Kambalame v Southern Bottlers Limited (Civil Appeal 7 of 2017) [2022] MWHC 218 (7 July 2022)

y Loren Lo A REPUBLIC OF MALAWI = “IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY. CIVIL APPEAL No. 7___ of 2017 BEFORE HON. JUSTICE D, MADISE (Being the matter at the Industrial Relations Court, Principal Registry, Civil Cause | . No. 197 of 2010) DENNIS KAMBALAME, ...sscssesssssesessesssnsescescecesseeseeeeeeesses APPELLANT | SOUTHERN BOTTLERS BS LEME IED wet veeeetes seeeeeeenees _RESPONDENT Coram; Hon Mr. Iustice D Madise Mr, Mwandira for the Appellant. . | ~ Ms. Asante Mussa - , Mr. Mathanda clerk J udgement Madise, J Intr oduction . The facts of the matter. are that the Appellant was an employee of the . Respondent. He was dismissed from the employment on 19% July, 2010. The Appellant commenced court ptoceedings against the Respondent and the Industrial Relations Court, the court below, found that the dismissal was fair. The Appellant being dissatisfied with the ‘said judgment appealed to the High - Court hence the present proceedings, Appeals in this court are by way of rehearing within the restriction of the law in matters coming from the IRC. See | Section 65 (1) & @QY of the Labour Relations Act, Cap 54:01, Laws of Malawi Grounds of appeal. . That the Hon. D:; Degabriele Chait ‘person erred on the point of law when it found that there was a valid reason to dismiss the Appellant when there was evidence . . to the contrary; | That the Hon, D. Degabriele Chairperson erred on point of law when it found that there was no evidence of the. overage when the same was ably presented by the Appellant meaning that the i issue of shortage was offset by the overage; . That the Hon. D. Degabriele Chairperson erred on the point of law when it made B finding that the final warnin g had expired when in‘ fact the warning was valid - for 6 months.as-opposed to 12 months, The Facts, | . The Appellant was employed on igh October, 2006, He was dismissed:on 19” July, 2010 on grounds ofa shortage of 20-cartons of powers. He was.a warehouse clerk and he was working with his colleague Mr. Elias Senda, that the two did the balance and the same were in order, in the month of June, 2010. Then one - week thereafter, Mr. Msukwa the logistics Auditor advised the Appellant andhis colleague that their shift had a shortage of 20 cartons of powers. Within the same week, a day or two after the audit report from Mr. Msukwa, there was an overage 2 of about 21 cartons of powers. After this development Mr, Msukwa was of the view that there might, have been, miscaloulations of the figures i in which case the cartons mi ight have been intact and in the war ehouse, 1 hree weeks after the alleged discovery of the shortage of 20 cartons of powers, Elias Senda, the Appellant’ s colleague was discovered with a pallet of Fanta overage (72 cases) and was atrested: by police and eventually dismissed. 58 days | after the alleged 20) carton shortage, the Appellant was called to a disciplinary hearing. The ‘Appellant, was called alone while his colleague who had been dismissed ona different i issue, was not called. At the fearing it was alleged that’ : 18 cartons were missing not 20. The Appellant was not shown the found cartons or if indeed it was only 2 cartons. missing not 20. The Hearing happened on 7 July, 2010. At the panel of hearing were the following; Mr. Sikelo CAR vepattts Mr. Mudeba of union; Mr. Msukwas as witness ~ | On 18 J ily, 2016 the Appellant received the dismissal letter, The Law Law . The burden and standard of proof i in civil matter is this. tt is trite Jaw that he -who alleges. the existence of certain facts’ is legally bound to prove his/her case “as a positive is always easier to prove that a negative. The standard required | is ona balance of probabilities. The scale must tilt towards the claimant's story for him/her to succeed, If the scales are’ évenly balariced, the claim must fail. As Denning J, stated i in Miller vs. Minister of Pensions [1947] 2A iv E. R, 372, i the evidence i Is such that the tr ibunal can say ‘we think it more pr obable than not’ the burden is discharged, but ft the probabilities are equal it is not ; Jurisdiction of the High Court on Appeal. Section 65 © & (2) of the Labour - Relations Act, Cap 54: OL. Laws of Malawi 10, Lt. “Provides that: ( ) Subject to subsection (2), decisions oft the Industrial Relation Court shall be final and binding. (2) A decision of the Industrial Relations court may be appealed to the High Court on a question of the law or jurisdiction within thirty days of the decision being rendered. (emphasis added) Em ployment Law - Section 57 ( 1) of the Employment Act states as follow; “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”. Further Section S7(2) of the employment Act provides as follows; “The employment of the employee shall not be terminated for reasons. connected with his capacity or conduct before the employee is provided an oppor tunity to defend himself against the allegation made, unless the employer cannot reasonably be e expected to provide t the oppor tunity”; ; The term ‘capacity in Section 57 includes qualification, competence and health, Scotion 57 was discussed in detail i in the IRC decision of Ngwenya and Gondwe | y, Automotive. Pr oducts Limited. ‘Hon Mkandawire J said that Section 57(1) i is concerned with substantial Justice while Section 57(2) deals with procedural justice. Apart from dismissal based on capacity ‘of the employee or operational requirements, an employee may. also be dismissed ‘based on misconduct, There cannot be an exhaustive list of acts of misconduct. However, they include . dishonesty, fraud, habitual abséntecism and refusal to take lawful orders among 12. many others. . In terms of Section 5f (2) the employment of an employee cannot be terminated for reasons connected with his’ capacity or conduct before the employee is provided : an, opportunity to defend himself against the allegation made, unless | 4 13. the employer cannot reasonably be expected to provide the opportunity; Appellant’s Submissions a The Appellant submitted that in the present case there was no valid reason for the dismissal of the Appellant because there was no shortage i in that the overage offset the shortage. T hat the following facts ably explains that the overage offset the shortage and that it was about miscalculation on the part of the Respondent. dti is the argument of the Appellant, that in any event, as the above facts show, there was no shortage in the first place, it was just an issue of miscalculation. i They submitted that there was no valid reasons for the dismissal of the Appellant ‘14, in that if the calculation had been, carried out properly, there could have been no- shortage at all; That of page 2 of the court record confirms that there were 21 cartons of powers which. were found; “On 10 May, 2010 there were 2 warehouse clerks, supervisor and others. I was informed after a week that there was a shortage of 20 carton powers. A week ‘later we found. we had overage of 21 cartons of powers. I was:thén called to a disciplinary heart ing. for 18 car fons. When I asked Twas told that the’ cartons — wer re found’ 15, in that there was no valid reason contrary to Section 57 G) of the Bmployment That the distnissal of the Appellant/Applicantv was therefore unlawful and unfait Act in that the reason for which’ he was dismissed namely “Shortage of 18 cartons of powers” never or. ought to have not existed. The appellant submitted _ that the court allows the appeal and damages be assessed accord ingly; : 16. Respondent's Submissions ; That the High Court in the, case of Elizabeth “Chakanza v, 1. Agricultural Development and Marketing Corporation, ‘Civil Appeal No. 17 of 2012 stated that Sections 65 (1): and (2) of the. Labour Relations Act are to the. effect thatthe _ appellate jurisdiction of the High Court is. restricted to consider questions of law 5 17, or jurisdiction which an appeal may raise as the decision of the IRC on matters of fact is final and binding. The position was also affirmed by the Supreme Court of Appeal in Magalasi ¥. National Bank of Malawi (2008) MLLR at p.47. This’being the law, the High Court is thus precluded from entertaining an appeal from the Industrial Relations Court on a finding of fact by that court. tis the position of the law that such a finding i is final and cannot be appealed against: see Chirwa J in Ronald Mwase and Others v. Shire ‘Bus Lines. Limited, IRC. Appeal No. 11 of 2011(HC) at 18. That the quality of grounds of appeal allows an appellate court to determine whether the appeal will revolve on facts rather than law or that it will be about a question of subjects other than. jurisdiction and thus fall outside the class of appeals that are acceptable under Section 65(2) of the Labour Relations Act, . That Chipeta J then in Malawi Revenue Authority v. Malizani (2008) MLLR 243 (HC) at p. 247, That Tembo J in Masauli vy, Malawi Savings Bank, IRC Appeal Case No.2 of 2017 at p.3 approved the position on what qualifies as a question of Law or of fact as s laid down by Mwale Jin Kamanga v Mota Engil, Civil Appeal No. 163: of 2016(HC) (unreported) as follows: o question of Law, by its very nature demands a response arrived at by applying relevant legal | pr inciples to interpretation of the Law. Ti he resulting . response must be capable of expression in terms of broad legal pr inciples that irariscend the confi ines of the par ticular setofe circumstances of, factual situations so.as to be capable of application to diverse situations. if the respons se can only be applied to the circumstances, factual situation, evidence at hand or infer ence ” resulting therefrom, ‘the. question. is more likely of fact. To put itieven more 19. dimension t to. it, The reason must be properly. grounded and supported. by simply, a question. of fact involves an inguiry into whether something happened or will happen. (emphasis added) That whether a. reason for dismissal is valid has a legal as well as a, factual 6 20). available evidence such that a court on appeal can consider as an issue whether the reason for a justified in dismissing the employee summarily: Myula and Norse International (1992) 15 MLR 33} (HC) at p. 336. . incurring. unacceptable shortage without any proper explanation has been held fo constitute fair reason for summary dismissal under Section 59 of the Employment Act: They cited Liyaya ¥. Mianga EL éa Estates IRC 41 OF 2003: Mbalangwe-v. People Trading Contre [Matter Number TRC 164/2001 (unreported). Which stated that dishonesty i is also one of the gross cases of misconduct warranting “summary dismissal. That before an employee is dismissed summarily on 21. grounds of misconduct, he is still entitled to fair procedure and process by being granted a fair hearing on the allegations leveled against him, in the absence of which courts s generally consider the dismissal as unfair: . , Arguments Valid Reason * That the coutt. below consideted the: issue ‘of the validity of the reason for . dismissal of the Appellant herein, ‘The finding of the court was pr emised on the 92, 23. Tea Estates (supra) and Mbalangwe », Peoples Trading Centre (supra) held that . “court’s - factual finding that the Appellant had been habitually guilty of misconduct for which he. admitted being taken through disciplinary procedure before and being warned. The court below in finding, that the dismissal ‘of the Appellant was well grounded i in law and i in fact held that the Respondent was | right in taking into account the previous conduct of the Appellant: That the position of the law is ‘that while the degree of conduct warranting’ a summary dismissal may not be Set by a ‘rule of law, any conduct which i is incompatible with an employee’ s due and faithful ‘discharge of his duty to. his | employer entitles the employer to summarily dismiss him as per Mvula and Norse International (supra). Specifically, applicable to the present matter, it was held in Liyaya v. Mianga — 7 : incurring shortages without any. explanation constitutes a fair reason for 24. 25. 26. 27. summary dismissal. That the principle is that dishonesty is also a gross case of misconduct warranting summary dismissal. The court below did not ert in law in finding on the weight of the evidence before the court that the Appellant ° was guilty of misconduct warranting summary dismissal by incurr ing a shortage by dishonestly’ recording false figures on the warehouse returns. (RP {4 and RP 15) such that the Respondent had a valid reason at law for summary dismissal of the Appellant: see page 2 of the Judgment of the court below. hat it is worth buttressing that. the court below found as factual that the Appellant does not deny the misconduct of i incurring a shortage such that the act _ of misconduct comes before this court as already established. Any application of ‘the law on summary dismissal as discussed herein to such a fact ought to . uphold the fi nding of the court below. The first st ground of appeal must therefore fail entirely... Whether or not there: was an overage -— That the 2"4 ground of appeal - seeks to reopen before the appellate court. a quéstion of an existence or occurrence of a factual matter which the court below found as final that it was not in existence on the weight of all the evidence before “the court. The ground of appeal, cannot be addressed without the Appellant reinventing the factual scenario even without evidence contrary to the finding of the court below. That the : position of the law i is s that a question of iaw, which the High Court i in its appellate jurisdiction can address, by its nature is answered by an application of principles of. interpretation of the law. The IRC found as factual that the . Appellant only alleged an overage without adducing any evidence for the same. The 2n ground of Appeal begs the question whether or not there was an overage which the Appellant can show before the court at this stage. The law would oo seriously militate against such. attempts as the High Court is precluded from 8 28. of appeal ander Section 65 (2) of the Labour Relations Act as itis neither on a entertaining as appeal from the IRC ona finding of fact by that court. It is a clear position of the law that such a finding | is final and cannot be appealed against. The 2™ ground herein is therefore of a bad quality and unacceptable as a ground question of law or the jurisdiction of the IRC such that it will revolve-on factual issues which ate not the jurisdiction of the court at this stage. The 2™ ground of 29, 30. T appeal must therefore be dismissed entirely for being a ground.on which an appeal cannot lie to the High. Court from the IRC. Duration of Warning Letter . That the 3" and last ground is in no way different from the 24 ground. Suffice to state that the manner in which the ground has been drafted makes it unclear as to which decision of the. court below it seeks to appeal. In the court below, it was, held as a factual finding that the final warning was still subsisting as valid at.the time of the dismissal as it was effective for a period of 12 months. . That contrary to the finding of the court rt below, the ground of appeal reads, “the court erred on a point of law when it madea finding that the final warning had | expired when in fact the. warning was valid for 6. months as opposed to 12 — _ months”, Clearly, the. ground. of appeal refers toa factual finding the court below 31. did not make and effectively, it. cannot affect anything in the ruling even if the. — court were to entertain appeal o on factual matters, Therefore, the ground must be entirely dismissed for being both a bad and unacceptable ground of appeal being. on ‘factual matters as well as for being: not in reference to any finding of the court below. whether on fact or in law. An appeal ought not to have lied to the High Court’on this gr ound in the first place, Submi ission 32. The Respondent t therefore submits that The e Respondent had a valid reason for dismissing the Appellant based on his own admitted habitual misconduct which . wart. ranted summary dismissal | both in employment law and under his contract of ° “9 33, employment’s conditions of service. The ground must therefore fail entirely. Whether or not there was an over age is a , bad and unacceptable ground of appeal as it is bound to be an appeal on a factual finding of the court below which i is final and binding. That the question of the duration. of the final warning ‘letter is factual question hence bad and unacceptable | for an appeal against a factual finding of the court - be low and the ground herein is a defective ground against a finding not made by “the court below. An appeal. ought not to have lied on the High Court on the — 34, Appellant's second and third. grounds. The appeal ought to and must be . dismissed in its entirety ‘The Finding - — The: facts in this matter are that’ the Appellant who was an employee of the Respondent was found with a shortage of 20 cartoons of powers. it is alleged by the Appellant that a week later he was found with an overage of 21 cartoons. He further alleged that Mr. Msukwa was of the view that there might have been - miscalculations of the figures - in which case the cartons might have been intact 35, and in the warehouse. Despite this he was still accused of the shortage and was. . summoned to a hearing where he was finally dismissed, The question before me is why was he dismissed? Did the, Respondent follow the law. as stipulated i in the Employment Act? The law i is clear in. Section 57 (1) of the Employment Act states as follow; “The employment of an employee shall not. be ter minated by an employer unless there is a valid reason Jor such ter mination connected with the capacity or conduct of the employee OF. based on the operational requirements of the under standing” . Pm mindful ‘that the High. Court in the case of Elizabeth Chakanza Vv. | Agricultural Development and Mar keting Corporation, Civil Appeal No, 17 of 2012 stated that Sections 65 (1) and (2) of the Labour Relations Act are to the- effect that the appellate jurisdiction of the’ High Court is restricted to consider ‘10 36, questions of law or jurisdiction-which an appeal may raise as the decision of the IRC on matters of fact is final and binding. I’m in agreement with the Respondent that if the response can only be applied to the circumstances, factual situation, evidence at hand or inference resulting therefrom, the question is more likely of fact, To put it even more simply, a question of fact involves an inquiry into whether something happened or did not ~ happen. Pm in apreement with the Respondent that the grounds of appeal seeks 37, to reopen before this the appellate court a question of an existence or occurrence "of a factual matter which the court below found as final. . I find that the grounds of appeal as presented and filed cannot be addressed and resolved without the Appellant recreating the factual scenario which was before. the IRC. The position of the law is that a question of law, which the High Court . in its appellate jurisdiction can address, by its nature is answered by an application of principles of inter pretation of the law. The question ‘before’ me is whether the court below correctly applied the law to the facts when it found that there was no evidence adduced by the Appellant that there was an overage which ' took care of the shortage. 38. 39. The Appellant i in my considered view could have called witnesses to wit his colleague Mr. Elias Senda to substantiate the claim that there was an over age which offset the shortage, Since. he failed to do so the court below concluded that there was a shortage which was a misconduct and that the Respondent: was. perfectly entitled to dismiss him’ and that was a valid reason. J havé gone through the lower court’ 's record and the judgment of the IRC and | the grounds of appeal and I come to the informed conclusion that the Appellant _ cannot reopen matters of. fact oft appeal as the High Court is precluded from entertaining an appeal from the IRC ona finding af fact by that court. Ttis'a clear position of the law that such a finding j is final and cannot be appealed against. An appeal does not become one of law just on the mere that.a ground of appeal says the court below erred on a point of law. | te at ~ 40, In these premises and on a balance of probabilities I find that the IRC was within — “the ambit of the law when it found that the dismissal of the Appellant was fair. This appeal was misconceived and | dismissed it in its entirety with costs, I so order Pronounced in. open. Conttat a-Blantyre | in the Republic o on 27 J uly 2022 =} : Go aes “~. Dingiswayo Madise aS ed Judge 12