Kamungu v Admarc (IC 196 of 20011 ) (196 of 20011) [2008] MWIRC 10 (04 March 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 196 OF 2001


BETWEEN


KAMUNGU..……………………………………………… ……………...APPLICANT


-and-


ADMARC………………………………………………... ……………..RESPONDENT



CORAM: R. ZIBELU BANDA (MS.); CHAIRPERSON
A MALIJANI; EMPLOYERS’ PANELIST
M PADAMBO; EMPLOYEES’ PANELIST
Nchembe; For Respondent
Applicant; Present
Chimkudzu; Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Misconduct-Shortage

  2. Procedure-Right to be heard-Disciplinary hearing- Fair


Facts

The applicant was employed by the respondent. At the material time he was responsible for handling the respondent’s stork including tobacco. The applicant used to buy tobacco and other farm produce from farmers. He would then remit such produce to the respondent’s depots. It was found that the applicant had remitted less tobacco than what he had purchased and recorded in his books. The applicant was invited to a disciplinary hearing to explain the shortage. However the applicant’s explanation was not convincing, hence the dismissal. The applicant was aggrieved and brought this action. The respondent averred that the dismissal was fair.


The Law

Section 57(1) of the Employment Act provides that before dismissal a person must be provided with a valid reason. While section 57(2) of the act provides that where the reason is connected with a person’s conduct, he must be given an opportunity to be heard.

Several cases have held that in all cases of dismissal, an employee must be given a valid reason and an opportunity to state his case and defend himself. See for example: Beseni v Education Department of Nkhoma Synod [Matter Number IRC 320 of 2002 (unreported)] IRC.




Misconduct involving incurring shortages has been held to constitute valid ground for dismissal, see: Ulaya v SDV (AMI) (Mw) Ltd [Matter Number IRC 133 of 2001 (unreported)] IRC.


In this matter the applicant admitted that he had incurred shortages in tobacco. He also admitted attending a disciplinary hearing. He said he had a good reason for the shortage. He attempted to explain the reasons for the shortage. The court was not convinced with the applicant’s explanation. The court found as a fact that the applicant had incurred tobacco shortages and that he had no good reasons for the shortage to offer to the respondent at the disciplinary hearing on the issue.


Finding

The court finds that the reason for dismissal was valid and that the applicant was accorded an opportunity to state his case before dismissal. The respondent complied with the requirements of the law. This action is therefore dismissed in its entirety.


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.


Made this 4th day of March 2008 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON



Aiman Malijani

EMPLOYERS’ PANELIST



Maxwell R Padambo

EMPLOYEES’ PANELIST