Chima v Dimon (MW) Ltd (IRC 290 of 2004 ) (290 of 2004) [2006] MWIRC 76 (26 June 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 290 OF 2004


BETWEEN


CHIMA…………………………………… ……………...APPLICANT


-and-

DIMON (Malawi) LIMITED……………..……………..RESPONDENT



CORAM: R. Zibelu Banda, Chairperson
Mwale; of Counsel for the Respondent
Applicant; present
Chinkudzu; Official Interpreter

JUDGMENT

Dismissal- Justification-Reason-Misconduct-Flouting company procedure-Failure to report staff termination-Leading to loss of funds due to payment of wages-Procedure-Right to be heard-Written report-Why written report is necessary-Whether oral hearing mandatory where matters not in dispute.


Upon hearing the applicant and upon hearing the respondent; the court finds that the applicant flouted company procedure by failing to report a termination which led to the respondent paying salaries to a ghost employee. The applicant was asked to write a report on the issue but he refused on ground that he required a formal hearing. 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 applicant was given an opportunity to explain his side and defend himself. He was asked to submit a written report. He opted not to write down his explanation. He cannot allege that he was not given an opportunity to be heard when he himself refused to avail himself to that opportunity.


In Khanum V Mid-Glamorgan Area Health Authority [1978]IRLR 215 EAT; it was held that:


There are only three basic requirements of natural justice which have to be complied with during the proceedings of a domestic disciplinary inquiry; first, that the person should know the nature of the accusation against him; secondly, that he should be given an opportunity to state his case; and thirdly, that the disciplinary committee should act in good faith.


It is not necessary in all cases to give an oral hearing. It is a waste of time and resources, for example to give an oral hearing when matters are not contentious. In Khoswe V National Bank of Malawi, [Civil Cause Number 718 of 2002 (unreported)] the court held that: Where facts of a case are in dispute, it is necessary to conduct an oral hearing to satisfy the rules of natural justice or the duty to act fairly.


An employer is entitled to demand a written explanation as a means of ascertaining the issues and a way to consider whether or not to institute an investigation or a hearing and who should be at the hearing and how long the hearing is likely to take and such other planning matters. It is therefore wholly unreasonable for an employee to refuse to make a written explanation.


The court finds that the respondent had valid reason for dismissing the applicant and they complied with the law by affording the applicant the opportunity to be heard and defend himself before he was dismissed: Section 57 (1) and (2) of the Employment Act. Therefore this action on unfair dismissal is dismissed in its entirety.


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: Section 65 (2) of the Labour Relations Act.


Pronounced this 26th day of June 2006 at BLANTYRE.



Rachel Zibelu Banda (Ms.)

CHAIRPERSON.