Court name
Industrial Relations Court

Mbewe & Ors. v Pharmanova Ltd () [2010] MWIRC 9 (31 July 2010);

Law report citations
Media neutral citation
[2010] MWIRC 9





IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI





PRINCIPAL
REGISTRY





MATTER
NO. IRC PR




BETWEEN:





FRASER
A. MBEWE AND OTHERS ………………………………………………………….APPLICANT





AND





PHARMANOVA
LIMITED …………………………………………………………………………..RESPONDENT





CORAM:


J.
N’RIVA ; DEPUTY CHAIRPERSON


D.
NAMANDWA ; EMPLOYERS PANELIST


E.
MTENJE ; EMPLOYEES PANELIST


APPLICANT
; PRESENT (ONE)


RESPONDENT
REPRESENTED BY A.K. NYIRENDA


CLERK
; NGALAUKA





JUDGMENT





The
applicant, and two others, brought the action against the respondent
claiming unfair dismissal.





The
question for determination is whether the dismissal was fair and
unfair. We have heard evidence of one applicant. The others did
not
come to testify. For avoidance of doubt, this determination concerns
the applicant who testified.


We
will then treat the matter as disposed of unless and until the other
applicants revive their claims.





The
applicant is Frazer Augustine Mbewe. He testified that there was a
strike at Pharmanova. This was after the employers and the
employee
representatives failed to reach an agreement on proposed salary
adjustments. The workers threatened, and, eventually went
on, a
strike. The company asked the employees to re-apply if they wished to
be redeployed.





Some
twelve employees were not redeployed. These were suspended and later
dismissed on the ground of their involvement in the strike.
As for
the applicant, he was told that, in addition to the strike, he
misbehaved during the strike. In his evidence he said one of
the
managers was among the strikers. Yet he – the manager – granted a
newspaper an interview suggesting that the salaries that
the
employees were demanding were untenable. In other words, the manager
through the newspaper was condemning the striking workers.
The
applicant, then, asked that manager, Mr Makaka, if indeed he granted
that interview. This, accordingly to the witness, is what
the
management referred to as misbehaviour.





The
applicant further told this court that he was forced to apologise in
writing. He wrote the letter and apologised for his involvement
in
the strike. Later, the respondent held a disciplinary hearing against
the applicant. The applicant claims that the hearing did
not give him
a chance to explain his side of the story. Rather, the hearing only
made reference to his letter of apology. After the
hearing, the
respondent went on to dismiss the applicant.





The
applicant therefore feels that the dismissal was unfair. He advances
the following reasons: The strike was all-encompassing. He
was not a
leader and he was just following the others. More to that there was
no way he could enter the office as the office were
closed. Bosses
also took part in the strike. Yet they – the bosses – were not
dismissed.





In
examination by the panel, the applicant said he did not know whether
the strike was legal. He said he was just following.





We
are called on to determine whether the applicant’s dismissed was
fair or not. Under section 57 of the Employment Act an employee
can
have his services terminated if there are valid reasons connected
with his capacity and/or conduct. Under section 57 (2), the
employee
has to be given an opportunity to be heard and defend himself before
the employer makes the decision.


Was
the dismissal fair or not? Was there a valid reason? If so, did the
respondent grant the applicant the opportunity to defend himself?





In
our view, we are of the opinion that the respondent had a valid
reason with which to terminate the applicant’s job. There was
a
strike. There is no indication that the strike was a legal one. As
the management indicated in the applicant’s letter of termination,
that amounted to a deliberate abandonment of duty.





We
also form the opinion that the respondent heard the applicant. In the
very letter of suspension, the respondent’s general manager
gave
the applicant liberty to submit written representation as to why he
‘should not be dismissed for the said conduct’. The
applicant
then wrote a letter to the acting personnel manager apologising for
his participation in the strike.





The
applicant has stated that he was forced to write the letter. However,
we are not satisfied that he was so forced. Reading through
the
letter, we fail to appreciate that the letter was forced on him.
First, the letter talks about his involvement in the strike.
Later,
the letter begs for assistance over an accident he had had. How could
these issues be written in a forced letter? We fail
to understand. We
therefore find as false that the applicant was forced to write the
letter of apology. We find, therefore, the letter
to be a response to
the management’s request of the applicant to explain his side of
the story. That, in our view, is an indication
that the applicant was
heard. As Chikopa J said in Illovo Sugar Company Ltd vs Phiri
Civil Appeal No. 60 of 2008,






… there
is no uniform way of hearing a matter or a party. One can be heard
orally. They can be heard through reports written or oral.
They can
be allowed to cross-examine witness or not. … What matters in our
view is whether or not the party to be heard was made
sufficiently
aware of the charge against him and was given a decent chance to put
across their side of the story.






In
conclusion we find that the respondent had a valid reason to
terminate the applicant’s employment. Further, the respondent
afforded
the applicant the opportunity to explain his side of the
story. In the circumstance we find the termination to be justifiable.
We
consequently dismiss the applicant’s claim.





In
short, in answer to the issue before this court in this trial, we
find that the applicant’s dismissal was not unfair. We, therefore,
dismiss the action.





Any
party dissatisfied with this decision has a right to appeal to the
High court within the next thirty days.





MADE
this day of ……………… August 2010











J.
Nriva


DEPUTY
CHAIRPERSON











D.
Namandwa


EMPLOYERS
PANELIST











E.
Mtenje


EMPLOYEES
PANELIST