PRINCIPAL REGISTRY
MATTER NO. IRC. 18 OF 2000
BETWEEN:
-and-
CORAM: R. Zibelu Banda (Ms), Deputy Chairperson
Nindi Employer’s Panelist
Applicant
Macheso for Respondent –
Human Resource Manager
Ngalauka – Court Clerk
Dismissal- Summary dismissal-Reasons for dismissal-Previous warnings- Procedure for dismissal- Investigation- Right to be heard--Disciplinary hearing-Appeal- Severance allowance.
The matter came for determination of the manner of
termination of applicant’s employment contract with the respondent. The
applicant was employed as a messenger in April, 1989. His employment was
terminated on
The applicant contended that the dismissal was
unfair basing on the following grounds: His supervisor reported the shortage to
senior management before discussing the issue with him; another
fuel shortage was wrongly attributed to him; he was charged with a morning
shift attendant while the shortages occurred during different times; management
did not call as a witness a metre reader during
the applicant’s shift; and he was
not given an opportunity to appeal against the decision to dismiss him
summarily.
The respondent contended that they were entitled to
summarily dismiss the applicant because he incurred a shortage of 129 litres
fuel and after the shortage was known to him he deceitfully attributed the fuel
to a recovery bus. At a disciplinary hearing he admitted that in fact he had not
allocated any fuel to the recovery bus. He however could not explain how the
shortage had come about. This was gross negligent of duties which occasioned loss to company
property, and he was in breach of trust
by attempting to deceive the company.
It is clear from the facts that the applicant was
dismissed summarily for gross
negligence and deception. When shortage was discovered he was
called before a disciplinary hearing. Present at the hearing were union
members, the applicant and management from the respondent’s company. He was asked to explain his side of the story, which he did.
He did not deny the allegations. He actually admitted knowledge of the shortage
and his attempt to cover up the shortage through deceit.
The applicant’s grounds for challenging the
dismissal have no legal basis. The court observed that since the matter was
serious it was proper for the applicant’s supervisor to report it directly to
management. There was no anomaly in this procedure. The facts were clear that
the case of the applicant was dealt with separately from the other case, therefore the applicant can not claim that he was
charged with another person. The applicant admitted a shortage of 129 litres of
fuel and therefore the shortage of the other employee could not have been
attributed to him. The other employee’s shortage was 100 litres. If this
shortage had been attributed to applicant the allegation would have been for
229 litres and not 129 litres. Further, there was no need for the respondent to
bring in a witness who they did not require, like the metre reader. Finally,
the applicant alleged that he was not given an opportunity to appeal against
the dismissal.
In the dismissal letter he was advised to appeal against the decision if he was aggrieved. He tried to exercise this right, but he never had the opportunity to sit before an appeal’s committee. It was the reasoning of respondent that when the applicant’s case was brought before the Chief Executive to consider his appeal. The Chief Executive was of the view that the matter did not require further hearing by way of appeal. The facts were clear and the applicant had no excuse for what he had done. He had admitted the allegation including that he had tried to deceive the company. The matter was straight-forward and clear, the appellate body decided against hearing the applicant’s appeal.
This
cause of action arose before the Employment Act 2000. Therefore the provisions
of the old Act of 1968 will be used where applicable, the Constitution, common
law and good industrial practice.
The law and good industrial practice demand that an
employer must give reasons before dismissing his employee. This requirement
allows the applicant to defend himself against the allegation or reason for the
dismissal. Section 43 of the Constitution states that before
administrative action is taken, reasons must be given. Interpretation of
this provision was ably provided by the Malawi Supreme Court of Appeal in Dr
Chawani v. The Attorney General ( MSCA Civil
Appeal No. 18 of 2000 (unreported) )
Further, Articles 4 and 7 of Convention No. I58 of International
Labour Organisation, Concerning
Termination of Employment at the Initiative of the Employer provide that
reasons must be given for dismissal of an employee and s/he must be afforded an
opportunity to be heard. In Earl v. Slater & Wheeler Ltd
[1973]1 WLR 51, the
court held that the burden is on the employer to show the reasons for
dismissal.
In the instant case, the respondent brought
allegations of fuel shortage to the applicant before he was dismissed. An
investigation was carried out, and it turned out that the applicant was on duty
at the time the fuel shortage was occasioned but he failed to explain the
shortage. Instead he informed his supervisor that the fuel had been allocated
to a recovery bus. Upon investigation it was discovered that the fuel had not
been allocated to the recovery bus. In explaining his side the applicant
informed his superiors that indeed he had not allocated any fuel to the
recovery bus. He lied in order to cover up the loss because it was difficult to
ascertain whether the recovery bus had been fueled since it did not have a way
bill.
The facts are clear that the applicant was heard by
an impartial disciplinary committee, which, comprised members of employees’
organization among other members. This procedure complied with the law and good industrial practice. (See Prindella v.
Limbe Leaf Tobacco Company Limited, IRC No. 49 of 2002 (unreported).)
The offence was a serious misconduct because it involved a combination of gross negligence and breach of trust. Therefore, the court unanimously found that the respondent was entitled to dismiss the applicant summarily. Although an appeal procedure forms part of the whole process of dismissal, the respondent could not be faulted for failing to hear the applicant on appeal. The matter was serious and the applicant himself had admitted the allegations, which had been proved through a thorough investigation. The purpose of an appeal is to question the procedure or facts relied on by the trial tribunal in reaching a decision. The applicant did not show in court what matters he was trying to appeal against other than the grounds he brought into court, which, the court unanimously found were unfounded and without any legal basis.
The court unanimously found that the respondent had shown the reasons for dismissing the applicant. The court found that these reasons were valid and combined with previous warnings given to the applicant for misconduct constituted serious misconduct warranting summary dismissal. In determining the validity of grounds for dismissal, a court can consider previous warnings given to the employee although the warnings were for unrelated misconduct.
“Consultation and warnings are relevant in a number of different cases including dismissals for misconduct. An employer is entitled, moreover, to have regard in a misconduct case to the fact that the employee has received a previous warning in deciding whether or not to dismiss. This is so even where, that previous warning related to behaviour which, was different from that which is the potential basis for dismissal.” (See Edwards M. ed. Dismissal Law; A Practical Guide For Management, 1991, Kogan Page, London at 126 to 127.)
The applicant is entitled to only those benefits,
which he was entitled to under his contract of employment. In this regard,
there was proof that he received his pension contributions and salary up to the
day of his dismissal.
The applicant is not entitled to severance allowance
nor is he entitled to notice pay because he was dismissed summarily. Order 5 ©
of the Wages and Conditions of Employment (Severance Pay) Order made under
section 5 of the Regulation of Minimum Wages and Conditions of Employment Act
stipulates that an employee shall not be entitled to severance pay where s/ he
is dismissed summarily. (See Mussa v Securicor Malawi Limited. IRC
No. 2 of 2000 (unreported))
Pronounced in open court this …. day
of……………….. 2003 at LIMBE.
R. Zibelu Banda Ms.
J. Ching’oma (Ms.)
Nindi