IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 111 OF 2001
UNIVERSITY OF MALAWI (THE POLYTECHNIC) ..RESPONDENT
- CORAM: R. Zibelu Banda (Ms.), Chairperson
- Dr Mtambo; of Counsel for the Respondent
- Ziyendammanja; of Counsel for the Applicant
- Gowa; Official Interpreter
Dismissal- Reason-Misconduct-Theft-Procedure- Disciplinary hearing-Frivolous and vexatious action-Dismissed.
Dismissal-Reason-Misconduct- Fighting-Procedure-Hearing-Right to be heard-Evidence of hearing-Employer to prove on a balance of probabilities
Compensation-Factors-Just and equitable-Contributory fault-100% contribution disentitle employee to compensation
Severance allowance-Payable to unfairly dismissed employees-Calculation-Leyland Daf V Ndema (MSCA)
Fourteen individuals working in the Polytechnic catering services brought an action of unfair dismissal claiming that they were dismissed without a valid reason and without a hearing. The brief facts are that the respondent engaged private security services. As a security measure the security company carried out an operation that involved taking the catering staff unawares to search them for any stolen catering property, from the respondent kitchen. The security officers were in civilian clothes. They stopped the first applicant Mr Mwadala who had a parcel with him. They took hold of the parcel which upon inspection was found with chicken purportedly from the Polytechnic kitchen. The first applicant thought he was being ambushed by thugs and so he called for assistance. The rest of the staff who had just knocked off at the time came to his rescue. In the process a fight ensued between staff and the guards. Two separate charges were laid out, that of theft of chicken against Mr Mwadala and fighting security officers against the rest.
The issue is that the applicants claim that the reasons for dismissal were not valid and that they were not given a chance to be heard. The respondents on the other hand aver that the reasons were valid and that the applicants were afforded opportunity to be heard.
The Employment Act provides that before termination an employee must be given a valid reason and must be heard on that reason. Section 57. In the instant case the reasons were two namely: theft and fighting. This court has held in a number of cases that theft is a valid reason for dismissal. See, for example Misoya and anor V Mc Connel & Co. [Matter Number IRC 66/67 of 2003 (unreported)].
It has also been held that violence or threats of violence against employers or fellow employees or against any other person for that matter is a valid ground for dismissal. See generally for instance, Ngalande V Blantyre Water Board [Matter Number IRC 150/2000 (unreported)].
The court therefore finds that the two reasons were valid for which the respondent could dismiss the applicants. However before that dismissal the respondent was duty bound to hear the applicants side of the story and their defences. It was heard and proved through the letter of termination that Mr Mwadala was invited to a hearing. He was asked to explain the allegation of theft of chicken. It was only after the respondent heard the applicant that they dismissed him. The court finds in respect of Mr Mwadala that his dismissal was fair. The respondent complied with the requirements under section 57 of the Employment Act. The action in respect of the first applicant was therefore frivolous and vexatious and it is dismissed. As a cook who had worked for more that ten years he ought to have known that theft of any kind from the employer was a dismissible offence. He also ought to have been advised by his lawyers that after a fair hearing he had no claim under the Employment Act.
There was no evidence that the rest of the applicants were heard. Their letters of termination unlike that of Mwadala did not refer to any hearing or some act akin to a hearing. The respondents witness had no recollection of any hearing but only speculations that there might have been a hearing. The dismissals took place around the same time, the respondent could not explain why the letters of dismissal were couched differently, especially because they were also written by the same person and on the same day. The only conclusion is that there was no hearing to the rest of the applicants on the charge of fighting with security officers.
The court finds therefore that although the respondent had a valid reason for dismissal, they failed to comply with due process which entailed hearing the applicants side of story and their defences and mitigation. The court therefore finds that the dismissal of the 13 applicants was unfair on technicality.
Assessment of Compensation
Where a court finds a dismissal was unfair it is mandated to consider rectifying the unfairness through awarding remedies under section 63 of the Employment Act. Before awarding any remedy the court must consider several factors including contributory fault. In this case the court finds that the applicants contributed wholly to their dismissal. Even after the applicants realized that they were ambushed by security people in an operation, they continued to fight and attack them. This was a gross act of misconduct that indeed was aimed at jeorpadising University discipline and preventing security personnel from carrying out their duties but also a criminal offence.
It is the courts finding that the applicants wholly contributed to their dismissal. Even if they had been given a hearing they would still be found guilty of serious misconduct and they would be dismissed. Therefore the court finds that they are not entitled to any compensation because their loss was wholly contributed by their misconduct. See Kamasa V Bata Shoe Company Ltd [Matter Number IRC 235/2003 (unreported)].
Severance allowance is payable to the 13 applicants because their dismissal though for misconduct was not fair. The court therefore orders the respondent to pay severance allowance if it was not paid already to the 13 applicants who had served more than one year at the time of dismissal. Calculation of severance allowance is provided in the Supreme Court decision of Leyland Daf V Ndema [MSCA 3/2006 (unreported)].
Any party aggrieved by this decision is liberty to appeal to the High Court within 30 days of this judgment.
Pronounced this 17th day of January 2007 at BLANTYRE.
Rachel Zibelu Banda