INDUSTRIAL RELATIONS COURT OF MALAWI
NO. IRC 173 OF 2004
- CORAM: RACHEL
ZIBELU BANDA (MS); CHAIRPERSON
- MRN PADAMBO;
Chizuma (Ms); Ag. Deputy
Nchembe; For the
be valid and justify action taken by Respondent
Procedure-Right to be
heard-Right to defend oneself-Must be fair
The applicant was dismissed
for incurring shortages. He was operating an ADMARC depot as Buyer.
He kept some maize grains. Auditors
from the respondent company
visited him for stork taking. They discovered a shortage of 1400kgs
of maize. The applicant was asked
to explain the shortage to the
Auditors. He explained that the maize had lost weight because it was
eaten up by pests (weevils).
The applicant further explained that he
had on several occasions reported to management that the maize under
his care was under
the attack of weevils. The respondent did not
respond to his reports and concerns. At the time of the Audit the
not acted on the report and concerns of the weevils.
The respondent dismissed the applicant based on the Audit report. The
challenged the dismissal on the basis that the reason was
not valid and that he was not given an opportunity to be heard.
- The respondent
conceded that they did not investigate the concerns of the applicant
that maize was eaten by pests and hence the
loss of weight. They
did not invite the applicant to a hearing where he could defend
himself. Further the respondent conceded
that the applicant
reimbursed the respondent for the lost maize although they never
investigated whether the loss of weight was
due to the applicants
negligence or due to an attack by pests.
- The Law
In all dismissal cases
employers must act with fairness and must apply rules of natural
justice as enshrined in the Employment Act,
sections 56 and 57. They
must assess each case according to its merits and act with lenience
where an employee gives a good reason
for his action. It was also
held in Matipwiri v Securicor (Mw) Ltd [Matter Number IRC
131/2001 (unreported)] that penalty must fit the offense.
case the applicant had a good reason why the maize lost weight. The
respondent did not investigate the reason. The applicant
several occasions asked management to do something about pests that
were destroying the maize. The respondent did not do
applicant was advised to reimburse the respondent the lost maize. He
complied, and yet the applicant was still dismissed.
The reason for dismissal
was not valid and process before dismissal was unfair. According to
section 58 of the Employment Act, this
court must find that the
termination was unfair on both substance and procedure. On procedure
because the respondent did not hear
the applicants side and
defence and if they heard them, they did not take their defence and
explanation into consideration when
making the decision to dismiss.
applicant did not claim for reimbursement of his maize and cash which
was wrongfully demanded from him when in actual fact the
have been destroyed by weevils. There was no justification for the
respondent to demand the maize back. If it had been
pleaded the court
would have ordered that the respondent return the maize and cash to
The matter shall be set
down on a date to be fixed to assess an appropriate remedy. Any
aggrieved by this decision is at liberty
to appeal to the High Court
within 30 days of this judgment.
this 15h day of November 2007 at Blantyre.