INDUSTRIAL RELATIONS COURT OF MALAWI
NO. IRC 21 OF 2005
COUNCIL FOR THE UNIVERSITY OF
Zibelu Banda (Ms); Chairperson
Assistant Registrar (Human Resource) for the Respondent
for dismissal-Failure to improve-After warning
Willful disobedience of University regulations and procedures
Opportunity to be heard- and defend oneself-Employer to provide
warning-To put employee on guard on acts of misconduct or
incapacity-Employee to improve
with employers decision-Where there is evidence of unfairness
Urban Mkandawire was employed on 1 December 1998 as a Lecturer at
Chancellor College. He was still on probation when
his services were
terminated on 2 December 1999 for insubordination and matters
relating to teaching methods. In brief, the applicant
was invited to
a meeting following complaints by some students he was teaching. He
refused to attend this meeting purportedly because
his demands that
certain material evidence to be produced before the meeting were not
met. Following this refusal to meet the students
and Head of
Department, he was invited to a disciplinary hearing to answer
charges of insubordination and ill treating students.
hearing the applicant was found guilty of insubordination for
refusing to attend a meeting summoned by the Head of Department.
Following the guilty verdict he was warned to improve for the better.
Further he was put under observation and his probation was
until such time as he would show change for the better.
the Head of Department did not observe any change in attitude of the
applicant. For instance he recorded that the applicant
compose a lecture, he failed to interact with other members of staff
and that he mistimed assignments. The Head of Department
report which was submitted to the Principal.
Principal submitted the report to the Vice Chancellor who had a
meeting with the applicant on 2 December 1999. According to
exhibit dated 2 December 1999 written in ink on letter of 30 November
1999 from the Principal to the Vice Chancellor, the Vice
discussed the complaints raised by Head of Department with the
applicant. After hearing the applicant, the Vice Chancellor
a recommendation to dismiss the applicants services. The
recommendation considered the warning that had earlier been
of termination referred to the meeting between the applicant and the
Vice Chancellor and it also referred to the warning
The applicant was paid one month salary in lieu of notice.
applicants termination was unfair. A termination is unfair if the
employee is not given valid reasons for the dismissal
opportunity to defend himself. The question is therefore whether or
not before the termination of the applicants services,
he knew the
reasons for the termination and whether before he was dismissed he
was afforded an opportunity to be heard?
The cause of
action arose before the Employment Act 2000 therefore this court will
have resort to the Constitution which in section
31 provides for the
right to fair labour practices. Section 43 provides that before any
adverse administrative action is taken
against an employee, he first
must know the reasons for taking that action so that he can defend
practices entail that a person will not have his services terminated
without a valid reason and without a fair hearing
to defend himself.
The burden of proving reason for dismissal is on the employer, see,
Earl V Slater & Wheeler
was accused of insubordination and failure to conform to standard
teaching methods. This was not clear in the letter
of termination but
it is discerned from reference to the warning letter and the
subsequent events that led to the termination.
The applicant was
asked to appear before a meeting to resolve some students
concerns. His refusal to attend the meeting was
construed as an act
of insubordination. The court notes that the instruction was
reasonable and made in good faith. It had come
from a superior
officer. The court finds that the applicant had no respect for
authority and the reason was valid especially considering
conduct was displayed in a learning institution where moral standards
of both the learner and the teacher have to be
exemplary. The court
upholds the reason of insubordination. This court has held in several
cases that insubordination is ground
for dismissal, see for example:
Mendulo V Malawi Revenue Authority
[Matter No. IRC 161/ 2003 (unreported)].
second reason related to applicants teaching methods. It is noted
that the applicant was advised about students concerns
teaching methods. Although he did not ill treat the students the
applicant was advised to change in his teaching methods
to conform to
the practice and procedure at the department. The letter of warning
referred to counseling in class conduct. However,
failed to conform to expected standards. The court finds that this
was a valid reason for dismissal and it is upheld.
disobedience of rules, regulations and set standards in any
enterprise is serious misconduct warranting summary dismissal;
Mussa V Securicor (Mw) Ltd
[Matter No. IRC 2/2000 (unreported)] and Mendulo
V Malawi Revenue Authority [Matter No.
IRC 161/ 2003 (unreported)].
reasonable practice and 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).
Court finds that the respondent had valid reasons 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
and defend himself; see Chawani V Attorney
General [MSCA Civil Appeal No.18 of
The court heard from
evidence submitted on behalf of the respondent that the applicant was
invited to a meeting with the Vice Chancellor
when it transpired that
he did not heed to the warning to improve. This meeting gave the
applicant an opportunity to explain his
conduct. Prior to this
meeting the applicant had appeared before a disciplinary hearing
constituted to hear allegations of insubordination
case of Fairmount Investments Limited vs. 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.
case of Benjamin Khoswe vs. 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
hearing to satisfy the rules of natural justice or the duty to act
fairly. A fair hearing becomes the employers justification
termination of employment where there is a disagreement of facts.
The duty to apply principles of natural justice does arise
broader principle that where one is to affect anothers 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.
matter, the applicant was invited to a hearing where the allegations
were outlined to him. He was warned to improve. He
was given a period
within which to change through extending his probationary period.
However before this period of observation
expired, he showed no
interest to improve for the better. He was simply a man who was bent
on doing his own thing and had no or
very little regard to authority.
No reasonable employer would be expected to continue such a
was issued with a written warning on 8 November 1999 for
insubordination. Among other things arrangements were made
should be counseled on class conduct. By 30 November the applicant
had not shown any improvement. On 2 December he appeared
Vice Chancellor on his failure to improve for the better. He was
dismissed on that day after the meeting.
are an essential part of administrative disciplinary measure. It has
been held that: An employer is allowed to consider
or verbal warnings when deciding whether to dismiss an employee. See
the case of
Prindella V Limbe Leaf Tobaco Company
No. IRC 49 of 2002(unreported)], see also Kamanga
V Machinery Spares & Trading (MST) Ltd [Matter
Number IRC 51/2003 (unreported)]. It has also been held that it does
not matter whether the warning was issued for the same
constituted the reason for termination or not.
with Employers 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 11BLLR 1117 (LAC), per
with the employers sanction is only justified in the case of
..unfairness. However, the decision
of the arbitrator as to
the fairness or unfairness of the employers 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.
was heard in the instant case that the applicant was invited to
appear before the Vice Chancellor to answer to his failure to
following a warning. The hearing was fair as far as the right to be
heard in administrative setting is concerned. What
was important was
that at the time of the hearing the applicant was free to state his
case and put in his defence. The decision
to dismiss and the
dismissal itself came after the hearing. The applicant was still on
probation. All factors taken into consideration,
this court finds no
compelling reason to interfere with the sanction imposed by the
finds that the respondent complied with the law. The dismissal was
fair according to the Constitution and good industrial
action is dismissed in its entirety.
aggrieved by this decision is at liberty to appeal to the High Court
within 30 days of this judgment.
day of January 2007 at BLANTYRE.