Mangwiyo v Finance Bank Malawi Ltd (12 of 2001) [2010] MWIRC 17 (23 September 2010);

Share
Download: 


IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC PRE 128 OF 2001

BETWEEN:

FELIX MANGWIYO ……………………………………. APPLICANT

AND

FINANCE BANK MALAWI LTD (IN LIQUIDATION) …………….. RESPONDENT

CORAM:

         HIS HONOUR JACK NRIVA DEPUTY CHAIRPERSON
        
Mr D.Z. Namandwa Employers' Panelist
         Ms E. Mtenje Employeers' Panelist
         Applicant Present Represented by Mr Makhalira of Counsel
         Respondent Represented by Ms Kufeyani of Counsel
         Court Official : Ms M. Mbobe

JUDGMENT

Nriva DCP

Introduction

The applicant commenced this action claiming unfair dismissal. The applicant claims the respondent dismissed him in September 2001 without a lawful reason. The respondent states that it was just, right or lawful to dismiss to dismiss the applicant because he was liable for cash shortages. After hearing the parties we proceed to make our findings on the issues:

The Evidence
The applicant testified on his behalf. The respondent called two witnesses. The applicant testified that on 6th September 2001 fiscal police arrested him on an allegation of K140,000.00 shortage. However, a criminal court acquitted him on 18th September 2002. As a result the respondent was supposed to reinstate him. The respondent refused to reinstate him. He, therefore is seeking compensation for flouting conditions of service. He also claims unfair dismissal. The reason is that the respondent did not hear him before the dismissal. Further, the respondent did not substantiate the allegation. He also claims leave pay and severance allowance.

As to the events leading to his arrest, prosecution and, ultimately, the dismissal the applicant had the following to say: he was accused of a shortage. He disputed this. He had never caused any shortage. The respondent suspended him pending investigations. He was never accorded an opportunity to explain the shortage. Nor did he write a written report. Further, there was no charge in that respect. He then wrote a letter to the respondent. He could not comment on the issue as the matter was in court. The respondents first witness was Mrs Dije Margareth Mdala. She was an in-charge of the applicant. The applicant was supervisor of cashiers. He used to collect all cash to strong room. There had been instance of cash shortages with the applicant. To that extent, the applicant's performance was not satisfactory. The witness showed some documents to underscore this point.

As part of customers service the respondent allowed some customers to bring cash after hours.

In this particular case, a customer brought cash to be banked. Next day when the money was counted there was a shortage of K140,000.00. The respondent attributed this to the applicant's negligence. As a result they conducted a hearing at the head office. This led to the applicant's dismissal.

The second witness was Mr James John Dula. He is now working with Kamuzu Academy. Previously he worked as the respondent's human resources manager. When the matter as narrated by Mrs Mdala arose, the management mandated Limbe branch to carry out investigation. The office also sent an auditor. Later the management called the applicant for a hearing but failed to give a statement. In cross examination the witness state that there is evidence in writing that the applicant refused to go to a disciplinary hearing.

Issue

The issue is whether the applicant has proved unfair dismissal and/or the other claims.

The Law

Section 58
Section 57

However in addition to that requirement employers have a duty to act reasonably.

Section 56
In that regard in total regard has to be on the reason for dismissal and procedural propriety thereof. The reason has to be valid. Apart from that the court will have to look at the nature of the violation in relation to the employees duties.

In this case our considered view is that the respondent has established gross violation on the part of the applicant. The applicant was a supervisor of bank fellers. He received the money in question. The money was in clips. The money, was not counted the same day. It was counted the other day. In our view clips amounting to K140,000.00 in whatever bank note denomination would be of a sizable quantity. We fail to appreciate how such a huge sum would go missing without recognition by the supervisor was grossly negligent does not come to us with any sense of surprise. In liable for gross negligence. For that reason the respondent had a valid reason to dismiss the applicant. We agree with counsel for the respondent, quoting Kadammanja vs ADMARC Civil Cause Number 528 of 1996 that employee are fiduciaries and have a duty to act with case and prudence towards their employers. Many a case hold that where money is concerned, there should be assumptions, gross negligence is a serious misconduct see Chadza vs Commercial Bank of Malawi IRC Matter Number 237 of 2002.

On procedural propriety or justice, we take the view that the respondent accorded the applicant to defend himself. The applicant did not co-operate with the disciplinary process and at one point he said he could not comment on the issue as the issue was in court. We feel he refused to be heard. We find it out of order for the same applicant to turn around and accuse the respondent for lack of a hearing. The fact that there was a criminal trial is not a reason for one to refuse to attend an administrative hearing. The respondents were therefore justified to make the decision. Kabembe vs Cargomate IRC Matter Number 53 of 2001. We therefore find that the respondent has a valid reason and acted with procedural propriety when dismissing the applicant the claim for unfair dismissal is dismissed. The applicant cannot claim severance allowance for the respondent has a valid reason of dismissal.

On pension and leave days, the issues have not been tackled sufficiently. We leave it to the parties to sort the issues on their own. Alternatively, if there are differences in calculation we empower the Registrar of this court to lead the parties in reaching a consensus.

Made this 23rd day of September 2010




J. Nriva
DEPUTY CHAIRPERSON




D. Z. Namandwa
EMPLOYERS' PANELIST




E. Mtenje
EMPLOYEES' PANELIST