Njiragoma v Southern Bottlers (Matter No 206 of 2009) (206 of 2009) [2010] MWIRC 1 (11 March 2010);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY SITTING AT MWANZA

MATTER NUMBER 206 OF 2009

BETWEEN

REGINALD NJIRAGOMA…………………………………..……………… APPLICANT

AND

SOUTHERN BOTTLERS…………………………………………………… RESPONDENT

Coram:

J N’riva Depurty Chairman

D Z Namandwa Employers Representative

N Kajombo Employees Representative

Applicant available in person

Respondent represented by Mr Sabiti Saidi and Mr Mapemphero Manda, Legal representative

Ngalauka, Mrs. Court official



Namandwa, E R:

JUDGMENT

Issues for determination

In this matter, there are three issues for determination. These are:

  • Whether or not the termination was fair.



  • Whether or not the Respondents were justified to recover K151, 000.00 from his terminal benefits.



  • Whether or not the Applicant was entitled to compensation for loss of use of a company car for one month.

Applicant’s Statement of Claim

According to the applicant’s statement of claim, the Applicant joined the Respondents on 1st April, 2004 as a Brands Manager. On 1st September 2008, the Applicant was invited to a meeting with the Respondent’s Head of Human Resources and Commercial Director where he was given a document citing negligence and improper performance of duties as reasons to justify termination of his employment. On 5th September, 2008, he received a termination letter. The Applicant felt that the termination was unfair because he was simply invited to be informed of the Respondent’s decision to terminate his employment. According to the Applicant he was not charged with a particular misconduct and that there was no disciplinary hearing (he was not heard before his services were terminated). The Applicant also felt that the Respondents were not justified to deduct K151, 000.00 from his terminal benefits. He also argued he was entitled to a company car for both official and personal trips and that for this reason; his terminal benefits should have included loss of use of a company car for one month.

Respondent’s Defence

In its defence, the Respondent’s argued that they were justified to terminate the Applicant’s employment due to his improper conduct and negligence of duties. They cited the Applicant’s poor conduct in South Africa for which he was warned. They also cited an incident that happened at Ryalls Hotel where they alleged that the Applicant misbehaved himself. The Respondents argued that the meeting they had with the Applicant on 1st September, 2008 constituted a disciplinary hearing. They also argued that they were justified to recover K151, 000.00 from his terminal benefits as the Applicant had signed for an invoice/debit of beer bottles which he was expected to return to the respondents. They further argued that the Applicant was not entitled to a company car as his employment contract did not provide for such a benefit. The car he was using was for functional duties.





Analysis of Evidence



The Respondents failed to show the court that they had charged the Applicant with an offence before terminating his services. They claimed that they had sent an email to the Applicant, but such an email was tendered in evidence. The document which they gave to the Applicant on 1st September, 2008 showed that they had already made a decision to terminate his employment. They also failed to present minutes of the disciplinary hearing. The termination letter did not also state reasons.



Finding



The termination of the Applicant’s employment contravened Sections 35(3) of the Employment Act as well as Sections 57 and 61 of the said Act. It is the court’s determination that the Applicant was unfairly dismissed because he was not given an opportunity to defend himself. Furthermore there was no valid reason stated in the termination letter. Their allegation that he had requested them not to state the reasons in the termination letter could not be substantiated. The Applicant also denied having made such a request. Therefore, we find that the applicant’s employment was unfairly terminated. He is entitled to compensation to be assessed by the court.



Coming to the issue of the deduction of K151, 000.00, the Respondent’s produced documentary evidence that the Applicant did not account for K151, 000.00 worth of beer. The Applicant’s claim is therefore dismissed. With regard to the claim for use of a company car, the Respondents also produced documentary evidence that the Applicant’s employment contract did not provide for a company car. This claim is also dismissed.



Conclusion

In summary, we find that Whether or not the termination was unfair and that the applicant should be compensated for that .



We also find that the Respondents were justified to recover K151, 000.00 from the applicant’s terminal benefits.

Finally, the applicant was not, we so find, entitled to compensation for loss of use of a company car for one month.

MADE this 11th day of March 2010







J N’RIVA

DEPUTY CHAIRPERSON







D NAMANDWA

EMPLOYERS’ PANEL







N KAJOMBO

EMPLOYEES’ PANEL