Khoza v Attorney General (Ministry of Education) (IRC 56 of 2002 ) ( of ) [2006] MWIRC 97 (31 July 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 56 OF 2002


BETWEEN:


KHOZA….……………...……………..……...…………………………... APPLICANT


-and-


ATTORNEY GENERAL (MINISTRY OF EDUCATION) ….......................................……...………………………...…….............RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Hara; of Counsel for the Applicant.

For the Respondent none (no excuse given)

Gowa; Official Interpreter



JUDGMENT

Dismissal-Summary dismissal-Reason for dismissal- Misconduct- Willful disobedience of regulations and procedures- flout of rules and procedures-Absenteeism-Disgraceful and improper conduct-Procedure- Opportunity to be heard- and defend oneself-Previous warnings-Interference with employer’s decision.


Facts

The applicant was employed in 1991 as a Primary School teacher. His services were terminated on 3 August 2002 for absenteeism and for behaving in a disgraceful and improper manner. The applicant challenged the termination on grounds that the reasons were not valid and that the procedure leading to the termination was not fair. The respondent was not available to defend the case. The court therefore heard only the applicant.


The Law

Reason

In the matter of 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.

In the instant case the court heard that the applicant desired to work in Blantyre therefore he requested for a transfer from Mulanje where he was based to Blantyre. He took all necessary steps to move from Mulanje to Blantyre but according to him the transfer was not granted. This forms one reason for the dismissal. Somehow, the applicant found a way to move to Blantyre and was assigned a school to teach in the Blantyre urban. While at this school the applicant was alleged to have ordered a pupil to remove fresh human excreta with bare hands. This is the second reason for the termination.

Absenteeism

The court’s assessment of the facts is that the applicant knew the procedures for transferring from one place to another. He took all the requisite steps to go on transfer but he did not get a clear authority to go on transfer. He was asked to wait and to take further steps but he run out of patience and found a means of going on transfer without any authority. This formed willful disobedience of rules and regulations regarding transfer of school teachers. Willful disobedience of authority is serious misconduct warranting summary dismissal; see Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


The court also finds that by moving from Mulanje to Blantyre without proper authority was a deliberate flout of rules and procedures prevailing in the teaching service. This conduct 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 had no authority to leave his duty station in Mulanje and report to Blantyre. Although there was a vacancy in Blantyre the applicant required authority to take up that post in Blantyre. Since the applicant had no authority to leave his duty station, the respondent was justified to regard this absence as unauthorized absenteeism. Therefore the respondent had valid reason for dismissal because absenteeism is valid reason for summary dismissal; see section 59 of the Employment act.


Improper and Disgraceful behaviour

Section 59 of the Employment Act provides that an employer is entitled to dismiss summarily an employee where that employee is ‘guilty of serious misconduct inconsistent with the fulfillment of the express or implied conditions of his contract of employment such that it would be unreasonable to require the employer to continue the employment relationship’.


In the instant case the applicant as a school teacher was accused of ordering a pupil to remove human excreta with bare hands. This would be termed as serious misconduct envisioned in the provision above. A school teacher who conducted himself in such manner would not be fit to continue in his teaching profession or indeed any employment that required care of young children. It is dismissible conduct.

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 his side and defend himself; see section 57(2) of the Employment Act, also 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 him. He was asked to answer to the charges. The applicant made his explanations. The explanation was apparently not plausible as such the respondent decided to terminate the applicant’s services through summary dismissal.


Previous Warnings

The applicant stated that he was never warned during his term of employment. However there is no legal requirement that an employee must be warned before termination, especially so in cases of misconduct. Therefore it is not a defence to dismissal that a person accused of misconduct was never warned before. A warning becomes a matter of law in cases of incapacity, but even then there are exceptions where a warning can be dispensed with, see Alidair Ltd V Tylor [1976]1IRLR 420EAT.


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 him and he was asked to answer to them. 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 as doing so would turn the court into a disciplinary hearing on matters of fact rather than a court of law.


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 31st day of July 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON.