Lugomba and Others v Blantyre Newspapers Ltd (IRC 411 of 2005 ) (411 of 2005) [2007] MWIRC 5 (23 January 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 411 OF 2005


BETWEEN


LUGOMBA & OTHERS…………………………… …………………..APPLICANTS


-and-


BLANTYRE NEWSPAPERS LTD…………………... ……………..RESPONDENT



CORAM: R. Zibelu Banda, Chairperson
Chipembere; of Counsel for the Applicants
Mwantisi: of Counsel for the Respondent
Gowa; Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Misconduct-Breach of rules and procedures-Failure to account for fuel-Procedure- Right to be heard-Hearing.

  2. Hearing-First hearing-If flawed-Defect cured on appeal

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


Upon hearing the applicant and the respondent the court finds that the applicant and his co-applicants who were employed and working as Drivers failed to account for fuel or due to improper carrying out of their duties led to theft thereof. The applicants were invited to a hearing to explain themselves. After this meeting the applicants were dismissed.


The applicant admitted appearing for a hearing. They however challenged the reason contending that it was not valid. They averred that they never at any time stole or failed to account for fuel. They did proper handovers and they were never queried for any loss of fuel. The respondent on the other hand stated that the applicants were claiming to use more fuel than was required on the trips they were making. The applicants allegedly failed to account for fuel as the trips they were making used less fuel than was being consumed when the applicants were driving the vehicles. The respondent carried out an investigation to come to this conclusion. The court finds no compelling reason to disagree with the respondent on the validity of the reason.


The applicants admitted appearing before a disciplinary hearing to have their case heard. They however complained that the composition of the panel was improperly constituted. They first argued that the complainant was judge in his own cause. This was refuted by the respondent. The court did not find any merit in this argument. It was far fetched and did not prejudice the applicant’s case. In any case if indeed the first hearing was flawed in terms of composition of the panel, this defect was cured on appeal, see, Sartor V P & O European Ferries (Felixstowe) Ltd [1992]IRLR 271 CA.


The applicants also, alleged that the Company Secretary appeared at both the first hearing and the appeal. It was however shown that the Company Secretary was present at the meetings as legal adviser for the respondent company. The court finds that the presence of the legal adviser did not prejudice the applicants’ case.


Additionally, the applicants claimed that they were dismissed on another charge for which they were not called to answer to. The court has found that the reason for which the applicants’ were called for a hearing and were asked to answer to was a valid reason for termination as it involved breach of mutual trust and confidence which is an implied term of any employment contract, see, United Bank Ltd V Akhtar [1989]IRLR 507 EAT. Therefore the additional reason does not in itself affect the decision of the respondent.


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 23rd day of January 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.