Mkandiwira v Portland Cement Company (IRC 158 of 2005 ) (158 of 2005) [2006] MWIRC 56 (12 May 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 158 OF 2005

BETWEEN

MKANDAWIRE……………………………….………………………….APPLICANT

-and-

PORTLAND CEMENT COMPANY (1974) LIMITED…………………………………….………………………….RESPONDENT

CORAM: R. Zibelu Banda (Ms.); Chairperson
Chirwa of Counsel for the Applicant
Chisanga of Counsel the Respondent
Gowa; Official Interpreter


JUDGMENT

Dismissal-Justification-Reason-Dishonesty-Accomplice to fraud attempt-Procedure for dismissal-Opportunity to be heard-Hearing.


Facts

The Applicant was employed on 15 June 1992. She was dismissed on 26 May 2005 on grounds of dishonesty relating to her photocopying a company cheque in order to carry out fraudulent activities against a medical scheme provider and the respondent company; and for being an accomplice to fraud attempt because it was her act of photocopying and surrendering the company cheque to a third party that the fraud could be facilitated. The applicant challenged the termination on ground that she was not given a fair hearing and that the respondent did not adhere to their Disciplinary Code and Grievance Procedure when handling the applicant’s matter. The respondent on the other hand contended that they followed fair procedure and that the termination was fair considering that the act of misconduct was serious.


Issues

The two issues are whether the respondent followed a fair procedure before termination and whether they complied with their Disciplinary Code and Grievance Procedure?

The Law

Section 57 of the Employment Act provides that every employee must be informed the reason for dismissal. It also provides that the employee must be given an opportunity to explain her case and defend himself.


Section 61 of the Employment Act places the burden of showing the reason for dismissal on the respondent. It was thus held in Earl V Slater and Wheeler, [1973] 1 WLR 51:


“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 Nazombe V Malawi Electoral Commission [Matter Number IRC 320 of 2002(unreported)] it was held that for a dismissal to be fair it must comply with both substantive justice (reasons) and procedural justice (right to be heard). Where the employer does not comply with one of them or both, the dismissal is deemed unfair.


The burden is on the respondent to show that the reason for dismissal was valid. In this case the respondent was able to show that the applicant conducted herself dishonestly by carrying out an activity aimed at defrauding the company and a third party. The applicant who was in charge of Stores held a position of trust and any act of dishonesty would reflect badly on her relationship with the respondent company. It is the court’s finding that the reason for termination was serious enough to warrant dismissal. See, Ibrahim V Suncrest Creameries Ltd [Matter Number IRC 73/ 2003 (unreported)].


Procedure

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


In the case of Fairmount Investments Limited V 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.


In the instant case the court was informed that the applicant did not have a fair hearing in that the same person who was the complainant in the case also heard the applicant and made the decision to dismiss. It is not in the interests of this court to comment much on the process that was followed in relation to this particular allegation, albeit to state that the facts were not contested. The applicant was confronted about the photocopying and surrendering the photocopied cheque to a third party in order for that third party to make a false claim. The applicant did not dispute her role in the transaction that was in issue. It is therefore rather over stretching the right to be heard, to insist that two officers should have handled the matter when the issue was not contested.


The legal position is that it is where the matters are in dispute that it is imperative for the employer to give an oral hearing so that the employee can correct the position or defend herself. In Kent County Council V Gilham and others [1985] IRLR 18 CA, the court of Appeal held that:


Where the facts are bitterly contested, it is necessary for the court to make specific findings on contested issues to show the basis of its decision. But where the facts are not in dispute, it does not assist the parties to overburden the written decision with a lengthy recital of agreed facts.


It is the court’s finding that no injustice was done to the applicant by the act of management to assign one person to handle and deal with uncontested materials in this case. Even if it was found that the respondent’s action was unfair, the court would have found that the result of that action was not unfair as the matters were not in dispute.


The applicant further complained about the failure of the respondent to follow its disciplinary procedures. Counsel for the applicant referred the court to the Clause 6 of the Staff Conditions of Service. However a reading of the whole document including Clause 7 shows that acts of dishonesty and fraud are punishable with summary dismissal. There is no question on the gravity of the applicant’s misconduct. It is what in the Employment Act, section 59 (1) (a) referred to as ‘serious misconduct inconsistent with the fulfillment of expressed or implied conditions of the contract of employment’. It is clearly established that there is in a contract of employment an implied term of trust and confidence. Any breach of this implied term is fundamental breach amounting to dismissal.


Finding

The court finds that the respondent did comply with section 57(1) by providing a valid reason for dismissal. The respondent furthermore complied with section 57(2) by allowing the applicant to explain her role in the attempted fraud. This action is therefore dismissed in its entirety.


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



Pronounced in Open Court this 12th day of May 2006 at BLANTYRE



Rachel Zibelu Banda

CHAIRPERSON