Chilongwe v Chilembwe Lodge (IRC 16 f 2006 ) (NULL) [2008] MWIRC 17 (26 May 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 16 OF 2006


BETWEEN


CHILONGO………………... ……………………………………………. APPLICANT


-and-


CHILEMBWE LODGE……………………………………………….. RESPONDENT


CORAM: R. ZIBELU BANDA (Ms); CHAIRPERSON

Malijani, A; Employers’ Panellist
Kajombo NC; Employees’ Panellist
Lipenga; for the Respondent

Applicant; present

Gowa; Official Interpreter


JUDGMENT

  1. Dismissal-Reason-Misconduct-Failure to account

  2. Deductions-Lawful deductions from employee-An employer entitled to deduct money from an employee’s wages as restitution-For property damaged by the employee

  3. Deductions- When making such decision employer must act reasonably and in any event a court must consider the penalty that the employer imposes on an employee

Facts

The applicant was on the material day working as a Receptionist. It was alleged that in that evening a client booked a room from the applicant. He was offered such room after making payment of MK3 200-00. The next morning the applicant was confronted by management alleging that he had received money but did not account for it. The transaction was not recorded in the register. The applicant denied that he had sold a room the previous night. The client however confirmed booking and paying for a room but that he did not get a receipt for the transaction. The explanation according to the respondent was that the client was in a hurry to proceed and had booked and paid for the room for his driver.


The applicant was invited to a hearing on charge of selling a room for MK3 200-00 without issuing a receipt and for failure to account for the money. The applicant denied the charge. The respondent was not convinced. They dismissed the applicant. They also refused to pay him his wages for days worked because they believed they had a right of lien over the wages as restitution for the MK3 200-00. The applicant challenged the dismissal and the withholding of wages.




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. It has been held in this court that dishonesty is an act of misconduct warranting summary dismissal; see generally Ibrahim v Suncrest Creameries Ltd [Matter Number IRC 73 of 2003 (unreported)]IRC.


In the instant case the court was of the view that the applicant acted dishonestly. He received money for a room but failed to record the transaction and to account the money to management. It was only through an inquiry by the client that the matter was disclosed. There was no doubt that the applicant had received the money. The evidence of the client was overwhelming. The respondent had valid reason to dismiss the applicant.


Procedure

The applicant was invited to a hearing. He was asked to explain the transaction as reported by the client. The applicant denied the allegation. However his explanation was not satisfactory. The court found that the applicant had been given a fair opportunity to explain his side and defend himself.


Finding

The termination was fair. The applicant was dismissed for a valid reason. He was given an opportunity to be heard. The action is dismissed in its entirety.



Deductions

The applicant had his wages forfeited to reimburse the respondent for money received and not accounted for by the applicant. Section 56(4) and (5) of the Employment Act provide that an employer may deduct a sum of money from an employee as restitution for property damaged by that employee. It provides further that in taking this decision the employer must take into consideration among others the duties of the employee and the penalty imposed on the employee.


In the instant case the court heard that the applicant’s duties were that of serving customers. He would take money and give services to clients. The court heard that it was the responsibility of the applicant to ensure that clients paid for services which he, the applicant provided. In this particular case the applicant served a client who paid for the services. However the applicant did not record the transaction and did not account for the money. The respondent withheld money from the applicant as restitution.


Section 56(5) provides that the employer must act reasonably and in any event a court must consider the penalty that the employer imposes on an employee. The court found that this deduction was unjustified. The respondent dismissed the applicant. This was harsh punishment. Over and above this penalty the employer imposed second penalty that of withholding the applicant’s wages. The court found that this was unfair as it constituted double punishment. The court orders that the respondent pay the applicant wages for the days worked. This order is with immediate effect.

Any party aggrieved by this decision is at liberty to appeal to the High Court in accordance with section 65 of the Labour Relations Act.



Made this 26th day of May 2008 at BLANTYRE


Rachel Zibelu Banda

CHAIRPERSON


Aiman Malijani

EMPLOYERS’ PANELIST


Nick Chifundo Kajombo

EMPLOYEES’ PANELIST