IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NUMBER IRC 360 OF 2002
CHIMALIZENI .. ... .......................... APPLICANT
SECURICOR (MW) LTD .. ... ..RESPONDENT
CORAM: R ZIBELU BANDA (MS); CHAIRPERSON
N KAJOMBO; EMPLOYEES PANELIST
J E CHILENGA; EMPLOYERS PANELIST
Makalani; for the Respondent
Nyabanga; Official Interpreter
Dismissal-Reason-Loss of trust-Failure to safeguard client property
Procedure-Hearing-Proof of hearing-Employer to show and convince court that employee given opportunity to explain his side and defend himself
The applicant was employed on13 October 2000 as a Security Guard. He was dismissed on 22 April 2001. He was assigned to guard premises of the respondents client. On the material day the applicant knocked off from night duty after guarding the respondents clients premises. Later it transpired that some property had been stolen from the premises. The applicant was responsible for ensuring the safety of this property. However he was not even aware of the theft. The applicant was dismissed with notice for the reason that the respondent had lost trust in him. The applicant challenged the termination because he said he was not given an opportunity to explain his side and defend himself. He said that he did not know the reason for the dismissal. The respondent alleged that the applicant was given a reason for dismissal and that he was heard. They contended that the termination was fair.
The respondent however was not able to show any record of the disciplinary hearing. There was no notice to attend a hearing as is the practice in the respondents organization. They did not inform court who conducted the hearing, when it was heard and what allegation was put to the applicant for his response. The court found as a fact that the applicant was not given an opportunity to defend himself.
Section 57 of the Employment Act 2000 provides that before a dismissal an employee must be given an opportunity to be heard. He must be allowed to explain his side of the story; defend himself and make any submissions in mitigation. This is to ensure that a decision made does not unnecessarily adversely affect the employee. It is aimed at protecting employees from unilateral dismissal without any valid justification.
In this case the applicant may have conducted himself in a manner that may have warranted disciplinary action. Loss of trust is a valid ground for dismissal for an employer can not be compelled to retain in its employment an employee that they have no trust and confidence in. In fact mutual trust is an implied condition of any contract more so an employment contract.
However before any termination is effected the employer is obliged by law to give the employee a chance to explain his side. In this case as alluded to above, such opportunity was not given. There was no evidence to suggest that the applicant was heard. This made the termination unfair.
The court finds that the respondent violated the law more especially section 57(2) of the Employment Act 2000. The termination was unfair because the applicant was not afforded an opportunity to defend himself.
The applicant had worked for less than one year. In fact he only worked for five months. The reason for termination was valid. The only mischief was that the respondent did not give the applicant an opportunity to defend himself. The applicant is still entitled to a remedy. Under the circumstances of this case, the factors leading to the termination, the length of service and the nature of the applicants job, the court finds that an equivalent of two weeks wages will adequately compensate the applicant. The applicant was earning MK2 400-00 per month. His compensation therefore is MK 1200.00. To be paid to him through court with immediate effect.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.
Made this 30th day of January 2008 at BLANTYRE
Rachel Zibelu Banda
Nick Chifundo Kajombo
Joel Evalisto Chilenga
MY OPINION ON THE MATTER NUMBER 360 OF 2002 OF CHIMALIZENI VERSUS SECURICOR.
NOT VALID BECAUSE LACK OF TRUST IS NOT A VALID REASON AND WAS NOT EVEN JUSTIFIED ALTHOUGH THERE WAS A DISCIPLINARY HEARING AS PER EMPLOYMENT ACT SECTION 61 SUBSECTION 2.
HE WAS ACQUITED BY A COMPETENT COURT.
HE MADE HANDOVERS WHICH WAS NOT DISPUTED BY RESPONDENTS.
APPLICANT WAS CLAIMING SEVERANCE ALLOWANCE BUT ACCORDING TO RECORDS HE WAS PAID AND THEREFORE THIS FAILS.
I FEEL HE IS ENTITLED TO COMPENSATION ALTHOUGH HE WORKED FOR LESS THAN A YEAR.