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FIRST MERCHANT BANK………………………..…..RESPONDENT

Applicant – Present (Partly presented by

Miss Juwayeyi of Counsel)

Respondent – Present (Represented by

Mr. R. Kasambala of Counsel)

Mrs. Mzumara – Official Interpreter

This matter has been brought by Davie Banda, the Applicant against his former employers First Merchant Bank, the Respondent. The Applicant in his Statement of Claim has raised a trade dispute of unlawful dismissal, defamation of character and he is also claiming for cost of this action. The Respondents have denied all these alleged trade dispute. They claim that the dismissal of the Applicant was lawful and that there was no defamation of his character.

The Applicant who is the only witness for his side joined the Respondent as a bank clerk on 6^th June 1999. He told the Court that he started working at the Lilongwe branch where he met Isaac Nkhoma also a bank clerk. Whilst in Lilongwe, the Applicant at one point lived in the same house with Isaac Nkhoma. They were joint tenants. As they were still in Lilongwe, the two separated each one living in his own house and in separate locations. The Applicant was at Chilinde whilst Isaac was at Area 23. After they separated, the Applicant said that the two could only meet at the work place. Later on the Respondent transferred Isaac Nkhoma to Mzuzu where they had opened a new branch. Whilst in Mzuzu, Isaac Nkhoma resigned from the Respondent. He came back to Lilongwe but shifted from Area 23 to a different location. The Applicant said that it took him time to know where Isaac was staying after resignation. He told the Court that one day, the Chief Security Manager asked him about the whereabouts of Isaac. He had no knowledge about his whereabouts. All he managed to find was a cell phone number for Isaac which he got from Dingani Makwakwa a fellow bank clerk who was a very close friend to Isaac. He said that the two had many things in common. They were both boozers and they often went out together to socialise. The Applicant said that Dingani had a cellular phone too and he got the number from his phone. The Applicant said that this was the only information that he could provide at that time.

After two weeks, the Chief Security Manager came back to him. He found him at the desk. Chief Security Manager enquired from him about the whereabouts of Isaac. At that time, the Applicant said that he had come across Isaac and had visited him at his new place of abode which was at Kaliyeka. He told the Chief Security Officer that he had now known where Isaac was staying and that he had information that he had shifted to Mponela. At that time, the Chief Information Manager was in the company of policemen. They took him to the Company lorry in order for him to lead the way to Mponela. It is the Applicant’s evidence that he did not specifically know the place where Isaac was at Mponela. When they arrived at Mponela, the police started searching in rest houses. Fortunately, they came across Isaac’s name as a guest at one of the guest lodges at Mponela. Unfortunately, he had checked out.

The Applicant said that a few days after the Mponela incident, he got a letter from head office Blantyre that he had to go for training in Blantyre. He was very excited with this news. The Respondents prepared training allowance for him and he was paid. As he was about to leave for Blantyre, he came to the Bank in order to check on personal overdraft from the bank for onward transfer to South Africa where he was pursuing private studies in Banking. As he was walking in the bank corridors at his place of work, he met the Chief Bank Manager Mr. Gopalan who roughly asked him where Isaac was. But he responded by telling him that they could not find him at Mponela. The Chief Bank Manager whilst walking in the corridors told him that he could not go to Blantyre for the course/training because the training had been cancelled. The Applicant said that he thought that Mr. Gopalan was merely harsh to him because of Isaac’s issue.

In order to confirm about the cancellation of the course in Blantyre, the Applicant said that he phone the training officer in Blantyre who told him that the training was still on and that he was supposed to come. The Applicant said that he thus decided to leave for training. But before he walked out of the bank premises, Mr. Phiri one of the bank officials called him and told him that he should not leave for Blantyre for training. The Applicant said that he wanted to know from Mr. Phiri as to what was happening and which was which. But Mr. Phiri merely laughed. The Applicant said that he thought that things were not serious and since he got the invitation through a letter, he thought that if indeed he was not supposed to go then another letter would have rescinded the contents of the first letter. The Applicant thus travelled to Blantyre and just to be returned back. He was then asked to refund the cash but he said that he had spent it on some other necessities since he was promised by his sister in Blantyre that he would be accommodated and food at her place of residence. At the end of the day, the Applicant was asked to make explanations on two charges which were charged in separate letters which are marked as App Ex 1 and 2. He responded to those charges and his replies are attached to Ex 1 and 2. The first charge was of misconduct and the second one was of insubordination.

The Applicant said that he wondered why the Respondents were saddling him with the blame on Isaac’s whereabouts. He said that he was not aware before the Mponela trip that Isaac had committed fraud in the bank. Thus there was no reason for him to be on the look out for Isaac. The Applicant further said that at no time did the bank inform its officers as to what they should do once they came across information about Isaac’s whereabouts. All he knows is that when the Chief Security Manager had first approached him, he managed to give the best information about Isaac which was his cell number because at that time, he did not know where Isaac was after his resignation from the bank in Mzuzu. The Applicant also said that he was not given a hearing after the correspondence herein. On the training course in Blantyre, the Applicant said that he was not properly informed by the Chief Bank Manager. All he construed from his behaviour was that he was just annoyed about the issue of Isaac. Thus when he phoned the training officer and spoke in person to the Operations Manager Mr. Mwawa, he was told to go for the course.

The Respondents called three witnesses. The first one was I Sharma Surtee who is the Human Resources and Administration Manager at the head office in Blantyre. Most of things which she said in relation to the Applicant were in a form of what she heard had transpired in Lilongwe thus the majority of her evidence would qualify as hearsay. The direct things that she got involved in was to charge the Applicant and his friend M’nesa and she also advised the Chief Manager in Lilongwe to inform the Applicant not to come and attend the training course in Blantyre. When the Applicant still went to Blantyre for the course, she called him to her office and ordered him to return back to Lilongwe. She thus further charged him of insubordination. Later o disciplinary action in the form of dismissal was taken on the Applicant.

The next witness was Mr. Robert Phiri. He was the administration supervisor. His evidence was that he is the one who was asked to range for allowance for the Applicant’s training in Blantyre. He accordingly paid the Applicant. A day before the departure for Blantyre, he was advised by authorities to tell the Applicant not to leave for Blantyre. He met the Applicant at the bank at around 11.a.m. He accordingly informed him. But the Applicant was in a very uncompromising condition. He said that he would still go to Blantyre. Thus the witness said that he reported the matter to the authorities. Mr. Phiri said that he used to give the Applicant fatherly advice because he was a homeboy. He even advised him that it was in the interest of the bank for him to disclose the whereabouts of Isaac whom the Applicant knew that he was involved in a computer fraud.

The last witness was Mr. Elias Chinunga. He is a Security Officer at the Respondents head office in Blantyre. His evidence is that after news of fraud was given to him at the Lilongwe branch, he came to cause investigations. This he said was in the month of June 2001. On arrival in Lilongwe he was briefed that about three bank clerks were close associates of Isaac Nkhoma the suspect. One of these bank clerks was the Applicant. He interviewed him about the whereabouts of Isaac but the Applicant expressed ignorance. The only help he gave was the cell number, which he said was for Isaac. He later on interviewed Mr. Makwakwa another close friend of Isaac. This employee too did not know the exact whereabouts of Isaac. All he offered was a cell number, which he literally scanned from his own cell phone. The witness said that he tried to call Isaac on the number given and he responded. He invited him to meet him but he never turned up. As he was in Blantyre, he came across the whereabouts of Isaac’s father. He interviewed the father who offered to assist to find his son. Thus in July, in the company of the father, they both came to Lilongwe. The father took him in the company of the police to Isaac’s house. On arrival at the house, they found a brother to Isaac. Upon enquiry, the brother told them that Isaac had just left in the company of his girlfriend Dokasi. The police phoned him on his cell phone. The got him. They even told him that they were at his house in company of his father. But Isaac refused to come. They then left the father there in case he would come at night. The following day, the team came back to the house but only to find that Isaac had spent the night out. It is the evidence of Mr. Chinunga that he then asked Isaac’s brother if anybody comes there. He was told that Davie Banda and M’nesa had been at the house and that Davie Band had just been there the previous day. The witness left for the bank and confronted Davie who confessed that he had indeed been there. It was Davie (Applicant) who informed them that when he last visited him, he heard that he would be going to Mponela. Thus in the company of the police, they all went to Mponela; although they missed Isaac.

The law in relation to termination of employment is as put in Section 57 of the Employment Act, which provides as follows:-

"(1) The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.

(2) The employment of a worker shall not be terminated for reasons connected with his capacity or conduct before the employee is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity."

ANALYSIS

There are two grounds given for the termination of the Applicant’s services. The first is of withholding vital information, which is an act of dishonesty as per Schedule 19.4.2 bullet 2 of the Bank’s Terms and Conditions of Service. The second one is of gross misconduct of insubordination contrary to the Bank’s Terms and Conditions of Service Schedule 19.4.2 Bullet 1. Schedule 19.4.2 bullets 1 and 2 says:-

"A member of staff may be summarily dismissed from the service of the bank for any of the following offences which Management considers to be serious misconduct:

· Insubordination i.e. willful disobedience to orders or directions given by the Bank.

· Committing an act of dishonesty or fraud."

The Court will therefore look at the evidence on record and make a finding as to whether the Applicant committed any of the said serious misconduct to warrant a dismissal. The Court will also look at the procedure that was followed before the employment of the Applicant was terminated.

(1) DISHONESTY OR FRAUD

Under this head, there is no way the Applicant could have been held responsible for fraud because there is no fraud that he committed at the bank. Thus the only consideration will be under the term "dishonesty". The Respondent’s contention is that the Applicant did not tell the bank the truth. He did not disclose the truth by saying that he did not know where Isaac Nkhoma was. The Court has looked at the sequence of events. In June, the Chief Security Officer approached the Applicant at the bank in Lilongwe. That is when the Applicant was first asked about Isaac Nkhoma. The Applicant said he did not know about his whereabouts. AL he could provide was his cell number after enquiring from his colleague Mr. Makwakwa. There is no cogent evidence from the Chief Security Officer as to why he was on the look out for Isaac Nkhoma. The Respondents did not explain in details whether they had officially informed bank employees about the wrong Isaac Nkhoma had one, why they were looking for him and what each and every bank employee should do in the event of coming across any information about the whereabouts of Isaac Nkhoma. Thus it would be dangerous here to work on assumptions.

Then there is the incident of July. The Chief Security Officer came across the information about the whereabouts of Isaac Nkhoma through Isaac’s father. When they went at the house at Kaliyeka, Isaac’s brother that some bank employees such as M’nesa and the Applicant had been at the house, and that the Applicant had been there the previous day informed him. This is the information that infuriated the Chief Investigator. He dashed to confront the Applicant at the bank. The Applicant confessed that he had indeed been there and that he had known about the whereabouts of Isaac two weeks after the visit of the Chief Investigator in June. The Applicant said that since he was not given any standing instructions to report about the whereabouts of Isaac, he just kept it to himself. He further said that when he visited Isaac the previous day, Isaac mentioned that he would be going to Mponela.

The Court has looked at this piece of evidence. It is not clear whether Isaac’s brother had told the Chief Investigator that the Applicant had visited his brother even in June when the Chief Investigator had come to Lilongwe. It would appear that there was a sweeping conclusion by the Chief Investigator that because the Applicant had been at the house the previous day, therefore he should have known the whereabouts of Isaac before i.e. even by June. The Court found this type of conclusion to be dangerous. It becomes more dangerous in the event here that Isaac’s brother was interviewed on his own. The bank did not even take the trouble to bring the brother for confrontation with the Applicant so that the real truth could have been known. The Chief Investigations Officer was ably accompanied by the police. They should have taken the brother to Isaac to the bank so that the two should face each other in order to ascertain the period when the Applicant had been at the house. In his reply to the charge of dishonesty, the Applicant maintained that he only knew about Isaac’s whereabouts after the meeting of June at the bank with the Chief Investigation Officer. There is no evidence on record that has controverted this evidence from the Applicant.

The Court therefore found that there was no real foundation for the bank to have held that the Applicant was dishonest by not disclosing the whereabouts of Isaac. Much as the Respondent had given the Applicant an opportunity to be heard but the reason for concluding dishonesty on the part of the Applicant does not convince this Court to be a valid one.

The undisputed evidence here is that the Applicant was formally written by head office to attend a course in Blantyre. On the day he was about to leave for Blantyre, he met the Chief Manager in the bank corridors. What transpired between the two in the corridor has not been challenged. The Chief Manager as per the unchallenged evidence of the Applicant asked him about the whereabouts of Isaac. He told him that they could not trace him at Mponela. The Applicant said that the Chief Manager looked annoyed. He said that he heard the Chief Manager tell him that he would not proceed for the course in Blantyre because it has been postponed. That is when the Applicant said that he phoned Blantyre and he was assured that the course was on. He said that he even went to the Operations Manager Mr. Mwawa (now deceased) to find out about the situation. He was informed that he had no specific instructions about the postponement of the course. As I have already said, the Chief Manager did not come to controvert the circumstances under which the Applicant was first informed about his non-going to the course. It appears that by that time, the Chief Manager had become very emotional about Isaac’s issue and that the authorities at this bank had foregone conclusions that the Applicant was guilty of dishonesty. This can be inferred from the way the Chief Manager reacted. The Court looked at the approach that was made. The Chief Manager should certainly have summoned the Applicant to his office, where he should have explained the situation in an amicable manner. But meeting an employee in the corridors and shouting to give instructions can lead to misinterpretation.

There is of course the evidence of Mr. Phiri the Administration Supervisor. He told the Court that he personally spoke to Davie that he should not leave for Blantyre due to instructions that had come from the authorities.

The Applicant remained adamant and he asked him why that was so. But Mr. Phiri had no reason to give. According to the Applicant, Mr. Phiri laughed. It was conceded, in cross-examination by Mr. Phiri, that he might indeed have laughed.

The Court found that the whole approach vague. The Respondents had written the Applicant about the course which he had to pursue. Thus they had given the Applicant legitimate expectations. If the Respondents had a reason to rescind their offer, they should have given the Applicant reasons. In this case, the Respondents did contribute to the confusion. The Chief Manager told the Applicant that the course had been cancelled. The Applicant confirmed that it was not. Then Mr. Phiri told the Applicant not to go. When the Applicant wanted to know the reasons, Mr. Phiri merely laughed. There was no seriousness in Management. The Applicant had legitimate expectations in this course. Thus the Respondents were duty bound to provide reasons for canceling his going. That they did not. The Applicant’s going to Blantyre may be looked at as insubordination when one only looks at one side of the coin. But when one looks at both sides of the coin, one finds that the Respondents did heavily contribute to the confusion that arose. This Court, which stresses a lot on fairness, does not see justification in saddling the Applicant with the blame of insubordination.

FINDINGS

The Court finds that in relation to dishonesty, the reason given was not valid. The Respondents merely jumped to quick conclusions.

In as far as insubordination is concerned, the Court found that the Respondents did not pursue a fair approach. They heavily contributed to the situation that led the Applicant behave in a manner he did.

The Court therefore finds that although the Applicant might have behaved in a manner which one would call insubordination, but this was partly contributed by the approach the Respondents had taken towards him. Both parties are to blame. They do share the responsibility. There was thus no hundred percent substantive justice on the part of the Respondents. The Court gives them credit for having afforded the Applicant an opportunity to be heard before they did condemn him on the issue of insubordination. But procedural fairness on its own is not enough. There should be both substantive justice (fairness) and procedural justice (fairness) in order for a dismissal or termination to be called fair. The Court has thus found that this termination on the ground of insubordination was not fair.

REMEDY

In as far as the termination herein was unfair, the Court has addressed its mind towards Section 63 of the Employment Act, which deals with remedies for unfair dismissal. I find that the most appropriate remedy here is that of compensation under Section 64 (4). Compensation under this Section is particularly governed by subsection (5). I do order that since the Applicant had worked for less than 5 years and in particular for only 2 full years, I do award him two weeks pay for each year of service.

With regard to his claim of defamation, this Court awards him nothing because there is no basis for defamation of character here. Even if there was any basis, this Court would have advised the Applicant to pursue that claim in the Magistrate Courts of High Court.

MADE this ------------- day of --------------- 2002 at Lilongwe Industrial Relations Court.