IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 235 OF 2004
CHIMULU.. . ................................................APPLICANT
MALAWI TELECOMMUNICATIONS LIMITED RESPONDENT
CORAM: R. Zibelu Banda (Ms); Chairperson
Mulele; of Counsel for Respondent
Ngalauka; Official Interpreter
Dismissal- Justification-Reason-Misconduct-Insubordination-Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself.
Upon hearing the applicant and the respondent the court finds that the applicant was alleged to have acted with insubordination towards his supervisor. The supervisor was not happy with the applicants attitude. The supervisor hence indicated to management that he was not prepared to work the applicant. Management asked the applicant to write a report on the events leading to the misunderstanding. The applicant was dismissed basing on this report. The applicant alleged that he was not heard. He denied the allegations.
The issue is whether the applicant was given a right to be heard and defend himself against the allegation of insubordination.
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.
Where a reason is given a reason 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 employers 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 anothers 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  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  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 allegation involved insubordination. The applicant denied the allegation. The issue was therefore disputed in which case, Khoswe supra, demands that there must be an oral hearing. During the oral hearing the applicant was to answer in the presence of the complainant who should also have been available for confrontation.
The right to be heard entails a meeting of people including the complainant, accused and some referee or third party, where the complainant sets out his complaint in detail and the accused responds in explanation or self defence. It must be seen to be a fair hearing. Written reports must be reserved for undisputed facts where it would be wasteful to conduct an oral hearing.
The court finds that the respondent might have had valid reason for dismissal but they failed to comply with the law by failing to afford the applicant the opportunity to be heard and defend himself. The dismissal was therefore unfair on technicality.
Where a party succeeds in a case of unfair dismissal, the court is empowered to award that person a remedy. These remedies are provided in section 63 of the Employment Act. However before awarding any remedy the court must assess the case from the facts to determine the appropriate remedy. As such remedy is not automatic and is not uniform, as the remedy will always depend on the circumstances of the case.
Assessment of remedy: In this case the complainant was able to show that the applicant was not following proper procedures of log book. This aspect did not please the complainant and led to the misunderstanding. The applicant admitted that he failed to follow proper procedures. No plausible reason was given for the flouting of log book procedures. It was deliberate on the part of the applicant.
If the applicant had been given a hearing it was likely that he would have been dismissed anyway either for insubordination or for deliberate failure to follow laid down procedures on recording and completing log book details that assist in running of institutional fleet of cars.
The applicant therefore lost nothing by virtue of his dismissal. He is awarded nil award, see for example, Kamasa V Bata Shoe Company Ltd [Matter Number IRC 235/2003 (unreported)] where such finding has been made on basis of no loss due to a fact that the termination though unfair on technicality the likelihood of dismissal was 100%.
Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: See section 65 (2) of the Labour Relations Act 1996.
Pronounced this 30th day of May 2006 at BLANTYRE.
Rachel Zibelu Banda