Chitimbe and Another v Compass II Project (IRC 90 of 20055 ) (90 of 20055) [2007] MWIRC 70 (31 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 290 OF 2005


BETWEEN


CHITIMBE & ANOTHER.…………………………………………… APPLICANTS


-and-


COMPASS II PROJECT …..…………….…………………………… RESPONDENT



CORAM: RACHEL ZIBELU BANDA (MS); CHAIRPERSON
MRN PADAMBO; EMPLOYEES’ PANELIST
D NAMANDWA; EMPLOYERS’ PANELIST
Kapezi; of Counsel for the Respondent
Applicant; present
Chinkudzu; Official Interpreter


JUDGMENT

  1. Dismissal-Reason-Misconduct-Fraud

  2. Procedure-Right to be heard-Right to defend oneself-Must be fair


Facts

The applicant was dismissed for his involvement in fraudulent transaction while working as Driver. He was given funds to use for his accommodation while working out of station. He misused some of these funds and produced a fraudulent receipt to cover up his misconduct. He was invited to a hearing. After the hearing the respondent summarily dismissed him from employment. He challenged the dismissal alleging that the reason was not valid. The respondent on the other hand averred that the dismissal was fair. The reason was fair and the applicant was given an opportunity to be heard


The Law

The Employment Act provides that an employer is entitled to dismiss summarily an employee guilty of serious misconduct inconsistent with the fulfillment of the expressed or implied conditions of his contract of employment such that it would be unreasonable to require the employer to continue the employment relationship, see section 59 of the Employment Act. It has been held in this court that fraud is an act misconduct warranting summary dismissal; see Matsatsa v Stanbic Bank Ltd [Matter Number IRC 198 of 2005 (unreported)]IRC.


In the instant case the applicant tried to show that he was not involved in the fraud. The respondent however showed that the applicant while on duty out of station prepared and produced a fraudulent receipt to cover up misuse of funds. The applicant’s explanation that his bill was inflated because he spent the night with his girlfriend was unjustified. In any case the respondent was not paying for the applicant’s girlfriend and therefore the applicant could not use the respondent’s funds for that purpose without authority.


Finding

The reason for dismissal was valid and process before dismissal was fair. The court therefore finds that the dismissal was fair. This action is dismissed in its entirety.


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’ MEMBER PANELIST



Daphter Namandwa

EMPLOYERS’ MEMBER PANELIST