Chiomba v Action Against Hunger (IRC 218 of 2003 ) (218 of 2003) [2006] MWIRC 68 (13 June 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 218 OF 2004


BETWEEN:


CHIOMBA……………...……………..……...…………………………... APPLICANT


-and-


ACTION AGAINST HUNGER………………………...……………...RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Ngwira; of Counsel for the Applicant.

Mussa; of Counsel for the Respondent

Ngalauka; Official Interpreter



JUDGMENT

Dismissal-Summary dismissal-Reason for dismissal- Misconduct- Willful disobedience of company regulations and procedures-Flouting company procedures-Procedure- Opportunity to be heard- and defend oneself-Interference with employer’s decision.

Facts

The applicant was employed on 20 October 2002. She was summarily dismissed by letter of 18 December 2003 for alleged willful disobedience of the respondent’s rules and regulations and instructions regarding use of hired motor vehicles. The applicant was prior to this dismissal warned in a letter received by the applicant on 22 October 2003. The warning was based on the applicant’s failure to comply with internal rules and regulations and in respect of mismanagement of vehicles, misuse of fuel and unprocedural hiring of motor vehicles. The applicant challenged the dismissal alleging that the reasons were not valid.


The Law

Reason

In the matter Nazombe V Malawi Electoral Commission [Matter Number IRC 320 of 2002(unreported)] it was found that the Employment Act 2000 requires substantive justice (reasons) and procedural justice (right to be heard) to be complied with in order for a dismissal to be fair. Where the employer does not comply with one of them or both, the dismissal is deemed unfair.


The burden of proving reason for dismissal is on the employer, see section 61(1) of the Employment Act and also see, Earl V Slater & Wheeler [1973]1WLR 51.

The Reason

The applicant was accused of instructing a driver not being a driver for the hire company to drive a hired motor vehicle. According to rules and regulations and instructions this was irregular and unprocedural. All hired vehicles were by order to be driven by drivers for the hire companies. This was a clear breach of the rules and instructions prevailing at the respondent’s organization. The applicant deliberately flouted organisation’s procedures and instructions.


Willful disobedience of company rules and regulations is serious misconduct warranting summary dismissal; see Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)] and Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


Flouting company procedures has been held in this court to constitute valid ground for dismissal, see Nzangaya V Unitrans Malawi Ltd [Matter Number IRC 32 of 2003 (unreported).


The Court finds that the respondent had valid reason for which they could institute disciplinary proceedings against the applicant. However before any adverse action against an employee is taken, that employee must first be afforded an opportunity to explain her side and defend herself; see Chawani V Attorney General [MSCA Civil Appeal No.18 of 2000(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. 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 this matter, the applicant was invited to a hearing where the allegations were outlined to her. She was asked to answer to the charges. The applicant made her explanations. The explanation was apparently not plausible as such considering that the applicant had previous warning on similar allegations, the respondent decided to terminate the applicant’s services through summary dismissal.


Previous Warnings

The applicant was issued with a written warning on 22 October 2003. It has been held that: An employer is allowed to consider previous written or verbal warnings when deciding whether to dismiss an employee. See the case of Prindella V Limbe Leaf Tobaco Company Ltd [Matter No. IRC 49 of 2002(unreported)], see also Kamanga V Machinery Spares & Trading (MST) Ltd [Matter Number IRC 51/2003 (unreported)]


Interference with Employer’s Decision

It has been held in this Court that decisions of employers should not be tampered with if there is no allegation that the process to arrive at the decision was not fair. See the case of Kachingwe &others V Southern Bottlers Mw Ltd [Matter No.162 of 2003(unreported)]. In that case the Court quoted with approval a holding of the Labour Appeal Court of South Africa in the case of County Fair Foods (Pty) Ltd V CCMA & others [1999]11BLLR 1117 (LAC), per Kroon JA:


“[interference] with the employer’s sanction “ is only justified in the case of ……..unfairness.” However, the decision of the arbitrator as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all evidential material before the arbitrator.”


It was heard in the instant case that the applicant was invited to appear before an inquiry where the allegations were put to her and she was asked to answer to them. The hearing was fair although the applicant alleged that termination letter had been written before hand. What was important was that at the time of the hearing the applicant was free to state her case and put in her defence. The decision to dismiss and the dismissal itself came after the hearing. The Court has no reason to interfere with the sanction imposed by the respondent.


Finding

The Court finds that the respondent complied with the law. The dismissal was fair according to section 57 of the Employment Act. Action is dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 13th day of June 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON