Chigodo v Escom (MATTER NO. IRC PR 175 OF 2004) (NULL) [2010] MWIRC 12 (31 August 2010);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC PR 175 OF 2004


BETWEEN


BYSON CHIGODO ……………………………………………….. APPLICANT


AND


ESCOM ………………………………………………………….. RESPONDENT


CORAM:

J. NRIVA DEPUTY CHAIRPERSON

Ms E. Mtenje Employees Panelist

H. Chamba Employers Panelist

Applicant Present Represented by G. Nkhoma

Respondent Absent and not represented

Clerk Ms M. Mbobe


JUDGMENT


Nriva DCP:


The applicant commenced this action alleging dismissal and withheld pay. He claims that the respondent employed him on 25th June 2001 as a security guard. His services came to termination on 2nd February 2004. That was after he had been on unpaid suspension from 24th October 2003. The respondent however argues that they dismissed the applicant for incompetence. They argue that the applicant went through a disciplinary process which process found him to be in the wrong and recommended the termination of his services.


The applicant testified that he was working for the respondent as a security guard. He was guarding the house of the respondent’s Chief Executive Officer. During the night of 22nd October 2003 he together with James Chiwile were at the CEO’s house, on duty as security guards. He was manning the gate while the other one was inside the compound with a gun. According to the applicant, a group of persons came at the gate. The group comprised guards who were from a company known as Securicor. The visiting guards told the applicant that they got an alarm from that house. The applicant, however, told them that he had not touched the alarm button. The guards entered the premises and after some inspection, left the premises for their base.


Later, the secretary of the CEO came together with a corporal. The two said that thieves had come to the house. They all went into the house. They found the back door open. The applicant looked for his colleague. When they went to look for him, they found that he was asleep. Next morning the applicant was taken to Ndirande Police for questioning. Later he went to Escom to write a report. He was given a suspension and later there was a hearing. This resulted in the termination of his job.


The applicant, however, said he did not know about the thieves. He was at the gate while his colleague was at the back. There were two noisy generators and his colleague had a gun. His colleague was instantly dismissed on the ground that he was asleep whilst on duty. The company paid him nothing – However, in the case of the applicant, the respondent promised to pay him a three months notice pay. However, they only paid him a one month notice and pension. His salary was K17, 409.00 as a clean wage.


The circumstances of the applicant’s dismissal, as we understand, are that he was a guard manning the gate. There was another watchman who was armed and was guarding somewhere inside the compound. Then there was theft inside the compound. Apparently the wife of the CEO called Securicor. Apparently she also called her husband’s office. When Securicor came they were assured there was no alarm. They left after being convinced that there was no theft. Later, the CEO’s secretary and a corporal came and found that indeed there had been some theft.


Upon checking further, they found the other guard asleep. The applicant was on the gate. Probably the thieves did not use the gate. They used the other inroads other than the gate. In our view, the thieves or the thief entered the compound without being noticed by the armed guard. In our view, to put all this blame on the applicant was improper. We find that the reason to fire the applicant was not a valid reason. The applicant was clearly not in the wrong. For this reason we find that the dismissal of the Applicant was unfair. Section 58 of the Employment Act defines a dismissal as unfair if it does contravene section 57 of the Act. Section 57 of the Act has two requirements: substantive fairness and procedural fairness. The two aspects entail that there should be a reason that is fairly valid; secondly, the employee must be accorded an opportunity to defend himself. If one of these two elements is missing, unfair dismissal is established. In this case, in our view, only for want of a valid reason, the dismissal was unfair. We need not even discuss the aspects of procedural side of the dismissal.


State (The) and Malawi Development Corporation
Ex parte Nathan Mpinganjira

[Miscellaneous Civil Appeal Number 63 of 2003
(unreported)] HC

The decision to suspend is not an administrative action as commonly understood in Constitutional law or as is provided for in section 43. This court doubts very much if the rules of natural justice (the right to be heard) should be evoked where a body, albeit a public one, decides to suspend an employee pending investigations into an alleged misconduct. A suspension is only intended to place a hold on the relationship while an enquiry proceeds.

In that event we find the suspension unjustifiable.,,,,,,,,,,,,,, Kabambe v Cargomate Ltd

[Matter Number IRC 53 of 2001 (unreported)] IRC

Suspension is only allowed where it is specifically provided for in a contract, especially where the suspension is without pay.

The respondent is ordered to pay the applicant’s withheld pay during the time of suspension to dismissal. Otherwise for the appropriate remedy for the actual dismissal, the court shall determine the issue on a date to be fixed. Either party has aright to appeal against the whole or any part of this judgment. The appeal is subject to section 65 of the Labour Relations Act.


MADE this 31st day of August 2010





J. Nriva

DEPUTY CHAIRPERSON





E. Mtenje

EMPLOYEES PANELIST





H. Chamba

EMPLOYERS PANELIST