cases these cheques would be referred to drawer.


The respondent’s witness informed court that the issue against the applicant had no relation to the malpractice stated by the applicant. The issue against the applicant related to a specific period. The nature of the negligence was that debtors’ cheques would be exchanged for cash by members of staff at the reception during night shift. The applicant was responsible for reconciling debtors and ensuring that bankings were properly done. In essence, if the applicant had performed his duties well, this malpractice of exchanging debtors’ cheques with cash would not have taken place or that it would have been discovered by the applicant and put to a stop. But because the applicant did not enforce the company’s procedures this malpractice was allowed to take place leading to loss of huge sums of money for the company.


Discrimination

The applicant alleged that the respondent discriminated against him by punishing him much more that the others who were involved in one or another in the malpractice. It came out in evidence that a number of employees were involved in the malpractice and disciplinary proceedings were instituted in respect of each and every concerned employee and sanctions were meted out according to circumstances of each case. The court found that there in respect of the period in question there discrimination in the treatment of the applicant’s case where the Genaral Manager was concerned. This General Manager we were told was involved in the malpractice and yet the company expected the applicant a junior staff to discipline or to question him. The court heard that this particular Manager was instead of getting disciplined, he was transferred away. The respondent concentrated on a particular period while the malpractice had been going on for longer period. This in essence meant that some members of staff were spared because the period under consideration was reduced to catch the applicant and not others.


Discrimination is an act that is meant to disadvantage one person as opposed to another under similar circumstances. Discrimination can be based on a number of factors. In this case, the applicant was discriminated against in his treatment by the respondent by not considering the role that senior management played which adversely affected the applicant’s proper performance of his duties. There was however no evidence of discrimination in relation to the other members of staff who were caught by the period under enquiry and their cases assessed accordingly.


The Law

Reason

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.


In the instant case, the applicant was given a reason for his termination. He was charged with gross negligence and was asked to appear for a hearing. Therefore the duty to charge an employee with a reason before termination was complied with.


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 the applicant appeared before a hearing where he explained his case and defended himself. A number of issues came out in how the hearing was carried out. The court found no fault in the hearing itself. The applicant was allowed to explain his side of the story and to defend himself.


Training

The allegation that the applicant was not trained or inducted in his new position was unfounded, as the respondent was able to show that the applicant was conversant with the system having performed similar functions before, while working in different capacity.


Sanction

In any case where a person is charged with an offence and is found blameworthy, the next question that the complainant must consider is the sanction. Fairness demands that a sanction must fit the offence. It is unfair to impose a sanction that is disproportionate to the weight of the circumstances of the case; it is trite law that punishment must fit the offence, see, Chigwenembe V Tafika Civil Engineering & Building Contractors [Matter Number IRC 124/ 2003 (unreported)].


In assessing the circumstances of the instant case, the nature of the negligence and the conditions in which the applicant failed to enforce his functions, applicant’s service of eight years without any previous misconduct and the conduct of the respondent in sparing some employees at the expense of the applicant in a manner best described as discriminatory; the court finds that summary dismissal was too severe a punishment. The court therefore orders the respondent to reduce the sanction from summary dismissal to termination with notice and full benefits including severance allowance and the employer’s pension contributions among others.


ORDER

The respondent must pay the applicant full terminal benefits within seven days of this judgment. The termination shall for purposes of this case be considered as if it is with effect from the date of this judgment. In which case the applicant must be paid salary arrears from May 2005 to May 2006.


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.



PRONOUNCED in Open court at this 5th day of May 2006 at Blantyre.




Rachel Zibelu Banda

CHAIRPERSON