IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. 343 OF 2005
CORAM: R.ZIBELU BANDA, CHAIRPERSON
- Msowoya; of Counsel for the Respondent Chipembere of Counsel for the Applicant
- Gowa; Official
J U D G M E N T
- Dismissal- Justification-Reason-Misconduct- Failure to carry out reasonable instructions-Unauthorised absenteeism
- Dismissal-Justification-Reason-Capacity-Failure to file documents-Poor time keeping-Poor communication-Sluggishness- Forgetfulness-Poor records keeping
- Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend herself-Right to be heard to be fair and not predetermined
- Procedure-Right to be heard-Notice of hearing-Must relate to matters to be inquired into and not a discussion of a predetermined decision
The applicant was employed on 7 January 1998 as Secretary. She was effectively dismissed on 30 October 2005 for acts of misconduct relating to failure to carry out lawful and reasonable instructions and absenteeism. Further allegations related to acts of incapacity concerning failure to file documents, poor time and records keeping, sluggishness and forgetfulness. The applicant had her performance appraised during the period December 2003 to November 2004. She scored poorly on filing, ability to focus on her errands, time keeping and communication, alertness and efficiency. She was warned on a few occasions notably August 2002, September 2005 and November 2004 for issues relating to general inefficiency.
In any dismissal case where the reason is connected to capacity or conduct the employer is under legal obligation to have valid reasons relating to incapacity and misconduct so that the employee can answer to them and defend herself. This is a basic principle of natural justice which provides that nobody should be condemned without a hearing.
This concerns reason for the dismissal and governed by section 57(1) of the Employment Act. The applicant had been warned before about her acts of incapacity and misconduct as indicated above. The same reasons were given in a letter of termination. The court finds that the applicant had indeed misconducted herself as evidenced from the communication from management to her and her immediate supervisor and vice versa and exhibited in this court. It has been held that misconduct relating to failure to carry out lawful and reasonable instructions is serious misconduct warranting termination of employment, see; Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)], Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)] and Petro V Giant Clothing Co [Matter No. IRC 134/2004 (unreported)].
Repeated absenteeism without valid excuse is serious industrial misconduct entitling an employer to dismiss summarily, refer to section 59 of the Employment Act. It has been held that absenteeism is serious misconduct that may entitle an employer to dismiss, see Chaima V Gray Security Services [Matter Number IRC47 of 2002 (unreported)].
Incapacity concerning the performance of ones duties can entitle an employer to dismiss where the employee is warned but fails to improve for the better. This court has held that employees must be given an opportunity to improve on their inadequacies and that dismissal for incapacity must be a last resort, see; Chibaya V Population Services International [Matter Number IRC 12/ 2000 (unreported)].
It was heard in this matter that the applicant was warned for acts of incapacity as enunciated above. The court finds that the employer was entitled to take disciplinary measures for the applicants failure to improve in the performance of her duties.
It is found therefore that the respondent had reasons both relating to misconduct and incapacity that would entitle them to dismiss the applicant. However before that dismissal was effected the respondent was obliged to comply with section 57(2) of the Employment Act providing that before termination of employment an employee must first be heard.
This court agrees with the applicant that the dismissal was premeditated. The invitation to a hearing was a sham. It was couched in so unclear language that it was difficult for the applicant to construe the intention of the respondent other than that they had already made up their decision to dismiss her. The letter inviting her to a hearing refers to a termination. The court did not find justification in referring to a termination when the purpose of the letter was an invitation to a disciplinary hearing. A disciplinary hearing is aimed at considering allegations made by a complainant and hearing the answer from the accused and anything that she may say in her defence or mitigation. Where a decision has already been made that the outcome of the hearing will be a termination why indeed would an accused bother to attend such a meeting?
Further the letter referred to a question whether to summarily dismiss the applicant? Summary dismissal is the worst form of termination of employment and it is punishment reserved for the worst industrial offences. The connotation was that the intention of the meeting was to consider summarily dismissing the applicant and this is different from a hearing envisaged in section 57(2) which is to establish the reasons and to hear the applicants side before a decision to dismiss whether summarily or not is made.
The applicant was also able to demonstrate that the respondent had in fact for some time contemplated dismissing her for one reason or another including restructuring. Indeed the respondents witness conceded that they had considered restructuring but that it would take too much time to follow all the technicalities required before effecting a restructuring. They opted for the easier and faster alternative but without complying with procedures for that route.
Section 57(2) of the Employment Act states that: 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.
Where a reason is given for taking disciplinary action, the employer is obliged to allow the employee to explain her side and defend herself. In the 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. In the instant case the opportunity to comment on the allegations was not given.
In the case of Khoswe V National Bank of Malawi [Civil Cause Number 718/2002 (unreported)] it was held 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 employers 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 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 instant case the court has found that the hearing was predetermined as a decision to terminate had already been made.
The court acknowledges the view that it is not necessary for administrative proceedings to take the form of judicial proceedings where each and every element is put to detailed scrutiny. In Cornelius & others V Howden Africa Ltd t/a M&B Pumps 19 ILJ 921, the labour court held that: It does not matter whether each of the procedural requirements has been meticulously observed. What is required is for all relevant facts to be looked at in the aggregate to determine whether the procedure adopted was fair. One must guard against rigid imposition of judicial style proceedings in inappropriate situations.
However, where the procedure has signs of defects relating to fairness, the court must address that issue to assess whether the defect was such that it can be said to have rendered the process unfair? This is what Fuller V Lloyds Bank plc  IRLR 336 EAT, addressed by stating that; where there is a procedural defect, a dismissal will be unfair either where the defect was of such seriousness that the procedure itself was unfair or where the results of the defect taken overall were unfair. The procedural irregularity in this matter was serious enough to affect the termination rendering it unfair.
Interfering with Employers decision
Having found in this case that the defect was serious and also that results of the defect taken overall rendered the termination unfair, the court must ask itself the question; whether it is proper in this case to interfere with the decision of the respondent to terminate the applicants contract? It was held, in County Fair Foods (Pty) Ltd v CCMA & others  11 BLLR 1117 (LAC), Kroon JA, that interference with the employers sanction is only justified in the case of unfairness. In the instant case it has been established that reasons were valid but that the procedure was unfair. Therefore the court must interfere with the decision of the respondent.
The effect of section 57 is that both elements of fair and valid reason and fair procedure must be complied with for a termination to be fair. An employer can not chose to comply with one and not the other. Where either of the two is missing or flawed the dismissal must be held to be unfair and this court so finds.
Assessment of remedy
The matter shall be set down on a date to be fixed for assessment of an appropriate remedy under section 63 of the Employment Act. Both parties shall be required to attend the assessment unless there is an agreement to settle the matter out of court.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment in accordance with section 65 (2) of the Labour Relations Act.
PRONOUNCED this 14th day of February 2007 at Blantyre.
- Rachel Zibelu Banda