Kulankwa v Action Aid Malawi (69 of 2004) [2010] MWIRC 18 (31 August 2010);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC PR 69 OF 2004

BETWEEN:

SOULESTER KULANKWA ……………………………. APPLICANT

AND

ACTION AID
MALAWI ………..……………………… RESPONDENT

CORAM:

                  J. NRIVA DEPUTY CHAIRPERSON
                 
H. Chamba Employers Panelist
                  E. Mtenje Employees Panelist
                  Kalua for the Applicant
                  Theu for the Respondent
                  Clerk Gowa

JUDGMENT

Nriva DCP:

Preliminary

The issue for determination in this dispute concerns the dismissal of the applicant. The question is whether the dismissal was unfair. The facts of the case are that the applicant started working for the respondent from 1994. He was working as a field supervisor. The respondent later renamed the position as community development facilitator. The respondent dismissed him in the year 2004. This was during the existence of a contract from 21st June 2002 to 30th June 2005.


Facts
The circumstances that led to the dismissal are as outlined in the testimonies of the applicant and the respondent. We now recount the evidence given by the applicant and the respondent's representative.

Applicant's Evidence
The applicant testified that in 2004 there was a review in the respondent's four development areas. The review was to review the strengths and weaknesses of the areas. After the review the reviewers wrote a report.

At that time the people who were working in Phalombe had gone to Mulanje for some assignment. While still in Mulanje a team from Lilongwe comprising Rachel Silungwe and Wope came and told them to go back to Phalombe. The Lilongwe team suspended the applicant and the others for three weeks so that the applicants should be subject to investigations. They were also requested to handover the office for the team to take the documents to Lilongwe.

The applicant further testified that prior to this issue there was an audit report. There were some queries of which he and a Mr Muhara (Late) responded to. After that there were no further communications on the issue. The audit
report, according to the applicant, did not specify as to who was responsible for the query.

Two weeks after the suspension, on a Sunday the applicant receives a call from Rachel Silungwe. The latter instructed him to go to Lilongwe on Tuesday with Mr Damiano who was his supervisor. The time he received the call, he was on his way to see a sick person. The person later died. He informed Ms Silungwe about this and that he could not make it to Lilongwe on the appointed date. Ms Silungwe told him that it was in order. But on Wednesday Ms Silungwe called him asking why he did not go to the meeting. She informed him that the meeting involved individuals so he could still go as the panel was still in Lilongwe. The applicant told Ms Silungwe that he would go to Lilongwe. Ms Silungwe told him she would call back. Ms Silungwe, however, did not call the applicant. He reminded her but she did not call back. On Friday the applicant called her but she said she was not at work. She told him that she had gone to a hospital with her child.

Later she called him and told him not to go because a decision had already been reached. The decision was that the applicant had been dismissed for fraud and insubordination. These grounds involved theft of money and failure to go to Lilongwe to attend the meeting. The other ground was growing tension with the communities. Ms Rachel Silungwe told him that he would send him the letter. However the applicant did not receive the letter for a month.

When, he consulted the supervisor at Phalombe, the supervisor informed the applicant that, the respondent was consulting lawyers.
Later on, he got the letter which had one more ground for dismissal. This was illegal holding of the Action Aid money. The applicant stated that he the charge was strange to him. He did not know about the issue. The applicant stated that there was no letter calling him to a disciplinary hearing; he only got a call from Rachel.

Respondent's Case
The witness for the respondent was Flora Kandulu. Ms Kandulu is the respondent's head of human resources. She joined the respondent on 1st June 2010. Thus she was not at Action Aid at the time the respondent dismissed the applicant. However she made reference to all the circumstances that led to the respondent's decision to dismiss the applicant. The circumstances are these: There was a review at Action aid. The applicant's development area was among those areas that were reviewed. A report for the review had a number of issues concerning the members of staff of the development area. One of the persons involved was the applicant. The management suspended him to pave way for investigations. The management suspended him on 2nd April 2004 and terminated his services on 20th April 2004. The management told him to attend a hearing but he failed to do so. According to the respondent's conditions of service, failure to attend a hearing is insubordination. So they wrote a letter dismissing him. The Human Resources and Development Manager called the applicant to attend but the panel had no information why he failed to attend.

In examination by the court, the witness stated that she did not have a disciplinary hearing report. She further stated that Rachel had a picture that the applicant would attend. She also stated that she was sure that Rachel gave the applicant enough time to prepare for the hearing.

In examination by the applicant's legal representative, the witness
told the court that she was not conversant with the respondent's policy for disciplinary hearing that existed at the time they were dismissing the applicant. She also stated that a letter would have taken long to reach the applicant. For that reason, they simply called the applicant. The simplest thing the applicant had to do was simply to go to Lilongwe. She stated that all the evidence she was giving was based on the information in the document at her office.

Issue for Determination and the Determination
The issues for determination in this dispute are:

a)      
whether the applicant was unfairly dismissed
b)       whether the applicant is entitled to severance allowance and terminal benefits.

To answer the first issue, the court has to have recourse to the law on unfair dismissal. Sections 57 and 58 of the Employment Act become relevant. If there is no valid reason to dismiss an employee unfair dismissal is proved. But even if the reason is valid the dismissal would be unfair if the respondent does not accord the applicant the opportunity to be heard and defend himself.

If the answer is that there was fair dismissal that would mark the end of the issue. The court will then have to consider whether the applicant is entitled to the other benefits. Otherwise, for the issue of severance allowance to succeed, the dismissal must be unfair. Section 35 of the Employment Act refers. More to that, should the answer be that there was unfair dismissal, the other question would be the other appropriate remedy, apart from severance allowance to award the applicant.

To put the issues in the perspective we should answer the question one by one. Was there a valid reason? Rather
were there valid reasons? The reason in the termination letter is fraudulent practices in the applicant's conduct of work. For a court to find a reason to be valid or not, it has to look to at all the evidence surrounding a case. In this case having heard all the evidence we are at a loss how the issue of fraud came up. The issue is not clear as to how much the money was involved and who was actually involved. In those circumstances, it is difficult for us to find whether the reason was valid. The burden to prove validity of a reason lies with the employer. All the employee has to establish is that he was unfairly dismissed. In this matter the respondent has hardly established the validity of the reason. We therefore find the reason of dismissal. However, even if the reason were valid, we would have had problems with the procedure in dismissing the applicant. The respondent did not hear the applicant at suspension, during investigations and when making the decision to dismiss him. The respondent did not lay down the charge the applicant was to answer. In addition to that, the respondent did not accord the applicant a right to defend himself.

However, if the evidence of the applicant is anything to go by Ms Rachel told him the meeting was not aimed at hearing him but to communicate to him the results of the investigations. Considering that there was no evidence of any prior warning, we find the acts of the respondent in consistent with fair labour practices.

The next question, therefore, is the appropriate remedy for the applicant.
In the circumstances of the case reinstatement or reengagement would not be appropriate, in our view. We shall, therefore order monetary compensation to the applicant. We believe the appropriate remedy in terms of compensation is to order payment of salary up to the time of termination. The respondent should, therefore, pay the applicant his salary dues from the day of suspension up to the date of end of his contract.

The applicant should also be awarded severance allowance using the formula that was applicable at the time of dismissal. This is taking into account that the dismissal was unfair. On the issue of terminal benefits, the respondent should pay the applicant his gratuity as provided for under the employment contract.

Conclusion

In conclusion, the applicant's action succeeds in its entirety. We find that he was unfairly dismissed and therefore entitled to severance allowance and compensation. He is also entitled to gratuity.

Within the next seven days, the parties should calculate the dues and the respondent should pay the applicant all his dues in relation to this judgment within the next fourteen days.

Any party has a right to appeal against this decision either the whole or in part. The appeal is subject to section 65 of the Labour Relations Act of Malawi.

MADE this 31st day of August 2010





J. Nriva
DEPUTY CHAIRPERSON




E. Mtenje
EMPLOYEES PANELIST




H. Chamba
EMPLOYERS PANELIST