Gwelema v Leasing and Finance Company of Malawi (IRC 01 OF 2005) ( of ) [2006] MWIRC 74 (16 June 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 01 OF 2005


BETWEEN



GWELEMA ……………………………………………………………… APPLICANT


-and-


LEASING AND FINANCE COMPANY OF MW ………………….. RESPONDENT



CORAM: R. ZIBELU BANDA (MS) – CHAIRPERSON
Chipembere of Counsel for the Applicant
Kapesi 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 1 January 1991 as Data Entry Clerk. His services were terminated on 3 December 2004. Reason for termination was insubordination. The applicant challenged the termination arguing that the reason for termination was not valid. The respondent on the other hand averred that the termination was fair.


The Law

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 court heard that the applicant was twice invited to see one of the respondent’s Directors, in his office. The applicant refused to see the Director because he could not see him without the authority of his boss. Later the applicant was informed at a disciplinary meeting that in fact the gentleman who wanted to see him was Executive Director of the respondent’s holding company. The applicant was advised by his boss, Mr Lungu, to apologise for refusing to see the Executive Director. The applicant refused to apologise. This refusal was according to the respondent an act of insubordination because it was the applicant’s boss who had requested for an apology in order to resolve the issue amicably. The applicant’s refusal was an act of insubordination because even after he was told the position that the Executive Director held in the respondent’s organization, he still felt that it was not necessary to meet him even to apologise for his earlier actions.


Willful disobedience to lawful orders 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)].


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 he was advised on the position of the gentleman who had earlier invited him. The applicant was offered a chance to apologise. The applicant defied his boss’s advice and instruction and instead opted to create tension between the holding company and the respondent through his adamancy. The applicant’s action was unreasonable under the circumstances. He was uncooperative and clearly insubordinate as he did not heed clear and lawful instruction from his boss, Mr Lungu.


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 a hearing to discuss the issue. The applicant was offered an opportunity to apologise in order to resolve the matter. The applicant unreasonably refused to take this instruction. 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 16th day of June 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON