Mwakaonga v Electricity Supply Corporation of Malawi (ESCOM) (IRC Matter No. 13 of 2013) [2018] MWIRC 8 (25 October 2018);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI       

MZUZU REGISTRY

I.R.C. MATTER NUMBER 13 OF 2013

 

BETWEEN

ELIAS  MWAKAONGA   .....................................................................APPLICANT AND

ELECTRICITY SUPPLY CORPOLATION OF MALAWI...............................RESPONDENT

 

CORAM: HIS HONOUR KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON

MISS CECILIA T. NYIRENDA, EMPLOYERS' PANELIST

MR. ALEXANDER LUNGU, EMPLOYEES' PANELIST

GEORGE J. KADZIPATIKE, APPLICANT'S COUNSEL

M RS. SALLLY MTAMBO, RESPONDENT'S COUNSEL

HEZRONE MHONE, OFFICIAL INTERPRETER

 

JUDGEMENT INTRODUCTION

The applicant commenced this action against the respondent claiming that he was unfairly dismissed and thus he is entitled to damages thereof.

THE APPLICANT'S CASE

Briefly, the applicant's evidence was that he was employed by ESCOM as a Security Guard around November, 2006. That on 9th January, 2012, he was on night shift at Katoto· Workshop of the respondent. In the morning of 1Oth January, 2012, it was discovered that fuel had been pumped from three vehicles. The applicant was suspended from duty on 17th January, 2012; after he was heard , he was dismissed. He went on to say that he had found the cars for Mr. Nthala and Mr. Mbewe already parked at the time he was taking over the station for night shift. He said that the drivers had not done any handovers of the fuel gauge to the applicant when they were leaving in the evening of the previous day and that they did not show the applicant how much fuel they had put in the vehicles and how much distance they had covered after refueling before leaving the said vehicles at the resp ond en t 's workshop.

RESPON DENT 'S CASE

The respondent called three witnesses and hereunder is a summary of evidence presented in court.

RWl : FRANCIS CHALERA

He said he was working as a Human Resource Officer based in the Northern Region and that the applicant was suspended from duty around 17th January, 2012 following the theft of diesel from tanks of three vehicles at Katoto Transport Workshop on 1Oth January,2012. The witness then tendered the Reports of the applicant, a Mr. F.M Gondwe, a Mr. Mogha and Mr. Mponda. The witness further tendered the Disciplinary Hearing Report, Termination Letter, Appeal Report, Appeal Verdict and the Discipline and Grievance Policy. The witness went on to say that the applicant was dismissed because about 175 litres of fuel for vehicles registration numbers 2 SC833, 2 SC935 and 2 SC 933, went missing whilst the applicant was on duty.

 
RW2: GEORGE MBEWE

This witness was one of the victims of the fuel loss in his car registration number 2 SC 935. The witness went on to say that he had parked his vehicle when the applicant was on night shift on 9th January, 2012 when he came to collect the vehicle.

 RW3: BISWARY BANDA

The witness works under the Security Department as a Corporal. He was one of the investigators in this applicant's case and he stated that the applicant was on night shift on 9th January, 2012 and he continued to dayshift on l0th January, 2012 implying that the applicant worked for two consecutive shifts. He said he confirmed of this fuel loss in the vehicles herein. During cross - examination he said that handovers between the driver and the security guard are not made in relation to fuel levels. He maintained that their investigations established that fuel was stolen at the Transport Workshop because of the evidence of the drivers coupled with the presence of fuel drops just below the tanks and dry cement powders spread on top of the fuel drops probably to conceal the spillage.

Whether the applicant's dismissal was unfair entitling him to the damages thereof.

THE APPLICABLE LAW

Section 58 of the Employment Act states that "A dismissal is unfair if it is not in conformity with section 57 or a constructive dismissal pursuant to section 40.

From both sections 58 and 57 (1) and (2), it is clear that if the employer provides the employee with both valid reasons for the termination of the contract of employment and an opportunity to be heard before the employment is brought to an end, what would otherwise have been unfair dismissal becomes a fair termination of the employment contract.

As it was stated in the case of FRIDAY GIBSON FOTE -V- LIMBE LEAF TOBACCO COMPANY LTD, I.R.C. Matter No. 156 of 2009, per J. N'riva ( as he then was) that:

For this claim to succeed there must be a dismissal. For a dismissal not be unfair the reason for dismissal has to be valid and the employee has to be accorded an opportunity to defend herself. Section 58 of the Employment Act is the authority for this proposition. If the opposite is the case, the dismissal is unfair. That is to say, unfair dismissal is where the reason for dismissal is not valid. The reason could be untrue or a mere sham.

Secondly, a dismissal is unfair if the employee was not accorded a chance to defend herself. In short, before a dismissal, the employer must hear the employee's side of the story with the aim of defending herself as practicably and reasonably possible. Fairness has two limbs and these are procedural

fairness (the right of the..employee to be heard) and substantive fairness, that is, the genuineness of the reason for dismissal.

Under section 61 (1) of the Employment Act, the burden of proving that the reason for the dismissal was valid lies on the employer. The subsection (2) reads as follows:

"In addition to proving that are employee was dismissed for reasons stated in section 57 (1) an employer shall be required to show that in all circumstances of the case he acted with justice and equity in dismissing the employee.

In the case of SHOPRITE TRADING LIMITED V. JOKINGS CEMENT & OTHERS, Civil

Appeal No. 20 of 2012 (H.C) (P.R) it was held by Kamwambe, J. that when section 61 (1 ) of the Employment Act is read with section 57, we may safely conclude that the Parliamentarian·was deliberately protecting the employee who is in a weaker bargaining position and that the employer no longer enjoys the liberty to dismiss an employee at his pleasure without consequences. The courts are implored to search for a reason, and for that matter, a valid reason for dismissal which will avoid punishment for paying compensation.

Again in the case of SINGINI -V- B.C.A. BESTOBELL MALAWI Matter Number IRC 274 of 2002, the c ou rt held that:

"Where there is an allegation of dismissal, the burden is on the employer to show that there was a valid reason for the dismissal and that the employer acted with fairness before dismissal. The employer must substantiate the reason in court. In the absence of such proof there is a conclusive presumption that the dismissal was unfair (Section 61 of the Employment Act)...."

THE LAW ON BURDEN AND STANDARD OF PROOF REQUISITE IN CIVIL CASES

At the very outset of the analysis of the case herein, this court would like to state that in any civil matter, ordinarily the burden of proof lies on a party who substantially asserts the affirmative of the issue, or put in other words, on a party who asserts the truth of the issue in dispute. And the party has to adduce sufficient evidence to raise a presumption that what is claimed is true.

See: COMMERCIAL BANK OF MALAWI-V- MHANGO Civil Appeal No. 8 of 2001

In KUMALAKWAANTHU T/A ACCURATE TILES AND BUILDING CENTRE -V- MANICA MALAWI LIMITED Appeal Number MSCA 57/2014 the court stated as follows:

Standard of proof for the matters in the IRC is the same as that which applies in all civil cases, a proof on balance of probabilities. The legal burden of proof for civil case is that the facts must carry reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the  tribunal can say: "We think is more probable than not" the burden is discharged, but, if the probabilities are equal, it is not. A well settled principle of ancient application is "ei incumbit probation qui dicot not qui negat." This essentially means that the burden of proof lies on the party alleging a fact of which correlative rule is that he who asserts a matter of fact must prove but he who denies it need not prove it. In contested actions, a party succeeds whose evidence establishes a  preponderance  of  probability  or  a  balance  of probabi lity in his favor·"

The balance of probability standard means that a court is satisfied an event occurred if the court considered that on the evidence, the occurrence of the event was more likely than not. See: REB (2008) UKHL

THE ANALYSIS OF THE EVIDENCE AND THE APPLICABLE LAW

The applicant alleged that there was no valid reason for his dismissal: that the dismissal was based on unfounded and baseless allegations. The applicant in his witness statement stresses a point that he was· only on the night shift of 9th January, 2012. However, this assertion is contrary to what has been established by the respondent's evidence. The respondent's evidence showed that the applicant was on the night shift of 9th January, 2012 and the three vehicles were packed at the Transport Workshop when he was on the night shift. Furthermore, the applicant continued with the day shift of lOth January, 2012. This is also as per the Disciplinary Hearing Report point 4.0, second paragraph 4.0 and Appeal Report paragraph 4.0.

The applicant's assertion that he made handovers in the morning of l 0th January 2012 with Mr. Chawanda is not supported by any evidence. To this end  this court finds that it is more probable and most likely than not that the applicant continued with the day shift on 10th January, 2012.

Now we come to the issue of the missing fuel. The applicant argues that he should be exonerated from the same. It is correct from the applicant's submission that there is no evidence of the amount of fuel that came with the three vehicles herein. The fuel gauges were not shown to the applicant in the evening of the 9th day, of January, 2012. No witness in this court has shown tangible evidence of fuel that was left in the custody of the applicant and as such it is disputable that the fuel went missing during the night. However, the evidence being proffered by the respondent is that during this material night it was raining and there was cement powder on the fuel tanks but though it was raining cement powder could still be seen as the fuel tanks are underneath. Again, they argue that if the fuel was sold before being parked at the workshop the drops of fuel/ spillage could not have been observed at the Transport Workshop premises.

Just to state before we go any further, that the applicant was not dismissed on grounds of stealing fuel but rather that fuel was stolen whilst the applicant was on duty which was negligence on his part.

This is as per the Termination of services letter and the Disciplinary Hearing Report for the case of the applicant.

On paragraph 10.0: PANEL OBSERVATION it is stated as follows:

"After going through the reports and interviews the Panel has the following observations:

  1. Fuel was stolen while Mwakaonga and Gondwe were on duty during night shift.
  2. There were some drops of fuel on the ground and dry cement but it was raining throughout that night.
  3. It was raining throughout the night which makes them difficult to see what was happening.

11.0 CONCLUSION

The panel concluded that fuel in three vehicles was stolen while Mwakaonga and Gondwe were on duty which was negligence on their part."

The applicant argued in his witness statement that he was not negligent during the night since he had been doing his usual patrols throughout the night even though it was raining heavily and by the time he had knocked off. He went on  to say that even assuming that there was enough evidence that the fuel had been stolen during the night, he could not have been held to have been negligent as he had been doing his usual patrols throughout the night and nothing suspicious was found during his handovers and also by its own finding, the committee observed that the rains during the night made them difficult to see what was happening. Negligence by its nature imported that one has acted below his expected standards when in fact he had acted as any prudent security guard and per his duties.

At this juncture we resort to the case of NKHWAZI -V- COMMERCIAL BANK OF MALAWI Civil Cause Number 233 of 1999 where the court in deciding whether there was unfair dismissal stated as follows:

"Although the employer had the right to terminate the contract of employment, under clause 24.1.3 and 24.3.1 and the letter of suspension, the exercise of that power was subject to the condition that the defendant should first be satisfied on a matter on which the plaintiff had to be heard. In other words, as the defendant purported to terminate the employment on the ground that the plaintiff had committed some wrong doing, the defendant needed to be satisfied that he was in fact guilty of the alleged offence before bringing the employment to an end."

It is our finding that in the instant case, the Disciplinary Committee's finding or observation number 3 is in fact incompatible with the conclusion on negligence as argued by the applicant.

So in this courts analysis as to whether the employer's reason for dismissing the applicant was justified or not, we proceed as follows:

It was stated in the case of MAHOWE -V- MALAWI HOUSING CORPOLATION Civil Cause Number 3687 of 2000 (HC) that:

"The Court usually examines the reason for termination of employment and try to find if the termination is justified. If the reason is not supported by the evidence the court may conclude that there was no justification for the plaintiff's dismissal."

Further, the law under section 61 (2) of the Employment Act provides that the employer must act with justice and equity in deciding to dismiss an employee. In JAWADU -V- MALAWI REVENUE AUTHOURITY MLLR 397 IRC, the court held that:

"In cases of dismissal, it is not just a matter of producing reasons and conducting a hearing in compliance with section 57 (1) and (2) of the Employment Act. A court will go further to find out if the termination was justified. If the reason is not supported by evidence, the court may conclude that there was no justification for dismissal.  The burden of substantiating reasons  for dismissal  is on    the employer. Where the employer fails to prove the reason on a balance of probabilities, there is a conclusive presumptions that the dismissal was unfair."

In the instant case, even assuming that there was evidence to show that the alleged theft of fuel happened when the applicant was on duty and during the night, his conduct could not have been treated as amounting to negligence and thus warranting his dismissal. After all the committee itself found that the condition at night made it difficult for the applicant and his colleague on duty to ably see whatever was happening as it was raining heavily.

Further, the fact that the drivers were not making any handovers with security guards on duty with regard to the amount of fuel that was remaining in their cars, makes it unfair to the applicant for the respondent to only rely on unsubstantiated evidence of the drivers that for example, they had left the fuel at quarter (1,1.,) tank.

Thus, according to the evidence that was before this court, no reasonable tribunal could have found the applicant guilty of negligence and dismiss him from employment.

Again, In the instant case, the applicant had never been warned or been summoned to answer any charge before with regard to discharge of his duties for the almost five years he had been with the respondent see: Disciplinary Hearing Report paragraph 12. 0 FACT ON FILE.

It was therefore not fair to the applicant for the respondent to terminate his employment contrary to the Disciplinary Committee's recommendation that he should just be demoted. See paragraph 13.0 of the Report on 'Recommendation.'

As Kamwambe, J. said in the case of  RON MANDA -V-  SUGAR CORPORATION  OF MALAWI Civil Cause Number 1761 of 2001 that:

"It is important to demonstrate justice and equity in dismissing the employee by careful analysis of all the circumstances of the case. This means the decision arrived at must bear in mind the circumstances. In other words, the circumstances must fit the ·decision so that one will not claim that the justice of the case was missing. One ought not to question the decision because it does not tally with all the circumstances of the case. This is why each case ought to be decided on its peculiar facts. Generalization is not the rule... Section 61 (2) of the Employment Act has a vital purpose to play. It is not there for nothing. It ought to be applied as it denotes fair labour practices. If fact it envisaged a situation where one is found guilty of misconduct for which he could be dismissed but may  not be dismissed due  to prevailing relevant circumstances which would make it unjust and inequitable to dismiss the employee. I would not be wrong to say that the section calls upon us to consider mitigating circumstances. Decision must be human by taking into consideration all the circumstances of the case.

It is not just enough to say an act of misconduct has been established such as in the case of MKANDAWIRE -V- CAPITAL OIL REFINING INDUSTRIES (1997) 1 MLR 448; and MEJA -V-  COLD STORAGE COMPANY LIMITED (1990) MLR 234 when

these cases were decided, section 61 (2} of the Act was not law then.

It has been said that it is an element of natural justice that the punishment must fit the offence. It is unfair to impose disciplinary action that is more excessive than is reasonable under the circumstances of the case. See MATIPWIRI -V­ SECURICOR (MW) LTD Matter Number IRC 131 of 2001.

Again it has been held that as a general rule, a court may not interfere with the employer's sanction. It is only in cases where the employee pleads that the employer did not act with justice and equity that a court may consider the sanction imposed and interfere with it where appropriate: R.S. SIKWESE, LABOUR LAW IN MALAWI, P. 97.

However, even under such circumstances, the court does not determine the

matter based on the evidence before the employer because that  would amount to interference, but rather it must determine the matter on the evidence  before  the  court.  See  the case of KACHINGWE &  OTHERS -V­ SOUTHERN BOTTLERS (MW) LTD Matter Number IRC 162 of 2008 where it has been held that the decision of the court as to fairness or unfairness of the employer's decision is not reached with reference to the evidential material  that  was before the employer at the time of its decision but on the basis of all evidential material before the court. To that extent the proceedings are a hearing denovo."

CONCLUSIONS AND FINDINGS

In our analysis as to whether the applicant was unfairly dismissed or not, we are of the considered view .that the applicant was unfairly dismissed.

With regard to all the circumstances of the case, the Disciplinary's Committee observations / findings and the conclusion it reached, there was nothing that established negligence, i.e. that the applicant acted below his expected standards as per his duties.

Again, even if we find that this was indeed so, we find the decision of the respondent's management to dismiss the applicant to be disproportionate and heavy handedness regard being had to all the circumstances of the case. The applicant served the respondent for five years without any warning. No any evidence has been laid of any allegation of misconduct by the applicant before this incident implying that ·the applicant had performed his duties satisfactorily well.

The respondent could surely have resorted to other measures of disciplinary action other than dismissal as per the Disciplinary Hearing Committee's recommendation. Section 56 of the Employment Act provides for alternative measures of dealing with employees who are in breach of conditions of their employment such as written warnings, suspension and demotion. To that extent, the action taken by the respondent to dismiss the applicant was unfair. The applicant is therefore entitled to damages for unfair dismissal.

RIGHT OF APPEAL

Subject to section 65 of the Labour Relations Act, any aggrieved party has a right to appeal to the High Court within 30 days from the date  below.

 

MADE at Mzuzu this 25th Day of October, 2018.

 

K.D U

DEPUTY CHAIRPERSON

 

C.T. NYIRENDA

EMPLO ERS' PANELIST

 

ALEXANDER LUNGU

EMPLOYEES' PANELIST