Maiden v Standard Bank Ltd (IRC 21 of 2006 ) (21 of 2006) [2008] MWIRC 22 (28 May 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 21 OF 2006


BETWEEN


MAIDEN…….……………….………………………… ……..…………...APPLICANT


-and-


STANDARD BANK LTD………………..……………... ……………..RESPONDENT



CORAM: R ZIBELU BANDA (MS.); CHAIRPERSON
A MALIJANI; EMPLOYERS’ PANELIST
NC KAJOMBO; EMPLOYEES’ PANELIST
Bandawe; of Counsel for the Respondent
Majamanda; of Counsel for the Applicant
Kanyongolo; Law Intern for the Respondent
Gowa; Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Misconduct-Dishonesty-Making payment without cover-Concealing payment from management

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

  3. Appeal-Appeal to cure defect-Defect to relate to the conduct of the hearing of the first instance-Right to appear on appeal depends on whether there is a defect to be cured


Facts

The applicant was dismissed from the respondent’s employment. The reason for the dismissal was that the applicant had committed acts of misconduct. These acts involved dishonesty where it was alleged that on the material day, 5 August 2005, the applicant knowingly and deliberately sent SWIFT Messages for payment of his examination fees to the Institute of Bankers, South Africa without cover and that he tried as much as possible to conceal his actions from management. The applicant was invited to a disciplinary hearing to answer the charges. He explained his side of the story and defended himself. The respondent dismissed the applicant after the hearing in accordance with Part 6 of the Bank’s Disciplinary and Grievance Procedures. The applicant was not satisfied with this decision and lodged this action. He challenged the reason for dismissal and the procedure.



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.

It is 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; if one or both of these requirements are not complied with the dismissal is unfair. See; Beseni v Education Department of Nkhoma Synod [Matter Number IRC 320 of 2002 (unreported)] IRC.


Reason

Misconduct involving dishonesty is an unfair labour practice which is condemned in all civilized labour markets. It has been held in this court that misconduct involving dishonesty is a serious act of indiscipline entitling an employer to terminate a contract of employment, see for instance, Mnenemba v Barloworld Plascom Ltd [Matter Number IRC 5 of 2004 (unreported)] IRC .


In the instant case the court was convinced with the respondent’s justification for the termination. The applicant acted dishonestly by transferring forex for his benefit without following bank procedures. It was heard and proved that the applicant did not have funds in his account to facilitate the transfer. In essence the applicant ‘stole’ money from the bank to pay for his examination fees. He concluded the transaction without informing or seeking management’s authority as required. One of the requirements was that the applicant could have applied for a loan facility from the bank as his employer to cover the transaction. However the applicant did not bother to follow any of that.


His explanation was lame and not justified. For instance the applicant told court that he needed the fees urgently and that was why he omitted some procedures and that he could not apply for a loan because he already had several other loans with the bank. It was observed that that the applicant was the one sitting for examinations and that it was his responsibility to make preparations for payment of fees in good time. It was also observed that the transaction was concluded several days before the due date, meaning that the applicant would have followed procedures if he had wanted and still meet the deadline. In terms of having too many loans, that was the applicant’s problem and it could never justify taking money from an employer without authority.


Procedure

The applicant tried to show that he was not given a fair hearing. He stated that he was not heard on appeal. The court found that there was no defect at the first hearing. An employee may be invited to be heard on appeal where he shows that the hearing at the first instance was flawed or had defects that needed to be cured. In this matter the court found that there was none to necessitate an oral hearing on appeal. The facts were the same and there was no material substance subject of an oral appeal hearing.


The standard in labour and administrative matters is that where an employer has cause to discipline an employee and puts forward to that employee an allegation and asks him to respond, that fulfills the right to be heard. It does not have to take judicial or quasi judicial form to be a disciplinary hearing. In Cornelios & others v Howden Africa Ltd t/a M&B Pumps [1998] 19 ILJ 921, the Labour Court in South Africa held that:


It does not matter whether each of the procedural requirements has been meticulously observed. What is required is for all relevant facts to be looked at in the aggregate to determine whether the procedure adopted was fair. One must guard against the rigid imposition of judicial style proceedings in inappropriate situations.


In a local case by this court; Kumwenda v Paralegal Advisory Service and Youth Watch Society [Matter Number IRC 447/2003 (unreported)], Hon. Mkandawire as he then was held that:


Section 57(2) demands that the employer should afford an employee the opportunity to defend himself or herself. What this entails therefore is that there should be specific charges or a specific charge against the employee. The employee should then be given adequate time to respond to the charges. The hearing shall depend on the prevailing styles at the workplace. Some institutions have a disciplinary committee at their place of work. Some institutions will appoint specific officers to conduct the hearing. Some institutions have a Board of trustees or Directors. But what is important is that there should be a hearing whereby the employee is leveled with allegations. Some hearings will be orally conducted with the employee having a chance even to cross-examine potential witnesses, whilst some hearings will take the form of the employee responding to written allegations also in writing.


In the instant case, the court failed to appreciate how the applicant could claim that he was not given a fair hearing. It was found in fact that the applicant was given a fair hearing.


Finding

The court finds that the reasons for dismissal were valid. 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.


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 28th day of May 2008 at BLANTYRE.


Rachel Zibelu Banda

CHAIRPERSON



Aimani Malijani

EMPLOYERS’ PANELIST



Nick Chifundo Kajombo

EMPLOYEES’ PANELIST