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HIS HONOUR, M.C.C. MKANDAWIRE CHAIRMAN

Mr Nindi – employers representative

Mr B. Manda – employees representative

Applicant – present/unrepresented

Respondent – present/unrepresented

Mr W.Kumwenda – Official Interpreter

J U D G M E N T

The applicant in this case is Mrs Lilian Luhanga and the respondent is Gestetner Limited. The applicant has sued the respondent alleging that the respondent wrongfully and unlawfully dismissed her. In her applicants’ statement, she is asking this Court to reinstate her or to be awarded damages. The applicant sued the respondent on the 28^th of December, 1999 through the applicant’s statement of claim which was officially acknowledged on the 18^th of January, 2000. The respondent did respond through the respondent’s statement of claim dated the 27^th of January, 2000. In their response, the respondents averred that the applicant was dismissed for abscondment, dishonest, refusal to obey legitimate orders coupled by the circumstances surrounding the commission of gross misconduct on 6^th October 1999.

On the 18^th of February, 2000 both parties appeared before the Registrar of the Industrial Relations Court at the High Court Mzuzu for a pre-hearing conference. The purpose of this pre-hearing conference is for the parties to give a birds eye view and where possible, to narrow down the arguments. In some instances, these pre-hearing conferences have acted as platforms for mediation and conciliation. This particular case proved to have been a difficult one because after the pre-hearing conference, there were still so many issues unresolved and the case was therefore set down for full hearing on the 2^nd of June 2000. On this appointed day, the court heard both sides of the case and reserved its judgment for today.

It is therefore pertinent at this point in time to refer to the evidence as it came. But before we do that, let us point it at the outset that this is a civil case. In all civil cases, the burden of proof is on he/she who alleges to establish his/her case on a balance of probability. In cases where the applicant alleges wrongful or unlawful dismissal, the burden is on the respondent to prove to the court that the dismissal was not wrongful or unlawful.

We should now delve into the facts of the case. The applicant Lilian Luhanga was employed by the respondent as a copy typist in 1981. At that time, she was based at the respondent’s offices in Blantyre. After a few months, she was transferred to the Lilongwe office. In 1992, the applicant was transferred to Mzuzu where she was working as stores lady in the stores department. She worked in the stores department up to late 1994 then handed over to Mr Botomani. In 1995, she was promoted as an administrator and the stores department came back to her. Between 1995 and 1999, she was combining both administration and stores.

We have deliberately narrated the career progression of the applicant in order to show that management had confidence in her; or else, she would not have excelled up to a supervisory position.

The applicant told this Court that on the 5^th of November 1999 she issued a cash sale to Sugic Agencies who had come to purchase a ream of photocopying paper. It is her evidence that she forgot to put a carbon paper and as such the duplicate copy did not reflect anything. The cash sale was for K550:00. When she discovered the mistake late in the afternoon, she wrote another cash sale for K2.40 whilst awaiting to raise another stock cash sale. All this she said happened on a Friday. The following Monday she said that she forgot to rectify the mistake. On the 14^th of October, 1999, the applicant said that she went to Zimbabwe to see her sick father. She came back on the 27^th of October. Two days later, her father died and she had to go back to Zimbabwe. She came back on the 11^th of November, 1999. On the 16^th of November, 1999 her boss Mr Munthali asked her about the cash sale and requested her to explain in writing which she did through a letter which is PexI. It is pertinent to reproduce the contents of this letter which read as follows:-

"Dear Sir,

On the 19^th of November, 1999 the Personnel Manager, from the Blantyre Office came to Mzuzu on the same issue. The applicant said that she explained to him as she had done to Mr Munthali.

On the 1^st of December, 1999, there was a stock taking at the office and after the stock taking, her boss handed her a letter from Head Office in which she was being asked to resign.

The contents of this letter are to the effect that the applicant had not put a carbon copy when she sold a ream of paper to Sugic Agencies at K550:00. Later on, the applicant had issued a fresh receipt of K2.40 which was wrong information. The net result was that this amounted to gross misconduct which Management was not happy with and that such a misconduct warranted an instant dismissal. But it was the opinion of Management that the applicant be asked to resign with immediate effect. This letter is tendered as Pex2. The applicant told the Court that the following day when she reported at the office, she got a telephone call from the Personnel Manager in Blantyre who informed her to hand-over everything at the office. The hand-over notes are tendered as Pex3 dated the 2^nd of December, 1999.

After handing over everything the applicant said that she went to bid farewell her boss Mr Munthali who later on told her that the General Manager was very upset and that this would be treated as a police case. After that discussion, she went home.

On the 6^th of December, 1999, the applicant said that she phoned the Financial Controller requesting him if her case could be reviewed by their office. The Financial Controller informed her to put it in writing which she did on the 8^th of December, 1999 through a letter tendered as Pex4. In this letter, the applicant was mitigating with the respondent that she had been in the service with them for 18 years and that prior to this incident, she had not received any warning in any way whatsoever. The applicant further mitigated that to error is human and she was of the view that she had received a very severe punishment taking into account all the circumstances of the case. The applicant finally requested the respondent to revisit their stand on the matter. This letter was addressed to the General Manager but with copies to the Financial Controller, Personnel Manager and the Operations Manager.

On the 10^th of December, 1999, Mr Munthali wrote a Memo to the General Manager that the applicant was not reporting for work. The Memo was entitled "Abscondment from Work". This Memo is Pex5. The contents of the Memo read as follows:

"Mrs Lilian Luhanga has not been reporting for duties since 6^th of December, 1999 and I have no report about her abscondment".

On the 17^th of December, 1999, the applicant got a letter of dismissal which is Pex6. This letter is dated the 14^th of December, 1999. It would appear that the applicant used to date letters whenever she got letters from her employers. Thus the Memo was received by her on 16^th December and the letter of dismissal was received on the 17^th of December. We shall be commenting on these letters later on in our judgment.

The respondents were represented by Mr Felix Munthali who is the Operations Manager based in Mzuzu. Mr Munthali told the Court that he has been with Gestetner since 1975 but has known the applicant since 1981 when he employed her. Mr Munthali further told this Court that he worked with the applicant in Lilongwe since 1987 and he is the one who facilitated her transfer to Mzuzu following her husband. Mr Munthali further said that he is the one who also facilitated that she becomes administrator in Mzuzu. In 1998, he joined her in Mzuzu as Operations Manager. It is his evidence that through out his stay with her in Mzuzu there have been lots of rumours about the applicant but he does not work on these rumours.

Mr Munthali told the Court that on the 4^th of October, 1999, Miss Mwahimba a shop attendant showed her a ream of paper which was hidden in the drawer where the applicant used to sit. At that time, the applicant was at the bank. Later on, the ream was removed and sold to Sugic Agencies. The stock sheets and all the bank documents balanced but upon proper scrutiny, it was found that the applicant could disguise figures in such a way that it was difficult to discover. She could sell reams and issue a proper original. But on the duplicate, she could record as if a customer had come to photocopy things. Miss Mwahimba informed him that this had been happening on several occasions. Mr Munthali said that when the applicant came from Zimbabwe, she was confronted to produce proper receipts for the paper sold to Sugic Agencies. Later on she confessed that she had made a mistake although the cash was there. The matter was referred to Management in Blantyre and later on Management took steps as described by the applicant. The applicant was asked to resign after that, she was requested to hand-over. The applicant later on came to bid farewell and Mr Munthali said that this could have been a police case. The following week she did not report for duties and Mr Munthali said that he reported the matter to Management. The following week, Management dismissed her.

Miss Mwahimba was witness number two for the respondent. She joined Gestetner at Mzuzu office in 1998 and has worked with the applicant from 1998 to 1999. This witness said a lot of damaging things against the applicant. She narrated the alleged fraud that the applicant was doing at this office. It would appear that this lady knew a lot of alleged malpractices about the applicant within the short time she was with her. The unfortunate part about her testimony is that Management did not take any concrete steps to verify those things either through a thorough audit or anything close to an audit. As a Court therefore, we have completely put such issues out of our minds because they might just make our minds be poisoned with bias. If the respondents had found any scintilla of truth in these very strong allegations against the applicant, they should have confronted her and call for experts to audit the office. The respondents are a very reputable institution and have the capacity to hire the best auditors we have on the land, but one wonders why they did not take concrete steps on these allegations. It is however this Mwahimba who tipped Mr Munthali about the last straw that broke the camel’s back. Her version is as good as that of Mr Munthali thus we shall not re-narrate it.

The starting point here is the issue about the K550:00 which sparked the whole case.

After having listened to both sides, we were of the view that the applicant indeed failed to give a plausible explanation about this duplicate. If she had forgotten to put the carbon, why did she write the figure K2.40 instead of K550:00? We had no problems here but to believe that indeed, there was some malpractice here which was tantamount to dishonesty.

Having concluded that, the respondent found it imperative to take steps against the applicant. The decision which Management made was to ask the applicant to resign. We have looked at the surrounding circumstances of this case. Whilst we do appreciate that the applicant had disappointed her employers by not being honest with them, we however found that the decision made by the employers was not a fair one. The decision to request the applicant to resign was quite improportional to the wrong which she had displayed. The applicant had not embezzled the K550:00 which was the cause of all this. Before this incident, the applicant was a very honest person. Since she joined the respondent in 1981, she had never been warned either orally or in written form. She had a very clean record and she had been trusted by her employer hence the promotions which she got up to the rank of supervisor or administrator. We therefore found it very difficult to appreciate the punitive measure which the respondents had meted out on the applicant. We asked ourselves one question that is was there no any other action which they could have taken on the applicant? Certainly, we failed to find any fairness in the action taken. The applicant had worked for the respondent for 18 years with no bad record at all. Shortly before this incident, Mr Munthali who came as a witness who was her direct supervisor had just caused an evaluation or assessment of her. He gave an opinion that she was very reliable and honest. Then came this incident where the same honest applicant was totally treated as if she was an extremely dishonest person. We fail to come to terms with this.

After the request that the applicant made to have her case reviewed, the respondent did not answer her. All that time the applicant was awaiting from them that may be they would reconsider her position. Instead of looking at her application for review, the immediate supervisor wrote to the General Manager that the applicant had absconded from work since the 6^th of December, 1999. There is something very funny which we observed. The applicant was told to immediately hand-over the office and immediately resign. The applicant got the letter informing her to resign on the 1^st of December, 1999. On the 2^nd of December, 1999 she handed over the office. It is on record that the applicant came to the office to bid farewell to Mr Munthali. There is nothing on record which suggests that Mr Munthali had given the applicant instructions that she keeps on reporting at the office. Moreover, that could have been contrary to common-sense for her to be reporting to an office where she had been told to hand-over and resign with immediate effect. What could she have been doing there? We really wondered. One should also appreciate that as a human being she might as well have been psychologically affected and also felt humiliated. It was therefore unrealistic that Mr Munthali quickly wrote the General Manager that the applicant had absconded. We would even go further here by saying that the respondent did not take any steps to find out what was happening with the applicant. Mr Munthali wanted to sound as if he had sent someone to the applicant’s house to warn her about her absence at work but upon cross-examination Mr Munthali could not tell this Court as to who went to the house of the applicant and when.

This Court found that the respondent acted very hastily without taking into account other factors. This is an Industrial Relations Court which believes in fairness in all actions that parties take towards one another. We feel that the respondent herein acted out of proportion. Although the applicant had displayed some form of dishonesty which was the first of its kind and of very little degree, the decision to ask the applicant to resign can not be described to have been a fair one. The next step which the respondent took to dismiss the applicant was even worse than the first option because it was totally unwarranted. We have looked at the relief being sought by the applicant, we feel that the best relief to her is to be paid her benefits on early retirement which is the most fair thing for both parties. We order that the Registrar should work out the figures with the parties. We feel that the respondent went a bridge too far. In all labour or industrial disputes, fairness has to be done. It should not only be done but it should manifestly be seen to be done. When we talk of fairness, we mean a wholistic approach to it. It should not only be procedural fairness but should also be substantive fairness.

There are several reasons why we have found that the decision to dismiss the applicant was totally unfair and therefore wrongful. Firstly, even if one concedes that the applicant was dishonest not to have a proper duplicate receipt of K550:00, this wrong can certainly not overshadow the good character displayed by the applicant for the past 18 years or so. The K550:00 was not even stolen. The applicant upon being asked accounted for it and therefore the respondent had lost nothing. The respondent should also have considered in the first place that here was a person who had dedicated all her services to them for 18 years. All her future investment and expectation was in the respondent. The applicant had diligently worked for the respondent without any warning whatsoever. Could the issue of K550:00 really have eclipsed all the good things she had done for them? We do not think so.

Coming to their letter of dismissal, we found that the respondent were blowing both hot and cold. They stated in there that the applicant did not obey legitimate orders and that she was absent from work without leave, permission or reasonable cause. In the first place, we failed to appreciate what the respondent meant by the words "not obey legitimate orders". Which orders did she not obey. If they were referring to their letter asking her to resign, we thought that the Financial Controller had given her permission to appeal to higher authorities for review of her case which she did. But they did not come back to her. Was this fair on their part? We do not think so. Coming to the issue of absence from work, we found that the respondent are contradicting themselves.

Having asked her to resign immediately and hand over everything which she did, we do not think that any reasonable person could have been lingering at the same office. Moreover, we observed that the respondent’s representative in Mzuzu who is the Operations Manager did not act fairly on this issue. He did not make a proper follow up with her at her house. We are very certain that had he done that and specifically informed her to be at work of course doing nothing since she had handed over everything, the applicant could have come. When we looked at the rate at which letters were written by Management to the applicant, we observed that someone some where was in such a big hurry to get her out of the system.

In dealing with human rights, one has to be extremely patient. We therefore found that the decision to dismiss the applicant was both unfair and wrongful. It can not be entertained by this Court. After having looked at the relief the applicant sought and reconciling it with the Conditions of Service of the respondent, we order that instead of re-instating her, the applicant should be given early retirement so that she does not throw her 18 years in the deep seas. Certainly the issue of dishonesty here involving K550:00 only which is not lost does not even warrant a call for resignation. That was very punitive; and industrial justice does not accept that.

DELIVERED in Open Court this 30^th day of June, 2000 at Mzuzu.

His Honour, M.C.C. Mkandawire

Chairman

Mr Nindi

Employer’s Representative

Mr B. Manda 

Employee’s Representative