Kaunda v Registered Trustees of Karonga Diocese (MATTER NUMBER IRC 6 of 2018) [2020] MWIRC 1 (19 May 2020)

onl OF. 67... T: 2 Registrar | dustrial Rafes tore 20 MAY 2020 ! | a eee, | (Crew THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY MATTER NUMBER I. R. C. 06 OF 2018 ALFRED KAUNDAA: ccscsncanccenvsnnnacenna dill sein ten waerENe RENAN yes awams APPLICANT THE REGISTERED TRUSTESS OF KARONGA DIOCESE ............. RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MR HAXWELL MKANDAWIRE, EMPLOYERS’ PANELIST MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR AARONI GAUSI, APPLICANT'S COUNSEL MR CHRISTON GHAMBI, RESPONDENT’S COUNSEL MR HEZRON MHONE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant brought this action before this court claiming compensation for unfair dismissal; severance allowance, Notice pay and Pension. 2. EVIDENCE 1 2.1 APPLICANT'S EVIDENCE Briefly his evidence is that he started working for the Respondent as a nurse mid wife technician in August, 2009 before he was appointed as an Environmental Health Officer from October, 2014. He went on to say that on 26 February, 2017 he did not report for work due to the breakdown of the vehicle he had boarded from Mzuzu and on 14! March, 2017, he was orally told by the Vice Chairperson of the disciplinary committee around 11.00 hours to appear before the disciplinary committee at 14.30 hours but no reasons for the same we disclosed to him. When he finally appeared, he was Charged with absenteeism. At the hearing, he requested for an adjournment from the Respondent's witnesses including his supervisor to be cross - examined and also that he be allowed to bring his witnesses but this request was not granted. After being given the minutes of the hearing, he refused to sign as they were conclusive and did contain somethings that were not said at the hearing. Then in September 2017 he asked for an annual leave to commence in October, 2017 but management instead told him to go on forced leave since they said he was tired and disorganized. When he refused, they insisted and he just obliged. When he came back, he still reminded management of his annual leave in October but the request was denied and he ended up sending a text message to the sister in- charge of the hospital complaining of this unfair treatment. This only resulted in him being summoned for a disciplinary hearing on 19! October, 2017 for him to explain about the text message herein. During the hearing he requested for the presence of the sister — in - charge but the same was not granted and he refused to write the text again after being asked to do SO. A few days later he received a letter of dismissal with effect from 2.9 November, 2017 necessitating his filling of the present action where he contends that his right to be heard was violated as he was not given a chance to bring any witnesses or even cross — examine his accusers; that he was not given the notice of the hearing in writing and in time or in advance and that his dismissal came as a result of the recommendation to the disciplinary committee by the 219 Resoondent after he had an altercation with her upon insisting that he was insane. 2.2 THE RESPONDENT’S CASE. The Respondent arques that the applicant's dismissal was fair because he was invited for a disciplinary hearing several times on the same misconduct of absenteeism, late reporting for duties, reporting for work whilst drunk and insubordination and that he never charged. Further that ihe action of the Respondent in dismissing the applicant was in line with the requirements of section 57 of the Employment Act and that the advancing of unfair labour practices and unlawful dismissal against a single action of the Respondent is misleading and should be ignored. Lastly, that the applicant already received his notice pay and no severance allowance is due to the applicant. 3. LEGAL ISSUES TO BE DETERMINED 1. Whether the applicant was unfairly dismissed or not 2. Whether the applicant is entitled to compensation and fhe other remedies sought herein or not 4. APPLICABLE LAW 4.1 THE CONSTITUTION Section 31 of the Republic of Malawi Constitution provides that ‘Every person shall have the right to fair and safe labour practices and to fair remuneration’ 4.2 THE EMPLOYMENT ACT, 2000 Section 57 provides as follows: “1, The employment of an employee shall not be terminated by any 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 an employee 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” Section 58 provides that “A dismissal is unfair if itis not in conformity with section 57 or is a constructive dismissal pursuant to section 60.” Section 59 provides as follows: (1) An employer is entitled to dismiss summarily an employee on the following grounds:- (a) Where an employee is guilty of serious misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment such that if would be unreasonable to require the employer to continue the employment relationship; (6) Habitual or substantial neglect of his duties; (c) Lack of skill that the employee expressly or by implication holds himself TO possess; (d)} Willful disobedience to lawful orders given by the employer; or (e) Absence from work without permission of the employer and without reasonable excuse. (2) In subsection (1} “summary dismissal” means termination of the contract of employment by the employer without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. §. ANALYSIS OF THE APPLICABLE LAW On unfairness of the dismissal, the termination ought to comply with section 57 of the Employment Act. As it was stated in the case of Chakhaza V. Portland Cement Company (2008) MLLR 118, HC at 126: “What clearly emerges from fhe above quoted provisions of sections 57 of the Employment Act is that while an employer can terminate an employee's employment for reasons fo do with the employee’s conduct, the law places a burden on the employer fo ensure that fhe employee is given an opportunity to be heard on the alleged misconduct before the termination can be effected otherwise it would amount to unfair dismissal” And in Ernest Mtingwi V. Malawi Revenue Authority (HC) Civil Cause No. 3389 of 2004, Chipeta J. observed as follows: “By subsection (2) of the same section 57, however, the Employment Act has put in store further taxing demands on the employer when he embarks on the exercise of terminating services of his employee. This provision requires that where the coniemplated termination is for reasons connected with the employee’s capacity or conduct, then before it is effected, it ought to be proceed with the provision of an opportunity to the concerned employee to defend himself against the allegations made unless the employer cannot reasonably be expected to provide that opportunity.” See also Sam Nfhini V. Energem Petroleum Ltd, Matter No. (PR) 513 of 2007 and Jawadu V. Malawi Revenue Authority (2008) MLLR 397. What constitutes an opportunity to be heard was well explained in Kanda V. Government of Malaya (1962) AC 322 at 337 a follows: “If the right to be heard Is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. He must know what evidence has been given ... and then he must be given a fair opportunity to correct or contradict them. All this just emphasise that where the opportunity to be heard exists, the employer will need to furnish the employee with the reason (that is factually correct and related to his employment) for proposing to terminate the employment and provide him a reasonable chance fo respond fo it. Further, another component of the right to be heard is that an employee has to know the charges levelled against him, i.e., that the charges need not only be made known to him but also that they should be set out with sufficient particulars to allow the “accused’ employee to properly prepare his defence as failure to do so would be unfair labour practice and would lead to miscarriage of procedural justice. See the case of Lameck Moyo V. National Bank of Malawi Matter No. IRC 257 of 2007. Also in R V. Thames Magistrates’ Court, exparte Polemis (1974) 2 ALL ER, 1220 where Lord Widgery C. J Commented as follows at 1223 on the need for sufficient time: “ But of the versions of breach of rules of natural justice with which in this Court we are dealing with constanfly, perhaps the most common foday is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the Court and of course the opportunity to present their case to the Court is not confined to being given an opportunity to stand up and say what you want fo say; it necessarily extends to a reasonable opportunity fo prepare your case before you are called to present itt A mere allocation of Court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.... In the instant case, on the brief and simple facts that | have related, can if be said that the applicant was given a reasonable opportunity to present his case? It seems to me to be foftally unarguable that he was given such a reasonable opportunity. He had no time to take samples, no time to see a report of samples taken by the prosecution, no time to look for witnesses, no time to prepare any supporting evidence supportive to his own, and that too when he was a man with a very rudimentary knowledge of the English language in a country foreign fo his own. When one just looks at those facts if seems to me to be a case in which any suggestion that he had a reasonable chance fo prepare his defence is completely unarguable” Another component on the right to be heard is that an ‘accused’ employee must have an opportunity to confront and cross — examine his accusers. See Lameck Moyo V. National Bank of Malawi; supra and also Khoswe V. National Bank of Malawi (2008 MLLR 201 where the Court stated as follows: “it is a fundamental principle of natural justice that where the duty to act fairly demands an oral hearing the right to cross - examine witnesses existed.” Further in the same Khoswe case, the Court discussed another component of facing an impartial tribunal at 216 as follows: “It is also general principle of law that a person who holds an inquiry must be seen to be impartial. Justice must not only be done but must be seen to be done, that if a reasonable observer with full knowledge of the facts would conclude that the hearing might not be impartial, that is enough. Even if the decision maker has not been biased at all, a decision may still be quashed if they have any professional or personal interest in the issues because justice must be seen to be done.” See also Ntaba V. Continental Discount House (2008) MLLR 472. 6.0 APPLICANTION OF THE LAW TO THE FACTS 6.1 on the applicant not being given a reasonable notice of all factual allegations against him in a form he can understand to allow him prepare his defence and being given an opportunity to be heard: Most case laws have held that failure by the decision — maker to give prior notice is tantamount to denial of procedural fairness and that once it Is established that the applicant never got the notice, that he was not accorded procedural fairness is a foregone conclusion. See Kanda case, supra; Ridge V. Baldwin (1944) AC and Chief Constable of North Wales V. Evans (1982) IWLR 1165: Courts have gone further to state that where an employee is invited to an impromptu meeting with his superiors where he is orally informed of what they suspect him of having done, that should not be accepted as. sufficient disclosure of the allegations against him unless the circumstances do not permit. As such Courts should insist on written charges of allegations being presented to the employee as a minimum test of the employer's compliance with section 57 (1) and (2). To quote the case of Kumwenda V. Paralegal Advisory Service and Youth Watch Society IRC Matter No. 447 of 2003. “This Court has pointed out on diverse occasions that section 57 (2) of the Employment Act demands that the employer should afford the employee the opportunity to defend himself or herself. What this entails therefore is that there 6 should be specific charges or a specific charge against the employee. The employee should then be given adequate time to respond to the charges. Tne hearing shall depend on the prevailing styles at the place of work. Some institutions will appoint specific officers to conduct the hearing. Some institutions have a Board of Trustees or Directors. But what is important is that there should be a hearing whereby the employee is levelled with allegations. Some hearings will be orally conducted with the employee having a chance even to cross — examine potential witnesses, whilst some hearings will fake the form of the employee responding to the written allegations also in a written form. The Court has always recommended the former for it gives the employee as well as the employer more adequate opportunity to scrutinize the issues.” And as the High Court recently put it in The State V. Council of University of Malawi, Ex parte Msukumwa misc. civil cause No. 50 of 2006: If one is to answer any charge, particulars of the same should be given to afford the accused a clear outline of the nature of the charge so that he is able to ably defend himself or herself. | say to ably defend himself to mean to equip oneself with the necessary ammunition. It is not enough to given someone the right to be heard or defend himself if he or she was deprived of adequate notice to ably defend oneself or the charge was so general that the accused fails to make a meaningful defence. One should not say | understand | have a charge, they will make it clear to me during hearing time. Before the time of hearing the accused musi be clear in his mind about the nature of the charge. Just to say come and answer charges of cheating and no more is so lacking and in adequate since it is devoid of particulars. One has to state how the cheating took place who saw him cheating and when if happened. Only in such circumstances can one know how to defend himself or how to prepare a defence and decide which witness to call.” Thus in the case herein, this Court agrees with the applicant that he was not given time to prepare for his initial disciplinary hearing as there was no prior notice. This violated his right to be heard. And as per the case law discussed above, one would say that he was dismissed without being given any opportunity to be heard. As a result the dismissal will be unfair despite the fact that the employer has a valid reason for it. 6.2 On Bias and an impartial tribunal We referred in our discussion on the applicable law to the case of khoswe V. National Bank of Malawi and Ntaba V. Continental Discount House Lid where the employer's decision to dismiss the employees was flawed by reason of actual or apprehended bias. Individuals who accused the employees of wrong doing either took part or presided over the hearings that made the decisions to dismiss the employees. In Banda V. Dwangwa Cane Growers CO. Ltd IRC matter No. 18 of 2001, the General Manager and the two other Senior Managers interviewed the plaintiff on his alleged misconduct and subsequently dismissed him. The Court faulted that decision as being inconsistent with section 57 (2) saying those three persons had been the target of tne farmers’ siege and as such they were directly connected to and had personal interests in the subject and outcome of the interview so that they could not be expected to act impartially against the plaintiff. And that was reflected in the soeed with which the hearing was held (hours after the farmers demonstration was over) and the decision to dismiss the plaintiff was reached. As he was subsequently summarily dismissed the day after the farmers’ demonstration, hours after the adhoc interview in the General Manager's office and before he had been informed about the outcome of the interview, the dismissal was held to be unfair. Again in Ntaba case where the plaintiff was summarily dismissed for insubordination to the Company's Chief Executive who was her immediate superior, the fact that the decision was reached in her absence and at a meeting over which he presided made the dismissal unfair. In the view of the Court, the Chief Executive was effectively a judge in his own cause and the fact that the plaintiff was not present at the meeting and was not afforded an opportunity to be heard before the decisions was a clear violation of procedural fairness. Thus the gist of the Banda and Ntaba cases is that as those managers had clear personal interest in the outcome of the hearings, they could not bring independent and impartial minds to the proceedings. They either influenced the outcome or would be perceived by any reasonable observer who was fully acquainted with the facts fo have done so. As such dismissals made through such proceedings could not be fair. See DR C. Chilumpha, Unfair Dismissal: Underlying Principles and Remedies (2008) p.p 71- 72 In the instant case herein, the conduct of the 2°¢ Respondent, who is the Hospital Director, after having an altercation with the applicant in her office, does not stand this bias or impartiality test. As soon affer having an alteration with the applicant in her office, she complained to the Disciplinary Committee and recommended for the applicant's rehabilitation at St John of God Hospital in Mzuzu and also wrote a letier recommending his dismissal and even signed for the decision to dismiss him. 6.3 On the ‘accused’ employee's right fo confront and cross examine his accuser’s, we referred to the cases of Lameck Moyo and Khoswe, both against National Bank of Malawi. |n the instant case that was not done. 6.4 Now we tum to where a hearing is nof required or to Exceptions to Procedural fairness. R. S. Sikwese wrote in her book, Labour Law in Malawi, 2010, p.p 94-95 “Sections 57 (2) exempts employees from carrying out any requirements Under its provisions if the employee has absconded from work and cannot be traced or is not willing to report for duties after being advised to report for work.... The employer is also exempted from carrying out the procedures under section 57 (2) if ine employee refuses to respond to the allegations or refuses to defend himself/herself. In Jassani and others V. Telkom Networks (MW) Ltd, Matter No. IRC 154 of 2006 the applicants refused to say anything in their own defence when they appeared before a disciplinary hearing. The Court held that the duty under section 57 (2) of the EA is reciprocal. An employer has an obligation to provide an opportunity for the employee to defend/ herself and the employee has a corresponding duty to state his/her case and defend himself. The right to remain silent, as is the case in criminal cases, does not apply in matters relating to employment contracts” see also Ng’oma V. Peoples Trading Centre (PTC) Limited Matter No. IRC 19 of 2002 (unreported). Dr Chilumpha in his book Unfair Dismissal Underlying Principles and Remedies (2008) p.p 73-74 puts it as follows: “ where a hearing is not required .. (T}he nature of the wrong doing involved and the manner in which it is committed may justify dismissal without strict compliance with the requirements of procedural fairness. Where the employee is caught in the act of stealing from the employer or accepting a bribe from the employer's customer or breaking into the employer’s property or using the employer's property for his personal benefit, a hearing in any form would noi serve any practical purpose. If if is accepted that the object of section 57 is to ensure that employment is not terminated by the employer or mére suspicion, in these circumstances a hearing in any form will be a need less burden. As in that case the employer would not be acting on a mere allegations. But on hard evidence of the employee's misconduct, the employee would not have been treated unfairly (of course whether the dismissal would have satisfied ihe requirement of section 61 (2) is a different is issue}. As a result the dismissal would not be inconsistent with the Underlying object of section 57 (1) and (2). See Gibson V. Bormac Pty Ltd (1995) IRCA 222. Thus, the duty of this Court at this juncture would be to analyse whether the exceptions expounded above were so in the instant case as per some of the Respondent’s arguments. We find that throughout the meetings, consultations and Correspondences between the applicant and the Disciplinary Committee or member (s) of Management, the said exceptions did not arise. On the occasion where ihe disciplinary committee met fhe applicant for the first time, his insistence to have the supervisor called or ask for adjournment to parade his witness, the same did not amount to a conduct as discussed, in Jassani case supra since the applicant was not given adequate notice to prepare for his case and he had a right to confront and cross — examine witnesses in an able manner. 7. CONCLUSIONS & FINDINGS Much as we agree that a disciplinary hearing is not a judicial proceeding such that it should be reviewed with the same standards applicable to such proceedings, Courts construe disciplinary procedures strictly and enforce them rigorously to the extent that if the employer fails to comply with section 57 (2), the termination of ihe Employment is automatically unfair. Chilumpha, op.cift. p.77. The learned author also observed as follows at p.76 ‘Thus the question whether or not any termination of employment by the employer is unfair under the Employment Act can only be based on findings of fact relating to alleged acts of misconduct (if any) that were bought to the employee's attention {in accordance with section 57 (2), and against which he had an opportunity to defend himself, before the employer took the delereous decision. If that was not done at the time or the allegation's disclosed to the employee are not connected with his capacity or conduct (as required by section 57 (1) or do not fail within section 59 (1) or the particulars of employment supplied to him by reason of section 27 (3) (g), the Court must find him to have been unfairly dismissed within the meaning of sections 58 And it does not matter that the employer is able in his trial evidence, to show that the employee was otherwise guilfy of misconduct that would ordinarily justify his dismissal under section 59 (1). As long as he was not informed of that alleged misconduct, and has no opportunity to defend himself against it, before the employer terminated the employment, that subsequent disclosure Cannot ex post facto make the dismissal fair.” Thus, with the foregoing analysis, we are of the fortified view that the applicant has proved that the dismissal was unfair in that the Respondents failed to follow most of procedural requirements discussed above which in all fairness and justifiably so, they are required fo comply with. 10 To that end the applicant is entitled fo the remedy of compensation as prayed for and to be assessed. On the claims of Notice and Severance Allowance. It has been argued by the Respondent ‘that in the present case, the employee lost his right to Notice Pay because he was dismissed summarily; and if the Court finds that the employee was entitled to Notice under the circumstances, Notice pay was given to the employee since he was given salary for the month of November which he did not work; and further that ordering the Respondent to pay the applicant Notice Pay will, therefore, translate to a bonus to the applicant. The applicant has not counter argued against the above position by the respondent and as such we will be inclined to agree with the Respondent as the payment is confirmed in the Termination letter here in exhibited. We accordingly decline to grant this relief. On severance pay, it has been argued by the Respondent that from section 53(2) of the Employment (Amendment) Act, 2010, for an employee to receive severance pay at the termination of his services, he has to prove to the Court that what ihe employer paid as contribution to his pension is less than what he has received as severance pay. And in the present case, the employer was making pension contributions for the employee and what the employer herein contributed towards the employee's pension is higher than what the employee would have received as severance pay as such there is no severance pay due to the applicant. The Pension Act, 2011 is also to that effect: It is in evidence that herein the applicant received pension benefits from Old Mutual as per exhibit NN6. There is no contrary position by the applicant on the same. As such we hold that both claims for severance pay and pension have not been proven by the applicant and as such they cannot succeed and they are dismissed accordingly. Dated the 19% of May, 2020 at Mzuzu. K. D me DEPUTY CHAIRPERSON Ld cw HAXWELL MKANDAWIRE PLOYERS' PANELIST AAAS MR ALEXANDER LUNGU EMPLOYEES’ PANALIST 12