Cement and Ors v Shoprite Trading (Malawi) Limited (MATTER NO. IRC PR 49 of 2005) (49 of 2005) [2010] MWIRC 14 (16 September 2010);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC PR 49 of 2005

BETWEEN:


JOCKINGS M CEMENT AND OTHERS………………………………………….APPLICANTS


AND


SHOPRITE TRADING (MALAWI) LIMITED………......................………………………..RESPONDENT


CORAM:

J. N’RIVA; DEPUTY CHAIRPERSON

E. MTENJE; EMPLOYEES PANELLIST

D Z NAMANDWA; EMPLOYERS PANELLIST

APPLICANTS PRESENT AND REPRESENTED BY C KADYAMPAKENI OF COUNSEL

RESPONDENT ABSENT

CLERK; M MBOBE


JUDGMENT


N’riva DCP:

The applicants claim that the Respondent unfairly dismissed them from employment. The applicants were managers in the respondent’s various shops. The respondent owns a chain of shops in Malawi. The respondent dismissed the applicants on the allegation that they authorised sale of expired goods.


This case has a bit long history. To begin with, it is our view that the facts of the case are short. The common feature in the evidence is that the applicants were not satisfied with the reasons and the procedure followed in dismissing them. The witnesses argue that the dismissal was pre-arranged and that the hearing was but a mere facade.

Despite, as we said, the case being short, the matter has taken so long. On 29 March 2005 the Court entered default judgment. The Court appointed a date to assess compensation. The Court went on to assess the compensation and went on to make an order of damages. The Court went on to issue a warrant to execute the judgment. The respondent sought stay of the execution of the judgment with intention to seek a motion to set aside the default judgment. The respondent never sought the motion to set aside the judgment. As a result, the Court froze the said order of stay of execution. The respondent once again sought the stay of execution. The Court stayed the execution of the judgment and gave the respondent five days within which to file summons seeking to set aside the judgment. Upon hearing both the parties, the Court set aside the judgment so as to enable both the parties present evidence in the Court.

On 21 June 2005 the respondent filed a statement of defence. Later in November the Court set down 8th December ???? as a date of pre-hearing conference. The conference did not take place and the hearing was postponed three times. Apparently, the hearing took place on 8th December 2005/??//. In May 2006, the Court heard the substantive dispute. The Court adjourned the matter to make a determination. It seems the Court prepared the judgment. However, counsel for the respondent asked the Court to reschedule the delivery of the judgment. This was to enable counsel cross-examine the witnesses and also to present their evidence in defence. Apparently, the Court set down a date of hearing. On the date appointed, the respondent did not show up. The Court proceeded to deliver the judgment. The Court later appointed a date to assess the compensation for the applicants. The respondent sought the Court’s indulgence to discharge the notice of assessment of compensation on the ground that they were not served with the notice of hearing of the substantive case. The Court found that there was no service on the respondent and ordered that the respondent should be given a chance to cross-examine the witnesses. The full panel of the Court re-heard the matter. Again the respondent was not present. The Court, again, set down a date for judgment in the matter. Counsel for the respondent, once again, asked the Court to stay the process of handing down the judgment so as to cross-examine the witness and to lead evidence on behalf of the respondent. This matter was, therefore, coming for the very purpose of cross-examination and the defence. The respondent was not available, and because there was a new panel altogether, it reheard the matter. We adjourned for the judgment. The applicant called on us to take note that the matter has dragged a great deal. Indeed, we do take notice that the matter has taken long. The panel intended to proceed with the judgment. After that the respondent sought to have the matter reheard. After the parties appeared before the Court, we agreed that the Court should proceed with the evidence of the first witness for the applicants and proceed to hear the defence case.


We now proceed to survey the evidence of the parties in this matter. The witness for the applicants was the first applicant. He said that on 10 November 2004, he had come from off duty. The respondnet’s general manger told him that he should write down all the stock damaged during the strike that ended the previous day. He invited all the sales managers and told them about the instruction. They listed all the damaged stock. He gave the list to one Marius. Marius was the respondent’s buying officer. The buying officer advised the applicant to take out all the damaged stock on the list from the store. He advised the applicant to keep the groceries in the bulk store and the perishable groceries in the fridge. He further advised him to inform the Malawi Revenue authority and the City Assembly to come and collect the stock and dispose it. As he was waiting to sign for the list, after four days, he went to ask Marius to sign for the list. Marius told him he was waiting for the general manager to sign. The general manager called the applicant to his office. The applicant found a carton of margarine on the general manager’s desk. He asked him why he was selling expired goods to customers. He answered by saying that he did not sell the said goods. He also said the sales managers could be his witnesses on that aspect. The general manger had a list of sold items (expired) for the same day which had been sold. The general manger also said he would call a customer to testify on that aspect. He called a customer who happened to be a labourer within the premises of Shoprite. The labourer explained that he had seized a carton from someone in Ndirande. He noted that the person had expired goods and they seized the carton and forwarded it the respondent’s general manager. He said the labourer had not bought the carton but got it from someone in Ndirande. The applicant stated that he was surprised that the actual customer did not appear on that day. The meeting ended. The general manager asked the applicants to write a report. The applicants suggested that the supervisor too should write a report. However when the supervisor wrote the report, the general manger tore it apart and asked them to write another report. They were served with a letter of suspension and told them to come back on 10th December 2004 for a hearing. On the 10th, the applicant asked that they should be represented by union members. The respondents declined the request despite the assurance by one Mr Hank that they had a right to be represented. Mr Hank was the chair of the meeting. Yet, according to the applicants, he was also the complainant. The meeting was by the way of questions to the applicants. They were told to come the next day for the results. On the 11th day of December, 2004, the respondents gave the applicants the notification of the result of the hearing for them to sign. The result was that they sold the expired stock and the respondent proceeded to dismiss them. They refused to sign the notification. They sought the audience with the general manager, but the manager refused to meet them. After the dismissal, the management brought back the expired stock for sale. The applicants bought the items and kept the receipts.


The respondent had one witness who was Matthews Mwase, the respondent’s personnel manager. He knew of the case at hand through the records in his office. He stated that the respondent served the applicants with notices of suspension together with notices to attend a disciplinary hearing. After the hearing the respondents gave the applicants the notification of the results. In cross-examination, the witness stated that he was not aware of the person who bought the items in question. He also stated that he was not aware that the respondent was still selling expired goods (after the dismissal of the applicants).

Having narrated the evidence, it is now our duty to make a determination on the matters arising in this dispute. The first issue for determination is whether the applicants had a fair dismissal or not. Secondly, the issue is whether they are entitled to the other entitlements they claimed.

To begin with we find that the applicant has established that the dismissal was unfair. First, we find the reason not to be satisfactory. It seems to us that the respondent had withdrawn for sale all the expired goods. We do not find it as true that somebody bought the expired goods. We do not comprehend then how a labourer within Shoprite would then take the same goods from somebody in Ndirande and bring back the goods to the general manager. If so why did that person not come to Shoprite? Did he lose interest in the goods he bought? In short, we find the issue of sale of expired goods less satisfying. We find it as a mere gimmick to get rid of the applicant. As the applicant’s witness indicated the carton was sealed. It was not yet opened. Further, the expired goods were locked away. And the supervisor and his assistant were the ones responsible for the key. When the supervisor wrote a report on the issue, the respondent tore it apart. In all these circumstances we do not find the applicant’s reasons for the dismissal as adding up. In short the respondent had no valid reason with which to dismiss the applicants. We find that the reason was staged up. For that reason the disciplinary hearing was also a mere sham. It was a means to an end. Nevertheless, even if there were a justifiable reason to dismiss the applicants, the disciplinary process leaves a lot to be desired. The chairperson of the hearing was the very complainant in the whole issue. That alone, raises eyebrows as to the fairness of the process. In addition to that, the respondents denied the applicants a chance to call witnesses and representatives. Therefore, we find that the dismissal was unfair by virtues of Section 57 of the Employment Act, for want of substantive and procedural fairness and justice. That provision requires that:

(1)The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.

(2) the employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity



A combination, as stated in Beseni v Nkhoma Synod,1 of substantive and procedural justice amounts to fair dismissal. If one aspect is missing, or if the both aspects are missing, the dismissal is unfair. Consequently, at a separate hearing we shall assess the applicant’s compensation and their dues from the respondent. On the second issue, the parties having not sufficiently addressed the Court on the claims due. The issue should be subject to determination at the appointment to assess the remedy.


Any party dissatisfied with this decision has right to appeal subject to section 65 of the Labour Relations Act.




DELIVERED at Blantyre this 16th day of September 2010





J. N’RIVA

DEPUTY CHAIRPERSON





E. MTENJE

EMPLOYEES’ PANELLIST





D Z NAMANDWA

EMPLOYERS’ PANELLIST


1 IRC Matter number 42 of 2001

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