Kathumba v Trust Auctioneers & Estate Agents Ltd (IRC 306 of 2004 ) (306 of 2004) [2006] MWIRC 72 (15 June 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 306 OF 2004


BETWEEN


KATHUMBA …………………………………………………………….. APPLICANT


-and-


TRUST AUCTIONEERS

& ESTATE AGENTS LTD……... …………………………………… RESPONDENT



CORAM: R. ZIBELUBANDA (MS); CHAIRPERSON
Applicant; Present
Lipenga; Human Resources Officer for Respondent
Gowa; Official Interpreter


JUDGMENT

      1. Dismissal- Justification-Reason-Misconduct-Theft-Loss of trust and confidence-Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself

  1. Compensation-Just and equitable-Factors-Circumstances of the case-Length of service-Reasons for termination


Facts

The applicant was employed on 1 January 2002 as Sales Clerk. His was dismissed on 14 August 2004 for alleged theft. The applicant was not given a hearing to explain his side or defend himself. The respondent lost trust in him and they decided to pay off the applicant. The applicant challenged the termination alleging that the reason was not valid because after he was taken to a criminal court, he was acquitted on theft charge by that court. The respondent admitted that the applicant was not given an opportunity to be heard.


Issue

The issue is whether failure to provide the applicant a right to be heard and defend himself constituted unfair dismissal?


The Law

Procedural Justice

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 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 this case the applicant was not invited for a hearing to explain his case and to defend himself. He was just told that his services had been terminated because the respondent did not trust him anymore. This was a clear violation of the Employment Act in section 57 (2) which demands that a hearing must be afforded to an employee before his services are terminated.


Finding

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.


Remedy

The applicant had sought compensation in the form of salaries from date of dismissal to date of retirement. Compensation is awarded where the employee suffers loss due to the action of unfair dismissal. Section 63 of the Employment Act provides that compensation shall be assessed after taking into account all circumstances of a case. In this case, it would be just and equitable to award the applicant some compensation considering that his dismissal was unfair.


The circumstances of the case were that the respondent had lost trust and confidence in the applicant because of the applicant’s alleged involvement in some theft activities. It would be wholly unjust and inequitable to demand that the respondent maintain the employment relationship when they had no confidence in their Sales Clerk a position requiring total trust.




ORDER

The respondent is ordered to pay the applicant a sum equivalent to four weeks wages as compensation. This amount has been arrived at considering the length of service that the applicant worked for the respondent and the circumstances leading to the termination. This order is effective 14 days of this date.


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 15th day of June 2006 at BLANTYRE.



Rachel Zibelu Banda
CHAIRPERSON.