IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NUMBER IRC 13 OF 2005
MAWAYA AND OTHERS .. ... ..... APPLICANTS
ADMARC .. .. ... ...RESPONDENT
CORAM: R ZIBELU BANDA (MS); CHAIRPERSON
MRN PADAMBO; EMPLOYEES PANELIST
JE CHILENGA; EMPLOYERS PANELIST
Nchembe; For the Respondent
Nyabanga; Official Interpreter
- Dismissal-Reason for dismissal- Misconduct- Spreading false rumours against the respondent
- Procedure- Opportunity to be heard- and defend oneself-Employee to avail himself/herself to the right to be heard
- Interference with employers decision-Only in case of alleged unfair hearing
The applicants were employed on various dates. In August 2004 they were suspended from duties pending investigations into allegations that the applicants were involved in spreading and inciting others into spreading false rumours about the respondent. These false rumours apparently related to a restructuring exercise that was in progress at the respondents corporation during the period. Around November 2004 the applicants were invited to a disciplinary hearing to answer charges relating to violation of the respondents conditions of service specifically Clause 16(f). The applicants attended the disciplinary hearing but they allegedly did not defend themselves. They decided to remain silent. On 4 January 2005 the applicants were dismissed from employment. They challenged the termination alleging that it was not fair. They stated that their disciplinary hearing was not fair because the respondent used armed guards to escort the applicants to the disciplinary hearing premises. They also challenged the reason for the dismissal, alleging that it was not valid.
The respondent on the other hand averred that the reason for termination was valid. It was a prohibited act of misconduct under the conditions of service for the respondent. They cited Clause 16(f) of the said conditions of service which stipulate that: An employee shall be deemed guilty of misconduct if he:- (f) conducts himself in any way objectionable or unbecoming with the proper discharge of his duties (this includes assault or use of foul language and spreading of false rumours against colleagues or the Corporation as a whole).
The respondent alleged that because of the false rumours spread regarding the restructuring process, members of staff were demotivated, some absented themselves from duties and production went down. They also stated that the applicants chose to mislead their fellow employees with false rumours when management did its best to update all members of staff on the progress on the restructuring process. To this effect the respondent produced internal circulars marked RP1, RP2 and RP 3 as exhibits that members of staff were kept informed on the restructuring exercise.
The respondent further alleged that they invited all 18 applicants to a disciplinary hearing as individuals. The notice of hearing laid down the charges. These were read out to each applicant at the hearing. Each applicant was then asked to explain his/her side on the charge. Each of the applicants individually refused to say anything to explain their side of their story or to defend themselves. They chose not to defend themselves. Whereupon the respondent decided to terminate their services. The applicants were paid their terminal benefits.
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 applicants were found guilty of misconduct that was inconsistent with fulfillment of their expressed conditions of service. In this case the applicants breached Clause 16(f) of their conditions of service. The court therefore found that the reason for termination was valid.
The applicants alleged that the reason was not substantiated and that they were not given a proper hearing. They alleged that they were intimidated. The court heard and found that the applicants chose not to defend themselves. They chose not to explain their side of the story. They chose not to utilize the opportunity given to them to have their case heard. They could not allege that the reason was not substantiated where they did not say anything in their own defence. This was not a criminal case where an accused could choose to remain silent. In employment cases an employer is legally compelled to give an employee a right to be heard in a case of misconduct, see section 57(2) of the Employment Act. It means that the employee has a corresponding duty to say something in his/her defence when faced with an allegation of misconduct. S/he cannot choose to remain silent without facing disciplinary action.
The court was not convinced that the applicants were intimidated. It was heard that presence of armed guards employed by the respondent is not unique at the respondents premises. Further the guards did not attend the disciplinary hearing nor did they enter the room where the disciplinary hearing was taking place. The court found that the disciplinary hearing was fair.
Interference with Employers Decision
It has been held in this Court that decisions of employers should not be tampered with if there is no allegation that the process to arrive at the decision was not fair. See the case of Kachingwe &others V Southern Bottlers Mw Ltd [Matter No.162 of 2003(unreported)]. In that case the Court quoted with approval a holding of the Labour Appeal Court of South Africa in the case of County Fair Foods (Pty) Ltd V CCMA & others 11BLLR 1117 (LAC), per Kroon JA:
[interference] with the employers sanction is only justified in the case of ..unfairness. However, the decision of the arbitrator as to the fairness or unfairness of the employers decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all evidential material before the arbitrator.
The Court finds that the respondent complied with the law. The reason was valid and the procedure was fair. The dismissal was fair according to section 57 of the Employment Act. 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
Maxwell RN Padambo
Joel Evalisto Chilenga