Asidi v Malawi Savings Bank Ltd (IRC 217 of 2004) (217 of 2004) [2007] MWIRC 67 (31 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 217 OF 2004


BETWEEN



ASIDI……..……..……...……………………………...………………….. APPLICANT


-and-


MALAWI SAVINGS BANK LTD…………..………...……………...RESPONDENT



CORAM: R ZIBELU BANDA (MS); CHAIRPERSON

MRN PADAMBO; EMPLOYEES’ PANELIST

JE CHILENGA; EMPLOYERS’ PANELIST

Tchaka; For the Respondent

Applicants; Present

Nyabanga; Official Interpreter



JUDGMENT

  1. Dismissal-Reason for dismissal- Misconduct- Misuse of company vehicle
  2. Procedure- Opportunity to be heard- and defend oneself-Employee to be given a chance to explain his side and defend himself

Facts

The applicant was employed as a Driver in 1996. On 4 April 2000 his services were terminated for misusing company vehicle. It was alleged that the applicant was seen driving and picking up unauthorized passenger in a company vehicle at a time when he was not on duty. The applicant challenged the termination because he was not given an opportunity to be heard. The respondent alleged that the applicant was heard through a telephone conversation that the applicant’s immediate supervisor had with the applicant while the applicant was away on duty to Lilongwe.


Reason

An employer is entitled to terminate the services of an employee who is guilty of misconduct inconsistent with the fulfillment of the expressed or implied conditions of his contract of employment, see section 59 of the Employment Act. In this case the applicant was seen driving a company vehicle at a time when he was not duty. The car according to the respondent should have been packed at the office. Misuse of company property has been held in this court to constitute a valid reason for termination of employment; see Hamuza and another v Dwangwa Sugar Corporation [Matter Number IRC 169 of 2004 (unreported)]IRC.


Procedure

The applicant alleged that the reason was not substantiated and that if he had been given a chance to explain what happened he would have defended himself. He alleged that he was not given an opportunity to defend himself. The court agreed with the applicant. Although misuse of company vehicle is a valid reason for termination, but before the termination the employee must be afforded an opportunity to explain his side of the story and to defend himself. In this case, the applicant was not given that opportunity. A telephone conversation like the one that happened in this matter could not be said to constitute a fair hearing envisaged under section 43 of the Constitution.


Finding

The Court finds that the respondent did not comply with the law. Although the reason might in other cases be valid, in this matter the procedure leading to termination was not fair. Perhaps if the applicant was given a fair hearing he would have defended himself against termination. This termination was therefore unfair.


Assessment of Compensation

The applicant is entitled to an award of compensation as pleaded. The court shall set down a date to assess compensation. Both parties shall be required to attend the assessment.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Made this 31st day of December 2007 at BLANTYRE.


Rachel Zibelu Banda

CHAIRPERSON



Maxwell RN Padambo

EMPLOYEES’ PANELIST



Joel Evalisto Chilenga

EMPLOYERS’ PANELIST