and

DIMON (MALAWI) LIMITED…………………..…….RESPONDENT

CORAM: 

HON. M.C.C. MKANDAWIRE, CHAIRMAN

Applicant – Present

Respondent – Absent

Mrs. Namponya/Mrs Kalirani – Official Interpreter

J U D G M E N T

Matters in Issue: Unfair termination of employment

The Applicant Bernard Richard Ngoma claims against the Respondent Dimon (Malawi) Limited that the Respondent unfairly terminated his employment. He is thus seeking the relief of re-instatement.

The Respondent did not turn up for hearing in spite of the notice of hearing having been personally served on them. There were no reasons for such a failure. The Court therefore ordered that this matter be heard in their absence.

The Applicant told the Court that he was employed by the Respondent as a warehouse superintendent on the 13^th of April 1999. He was based at Kanengo in the City of Lilongwe. Three months after employment, he was sent to Zimbabwe for a computer course since the Respondent were in the process of computerizing the warehouse department where he was the in-charge. In the year 2000, his counterparts from Zimbabwe came to Malawi to make a follow up on what the Respondent were putting in place in view of the computerisation process in the warehouse department. These Zimbabwean delegates were two one female and the other male. The female visitor departed for Zimbabwe earlier leaving the male one behind. A day before departure, the male visitor followed him at his house at Area 25 together with Mr. Mkandawire the Leaf Manager so that he the Applicant should take him around the City of Lilongwe. They gallivanted from area 18 to Lilongwe Hotel where they had fun, drinking and dancing. After midnight, they both left for Las Vegas in Area 47 where they continued the fun. At Las Vegas, they found a disco playing. They were there up to around 4:00 a.m. when they decided to leave for the guesthouse where the visitor was lodging. This guesthouse belongs to the Respondent. It is the evidence of the Applicant that he personally escorted the visitor to the guesthouse so that he sees to it that he was safe. They went there by taxi and according to his memory, time was between 4:00 a.m.-5 a.m. After escorting him there, he proceeded to his house in order to change clothes and leave for work.

The Applicant said that some days after this visitor had left, he was summoned by his boss who informed him that the Managing Director had received information that he and the Zimbabwean visitor had spent a night at the guesthouse in the company of some women. The Applicant said that he explained how they had travelled and that he merely went there to escort his friend. He was not believed. Then on a certain Friday which was 7^th of September, his boss called him and informed him that the directors would be meeting to decide on his fate and that he would later on communicate to him the outcome. His boss got the keys for the office and as such, the Applicant said that he had to be at home waiting for the decision. He was however surprised that during the weekend some of his workmates came enquiring about the news which was on the e-mail that he had resigned. This really puzzled him because he had not resigned but was awaiting the Director’s verdict. The following week on a Tuesday, his boss wrote a letter on his behalf that the he had resigned. The Applicant said that he was extremely amazed about this letter which he tendered as App Ex.2. The Respondent also paid him what they called his terminal dues. He tendered the voucher in support of this payment. It is App. Ex.3.

Form the letter which his boss wrote, the Applicant said that he was surprised that the boss could write a letter of resignation on his behalf. He again said that if he had resigned, the boss could have been accepting his resignation. The Applicant therefore said that the Respondent terminated his employment without any justification.

Before I analyse the facts (evidence) let me point it out on the onset that the Respondent had entered a defence to the claim. In their defence which was filed with this Court, the Respondent said that they denied the claim made by the Applicant. All they knew was that the Applicant had indicated his intention to resign to his Manager. The Respondent attached an explanatory note to their defence. They further disclosed in that statement that the Applicant had spent a night at the company guesthouse together with the visitor from Zimbabwe and that the two were in the company of girl friends. They further disclosed that upon being confronted by Management, the Applicant denied but a report from the guesthouse attendant indicated the contrary. They attached a report from the attendant. It was therefore found necessary that he should humbly resign in order to maintain his reputation and the Applicant verbally accepted. But he did not do that. The Respondent therefore denies the claim that the Applicant is making.

This case looks very classical. Classical in the sense that the Respondent did not terminate the services of the Applicant in the normal understanding of termination. What the Respondent did was to write a letter of resignation on behalf of the Applicant one therefore wonders where it happens here on planet earth that an employer has to write a resignation letter on behalf of its employee.

From the totality of the evidence which went unchallenged, cause for the disagreement between the Applicant and Respondent was the alleged sleeping at the guesthouse with girl friends or woman friends of the Zimbabwean visitor and the Applicant. The approach which the Respondent however took was rather crude. The Respondent seem to have been over influenced by the report of the guesthouse keeper. I have read that report written in vernacular (Chichewa) attached to the Respondent’s defence. The report is rather vague and invites more questions than answers. It was therefore not fair that the Respondent did not bring the two parties together that is the Applicant and the guesthouse keeper for a direct confrontation. A note such as the one attached to the Statement here which is not explanatory cannot be a basis for decision by Management. Taking the matter further from this point, the Respondent did not approach the Applicant’s matter with maturity. He was casually asked about the guesthouse incident. That certainly was not a disciplinary charge. An employer is required to bring up charges in very certain terms so that the employee should knowe again said that if he had resigned, the boss could have He 

what rules or regulations he/she has breached.

There is evidence on record from the Applicant which evidence is uncontroverted that he the Applicant was told to surrender keys for the office and wait for Management’s decision whilst at home. Amazingly, the same Respondent claims that the Applicant had absconded. This, the Court found to be comical. The Respondent certainly knows where the Applicant was. He was at his home because they are the ones who advised him to wait there for their decision; which decision came but in a very crude fashion. The Respondent resigned on behalf of the Applicant and the letter of resignation is addressed to "WHOM IT MAY CONCERN". The conduct of the Respondent is indeed very crude and uncivilized. They deal with the rights of the Applicant as if he was a mere member of a social club and not employee.

This Court found this case to be rather strange and in a class of its own. Strange in the sense that the Applicant’s services were not at all terminated by the Respondent. All they did was that they had just resigned on his behalf. In labour relations, there shall never be a situation whereby an employer shall resign on behalf of an employee. It can only be an employee who may opt to resign.

The Court also found that the Respondent made very huge fundamental breaches on the Labour Rights of the Applicant. They did not precisely charge him with any offence or wrong that he had committed at his place of work. If going to the guesthouse with women friends was a breach of company rules and warranting disciplinary action, why did they not proffer charges against him? That is assuming the Applicant indeed went there with women which he heavily denies. At the end of the day, this Court found that the Applicant should be given his job back with immediate effect. He never absconded, he never resigned but all that happened was that the Respondent who I do describe as employers who have no respect for labour rights of the employee treated him as if he was a mere member of a social club and not an employee. This type of approach cannot be accepted by this Court.

The Applicant would like to have his job back. Indeed, he deserves his job. The Court therefore orders that he be re-instated to his job.

DELIVERED this --------------- day of May 2002 at Mzuzu Industrial Relations Court.

M.C.C. Mkandawire