Mbewe and Ors v Pharmanova Limited (MATTER NO. IRC PR) (NULL) [2010] MWIRC 9 (01 August 2010);

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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