Mvula v First Merchant Bank (IRC 32 of 2005 ) (32 of 2005) [2007] MWIRC 12 (30 January 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 32 OF 2005


BETWEEN


MVULA…………………………………… ………………………………APPLICANT


-and-


FIRST MERCHANT BANK LTD……………………………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson
Kumwenda (Ms); Senior Human Resources Officer
Applicant; Present
Namponya (Ms); Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Loss of trust and confidence

  2. Employment contract-Implied term-Mutual trust and confidence

  3. Procedure- Right to be heard-Hearing

  4. Court must guard against rigid imposition of judicial style proceedings in inappropriate situations


Upon hearing the applicant and the respondent the court finds that the applicant was employed as Bank Clerk. At time of employment he was required to declare his assets because of the nature of the job he was engaged to perform. In less than four years he had accumulated real properties, a motor vehicle, cellphones and was traveling on private trips by Air. This aroused some suspicions in the respondent. The applicant was earning K12 133-00 at the time of termination with no other known or verifiable means of extra income. The court finds that the suspicion was founded and it formed ground for enquiry leading to disciplinary action.

The applicant was invited to a meeting where he was asked to explain his new found wealth. He explained by giving names of people who supported him financially. The respondent contacted one such person, who contradicted the applicant’s assertions on sources of his extra income. The respondent basing on this and the applicant’s responses were satisfied that the applicant was dishonest. The applicant was not caught red-handed stealing but the respondent had lost trust and confidence in him due to his unexplained amassing of wealth.


This court has held that mutual trust and confidence is an implied term of any employment contract. Without it, one cannot be expected to continue with an employment relationship. See: Manda V Malawi Entrepreneurs Development Institute (MEDI) [Matter Number IRC 109/2004 (unreported)].


The court finds that this was a valid reason for taking disciplinary action. Before the termination the applicant was put on notice. He explained his side of the story. The applicant alleged that hearing was flawed. The court finds that the respondent satisfied the requirements under the circumstances of this case. The applicant failed to show his source of extra income when asked to.


In Banda V Unitrans (Mw) Ltd [Matter Number IRC 27/2001 (unreported)] this court held that; a court must guard against the rigid imposition of judicial style proceedings in inappropriate situations. The court therefore finds that the procedure adopted under the circumstances of this case was fair.


Finding

The respondent complied with the requirements for fair dismissal: Section 57 (1) and (2) of the Employment Act. This action is therefore dismissed.


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 30th day of January 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.