Mang'ani v People's Trading Centre Limited (MATTER NUMBER IRC 83 of 2017) [2019] MWIRC 1 (3 May 2019)

- THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY MATTER NUMBER I. R. C.83 OF 2017’ IN THE DISPUTE BETWEEN BERNADETTA MANG'ADND .....0ccccscscnnssgnsae peau Ulinincannenmmesnmncemmmnceyey APPLICANT PEOPLE’S TRADING CENTRE LIMITED ...............ccsececeeeceeeenseeeesseeteeee RESPONDENT. CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY Ci!“1RPERSON MISS C. T. NYIRENDA, EMPLOYER'S PANELIST MR ALEXANDER LUNGU, EMPLOYER'S PANE ... S7 MR WILLIAM CHIWAYA, APPLICANT'S COUMSEL MR GOVERN MPAGAJA, RESPONDENT'S i:.8. M. O. MR HEZRON MHONE, COURT CLERK | JUDGMENT 1. INTRODUCTION The applicant was working as a Till Operator for the Respondent since 2010 and she was based at Karonga P. T. C. Shop. She was dismiss“ d from employment with effect from 8 May, 2017 on cilegations that she had seen dishonest by flouting till procedures as the examination of Till slip which .vas issued to a certain customer showed that the applicant omiited Lawari “ooking oii (2 litres) and Vaseline lotion on the fill slip but she demanded the right price from the said customer. The applicant commenced this action claiming that her dismissal was unfair in that it was based on unsubstantiated allegations and that her right to be heard was grossly violated in the process leading to her dismissal. She thus prays for damages for unfair dismissal. The applicant further claims three months’ Notice Pay; Severance allowance having worked for the Respondent for seven complete years and Repatriation costs to be moved from Karonga to her original home, Balaka. The Respondent opposed the applicant’s claims arguing that the applicant was dismissed after being found guilty of misconduct and wes accorded her right to be heard. To put if in their final submissions words; “The Respondent submits that the allegations leading te the applicant’s dismissal were substantiated by the Applicant’s misconduct on 9th March, 2017, which led to the disciplinary hearing which was scheduled to take place on 17th March, 2017 but took place on 8 April, 2017 due to the fact thai the applicant had stated that she had gone to Balaka to attend a funeral.” With regard to the Respondent's prayer, it is said: “The Respondent therefore submits that they did not uniawfully terminate the Applicant’s service of employment; As such, the applicant does not deserve to be paid damages for unfair dismissal; any money in lieu of notice; nor does she deserve to be paid severance allowance as claimed.” 2. ISSUES TO BE DETERMINED (i) | Whether the Applicant'was fairly dismissed or not; and (il) Whether the Applicant is entitled fo the termina! dues/benefits claimed or not. 3. ANALYS!S OF THE EVIDENCE IN RELATION TO THE APPLICABLE LAW (i) On the ground that the Applicant’s dismissal was based on un founded allegations Section 57 (1) of the Employment Act provides that there must be a valid reason if an employer is to terminate the employment of an employer. In the case of Shoprite Trading Limited v. Jokings Cement and others, civil Appeal _ No. 20 of 2012 (H. C) (PR), it was held by Justice Kamwambe that “section 57 of the Employment Act shouid not be complicated. Its plain language should guide US and | believe it is comprehensive enough. Termination will be said to be unfair under this section if no valid reason is given for such fermination and that the employee is accorded the right to be heard in _ a fair manner” . Under section 61 of the Employment Act, the burden of proving that the reason for dismissal was valid lies on the employer. The section further requires the employer to show that in all circumstances of the case, he acted with justice and equity in dismissing the employee. lt was held in the same case of Shoprite Trading Ltd v Joking Cement and others (supra) that when section 67 (1) of the Act above is read with section 57, we may safely conciude that the parliamentarian was deliberately protecting the employee who is in a weaker bargaining position and that the employer no longer enjoys the liberty to dismiss an employee ct his pleasure without consequences. The courts are implored to search for a reason, for that matter, a valid reason for dismissal which will avoid punishment of paying compensation. See also the case of Mahowe v. Malawi Housing Corporation civil cause No. 3687 - of 2000. Let this court agree with the observation by the applicant in her submission that there is a contradiction on the finding by the disciplinary committee and the evidence of Mrs Tapiwa Chilunjika, the Branch Manager for Karonga Peoples Trading Centre store on the omission of some items on the Till slip. Whereas the disciplinary committee Report and the Applicant's dismissal letter states that the applicant's dismissal letter states that the applicants flowred till procedures as the examination of the till slip showed that the applicant omitted Lawani cooking oil (2 litres) and Vaseline lotion, Mrs Tapiwa Chilunjika in her witness statement stated that vaseline lotion was not omitted but rather it was undercharged by K200.00. Another contradiction is observed in the evidence of Tapiwa Chilunjika and Eluby Mwenechanya as regards the date when the alleged thrown away receipt was found. The former stated that it was found on anciher day, in her witness statement but in her repart, exhibit T6, she stated that it was the same day. The latter stated in re-examinatian that it was found the same day under the jumbos. Coming to the report allegedly written by the customer in question and tendered in this court by Mr Tembo and marked as exhibit PT1, the applicant submit that’ there are a lot of things that ought to be noted on this report and all these go to the credibility and the weight that can be attached to the report. She questions why the report was not writfen on the said material date but eight days later when Mr Tembo visited the customer ai her house and why the said report bears no date when the customer bought theses items and more importantly, the report does not state the till operator who attended to her and does not contain any complaint that she was under charged or that some ifems purchased from the shop were omitted on the fill slic that was given to the customer. Again this customer was not called as a witness during the disciplinary hearing. Even though the Respondent argues that she was cailed but indicated that she was busy, there is no evidence fo that effect. _ Thus, on this issue of the customer's report, we observe that the same was crucial in as far as the disciplinary hearing was concerned more specially so when the said customer was not present during the disciplinary hearing. The evidence of Mr Tembo is that he visited this customer at her home/house where sne wrote this report when he was investigating the matter. With due respect, Mr Tembo could have indicated to this customer as to what they were looking for in her report. To that end the customer could have indicated when she visited the shop herein; who attended to her; what went on or what happened as regards the transaction and what problems she faced or encountered during her visit to this shop. This information could have been very material and form the basis of the case against the applicant herein albeit the argument that it was People Trading Centre who was a complainant through the Regional Manager Mr Pau! Tembo, _ and not the customer herein. Honestly, the way, the alleged report by the customer was written leaves a lat to be .desired and we don’t know what useful purpose it serves when it was tendered. From the look of things, the report may just go to the root of exonerating the applicant as it states that the applicant went to the shop, Karonga P. T. C. where she purchased some gloceries and she paid K10,000.00 and got her change, K690.00; it ends there. Again, coming to exhibit T. C.5, which is the purporied till slip, tendered by Mrs Tapiwa Chilunjika, we agree with the applicant's observation that the same is not visible at all and thus it cannot be relied in terms of its contents. Now let us deal with the limb of procedural fairness as the applicant submits that the same was not followed and she advances the following ways in which the _ same was violated. (i) = was not served with the documents that were relied on by the espondent al the disciplinary hearing. The applicant submit that the right to be heard provided under section 57 (2) of the Act has several components and one of those is that the employee must ~ know sufficiently what is being said against him/her, the evidence that is being relied against him/her and that he/she must be given a fair opportunity to correct or contradict the same. She cited the case of Bunendwa v. Dignitas International IRC matter No. 320 of 2005 and also the case of Kanda y. Government of Malaya (1962) AC 322 where lord Danning made the following statement: “If the right to be heard is to be real which is worth anything, it must carry with it a right in the accused man fo know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them” The applicant argues that she was not given relevant documents which were produced during the disciplinary hearing and asked to comment on. ~ Mr Pau! Tembo in re- examination, just stated that he made the documents attached to the witness statement accessible/ available to the applicant but does not state at which stage, i.e., whether during the investigations or when she served the applicant with the Notice of Hearing or during the disciplinary proceedings. To this, it is added that the Respondent's submission that Mr Tembo during cross — examination stated that when ne was serving the applicant the Notice, the documenis were attached to it has no basis in as far as the evidence proffered in this court is concerned. Again, even the submission by the applicant that Mr Tembo said that no any document was served on her is not supported by any evidence. Thus, the only thing which is clear is we do not know when the documents were made available to the applicant. However the applicant having argued. that she was not served prior to the hearing and the Respondent having failed to - counter this evidence in this court, we find that as a fact for the applicant and to that end finds that her right to defend anc prepare for the hearing was thus violated in that regard. . {ii) Sine was not given an opportunity to confront and cross — examine her accuser, the customer. The applicant cited the case of Khoswe v. National Bank of Malawi, (2008) MLLR 201, where the High Court held that it is a fundamenta! principle of natural justice that where a duty to act fairly demands an oral hearing, the right to cross — examine ones accuser also exists. Also cited is the case of Lameck Moyo. V. National Bank of Malawi, matter No. IRC 257 OF 2007. The applicant argues that she was excluded from ihe discussions which the customer herein had with Mrs Chilunjika when she returned to the shop and _ further that this customer did not attend the disciniinary hearing to be Crass: — examined when she was at her home on 17% March, 2017, a date that was also set for the disciplinary hearing as per evidence of Mr Paul Tembo, before being adjourned to 8th April, 2017. The Respondent submits that, “attempts to invife the customer to atiend the hearing were futile. On other 3 occasions, the customer gave excuses which indicated that she was not interested to attend the hearing due fo the fact that she got what she wanted; namely a document showing all _ the items she had purchased, without any omissions as was the case previously. It is also submitted that during the disciplinary hearing, the complainant was the company and not the customer. Furthermore, at disciplinary hearing stage there was sufficient evidence to prove that the applicant was guilty of misconduct of dishonesty” In the first place one wonders where the Respondent's Representative, is taking this from. Going by evidence of Mr Paul Tembo, there is nothing of that sort in-nis witness statement. In his oral testimony, during cross- examination, he just said that ‘we as well invited her (the customer) for the hearing but she said she was busy” We have already alluded to the fact that no evidence was laid of the Respondents efforts to summon the customer herein. This only came during cross _-examination of MrTembo. Again we emphasized on the need for this customer to be present during the disciplinary hearing or at least to file a proper written complaint or report for the disciplinary hearing proceedings. (iii) | The applicant was not tried by an impertial Tribunal. The applicant cited the case of Khoswe_ v. National Bank of Malawi (supra) where the Court held that it is a general principle of law that a person who holds an inquiry must be seen to be impartial. Justice must net cnly 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 irepartial, that is enough. She stated that in the present case, the disciplinary hearing committee that handled the matter was not impartial due to the involvement of Mr Paul Tembo who acted as a process server, a complainant, witness ang also a judge in this matter. We agree with the applicant on her observation and that if is not in dispute that it was Mr Paul Tembo who suspended the applicant from employment, conducted the investigations and also invited the applicant to attend the disciplinary hearing. However what is indispute is whether Mr Paul Tembo conducted himself as one of the Panelists. The applicant supports her assertions by the minutes of the hearing that were tendered in this court by Mr Emmanuel Nkoka, marked as exhibit EN 6 where it is indicated " .... The panel comprised of Mr P. Tembo, J. Mhone, C. Matita and E. Nkoka...... ” The Respondent submits that Emmanuel Nkoka admitied fo have erroneously stated in the report that Mr Paul Tembo was part of the hearing panel and the said error does not make Mr Paul Tembo a signatory of the report. He attended the hearing as a witness and also the complainant on behalf of the company and no injustice was occasioned by the said error. This court notes that in his witness statement, Mr Tembo at paragraph 8 stated “my testimony during the disciplinary hearing was that in my investigation into the issue, | saw that Bernadetta has been dishonest” Again, it is observed that in the Hearing Report, he is not appearing as witness and by the same taken he is not appearing as one of the signatories of the report although Mr Nkoka mentioned in the Report that ihe pans! comprised Mr P. Tembo as well. To that end it can be argued that Mr Paul Tembo appeared as a complainant and not necessarily a witness per se though a complainant is as good as a witness. This is evident is exhibit PT3, Notice to attend A Disciplinary Hearing where on the complainant part, there is Paul Tembo and job title is RM, t's. Regional Manager. So in the circumstances, can we say that Mr Paul Temo, though not a Panelist, influenced or somehow contributed to the member panelists’ decision hereiné | believe that that cannot be said with certainty. Suitice to say that it was not proper, in this court's view, for the same person to be a complainant: make a decision of suspending the applicant: investigate the mater; serve the applicant with-a notice of hearing and testify in the disciplinary hearing albeit in his capacity as a complainant. A line could have been drawn somewhere so as to avoid the perception that justice was being not done as per the principle cited in the Khoswe case (supra). . All this should be viewed with regard to the position of the law under section 61 (2) of the Employment Act that an employer is required to show that in all circumstances of the case, he cited with justice and equity in dismissing the employee. , FINDINGS AND CONCLUSIONS With the foregoing analysis, it is thus stated that the position of the law is that it is not enough to simply allege that the employer has a valid reason for dismissal. ' The employer must estabiish that the reason was justified. The court examines the reason given for termination of employment and the act of misconduct and tries to find if the termination is justified. If the reason is not supported by evidence, the Court may conclude that there was no justification for the dismissal. See Mahowe V. Malawi Housing Corporation (supra). And in Jawadu_V. Malawi Revenue Authority (2008) MLLR 397, The Industrial Relations Court held that: “In cases of dismissal, it is not just a matter of producing reasons and conduct a hearing in compliance with section 57 (1) and (2) of fhe Employment Ac}. A court will go further to find out if the termination was justified. If the reason is not supported by evidence, the Court may conclude that there was no justification for dismissal. The burden of substantiating reasons for dismissal is on the employer. Where the employer fails to provide the reason on a balance of . probabilities, there is a conclusive presumption that the dismissal was unfair” On investigation, we quote as follows in the book by R. S. Sikwese, Labour Law in Malawi, 2010 (1% edition) at page 91:* In all cases of misconduct, investigations form part and parcel of the disciplinary process. Disciplinary action cannot be taken against an employee for allegations of misconduct without enquiries being made into the alleged misconduct unless the employee is caught red handed. In serious cases of misconduct involving theft, fraud, criminal activities and other acts of dishonesty, an investigation forms the basis of the decision to dismiss even where the theft or fraud is not proved against the employee. This is because such cases are difficult to prove” The need to investigate is summarised as follows in the case of Polkey V. A. E. Dayton Services Lid (1987) 3 LLER 974: “In a case where an employee is dismissed because the employer suspects‘ or believes that he or she has. committed an act of misconduct, in determining whether that dismissal is unfair fhe Court must decide whether the employer who discharged the employee on fhe ground of misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This involves three elements. First, there must be established by the employer the fact of that belief: that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. And third, fhe employer at the stage at which he formed that belief on those grounds, must fiave carried out as much investigation into the matter as was reasonable in ali the circumstances of the case” Thus, investigations must be sufficient, reasonable, fair and genuine. In the instant case, having subjected the evidence into scrutiny with the applicable laws, it is found that the Respondent failed fo justify in this Court the reason for the applicant’s dismissal. Further, in the circumstances of the case, the Ressondent did flout some _ components of procedural fairness prior and during tne disciplinary hearing .as such it can be concluded that the Respondent did not act with justice and equity in dismissing the applicant herein. To that end this Court finds that the applicant was unfairly dismissed and thus entitled to damages thereof to be assessed by the Assistant Registrar together with other heads of clams, namely Notice Pay, Severance allowance and Repatriation costs. Right of appeal explained as per the provisions of section 65 of the Labour Relations Act. MADE this 3rd day of May, 2019 at Mzuzu. K. D MLUNGU DEPUTY CHAIRPERSON C. T NYIRENDA (MISS) EMPLOYERS’ PANELIST ~ MR ALEXANDER LUNGU EMPLOYEES’ PANALIST