Kalambo v Paladin (Africa) Limited (IRC MATTER 1 of 2014) [2019] MWIRC 2 (4 December 2019)

ae “oul CF tt, LC, U ccc dud \ % ie Be a £U LIBR B12 caste sas, a THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI SITTING AT KARONGA MZUZU REGISTRY 1. R. C. MATTER NUMBER (KA) 01 OF 2014 «EN WELL KALAMBO ...... sisiscanereycavensnnnnendaicnineererssweeneemmene APPLICANT PALADIN (AFRICA) LIMITED .............0. cee eeeeeeeee eee eeeueees RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELIST MR ALEXANDER B. LUNGU, EMPLOYEES’ PANELIST MR WILLIAM CHIBWE, RESPONDENT'S COUNSEL APPLICANT/PRESENT/UNREPRESENTED MR WASHINGTON MWENELUPEMBE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant was employed by the Respondent as a Guard at Kayelekera Mine in Karonga. On 5 January, 2014, the applicant was assigned to guard at the Mswanga Post area and during that night a battery and two drums went missing. On 27%) January, 2014, the applicant appeared before a disciplinary panel on a charge of gross negligence for sleeping on duty. The applicant was summarily dismissed on the same day after being found guilty of the said charge. The applicant now contends that the dismissal was not fair and seeks damages for the same. The Respondent submits that the claims herein are baseless and must be dismissed by this court on the following grounds: {a)That the applicant was given a notification of disciplinary hearing scheduled on 27th January, 2014 on a charge of gross negligence of duty by sleeping on duty on 5! January, 2014; (b) That on the scheduled date the applicant appeared before a disciplinary panel and he admitted / or pleaded guilty to the said charge and on totality of the evidence against him, the disciplinary committee recommended to the Management that the applicant should be dismissed. (c) That fhe Respondent had a valid reason to dismiss the applicant: (d) The Respondent afforded the applicant a right to be heard as required by the law and that there were valid reasons being gross negligence of duty. Therefore the Respondent denies that it dismissed the applicant unfairly and as such he is not entitled to any reliefs sought herein. Further to that and in the alternative the Respondent pleads that if the dismissal is held to be unfair, their contention will be that there was no mitigation of the loss by the applicant. 2. LEGAL ISSUES TO BE DETERMINDED (i) Whether there was a valid reason for the applicants dismissal: (ii) Whether the applicant was afforded the right to be heard prior to his dismissal or not. 3. THE APPLICABLE LAW According to section 57 of the Employment Act, the employment of an employee cannot be terminated without a valid reason and without affording the employee an opportunity to defend himself. See also Majawa V. Auction Holdings Ltd |RC Matter No. 25 of 2001. Further, section 61 of the Employment Act provides that: (1) In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair. (2) In addition to proving that an employee was dismissed for reasons stated in section 57 (1), an employer shall be required to show that in alll circumstances of the case he acted with justice and equity in dismissing the employee. An employer has to show that an employee is guilty of the alleged offence ona balance of probabilities as Justice Chimasula Phiri said in Sokalankhwazi v Sugar Corporation of Malawi (2004) MLR 356 at 360: “The law does not exhaustively lay down conduct which entitles an employer to terminate employment or the extent of such conduct. The fact that the law requires that there be a valid reason for the termination of employment casts the burden of proof that such a reason exists on the employer. The employer must set about identifying the reason for dismissal. After showing the reason for the dismissal, the onus still remains on the employer to prove the reason for the dismissal.... The standard of proof required for a reason for dismissal is that of probabilities. The employer has to show that an employee is guilty of the alleged offence on a balance of probabilities. An employer is not under an obligation to refrain from dismissing any employee until the conduct is established beyond reasonable doubt: Conways v. Mathews Wright and Nephew Limited (1976) Eat (cited in Bowes Egan’s book, Dismissal” 1977 p.159 It is trite that an employer is entitled to summarily dismiss an employee when he is guilty of serious misconduct. See section 59 (1) (a) of the Employment Act. In the case of Meja V. Cold storage Company Limited 13 MLR 234 which was cited with approval in Benson Kusowera_ V. National Bank of Malawi (2006) MLR 41 (SCA), the High Court stated as follows: “Beside the statutory provision there is an abundance of case authority stating precisely the same thing that an employer is entitled to summarily dismiss an employee where the employee is guilty of misconduct or does anything wrong incompatible or inconsistent with the fulfillment of the express or implied condition of his duties” And in Mandebvu V. Nationwide Market Services Matter No. IRC 458 of 2007 (unreported), the Court agreed with the sentiments of the Court in the case of Ulaya_V. SDV (MW) Lid Matter No. IRC 133 OF 2001 (Unreported) that gross negligence of duty is a valid reason warranting summary dismissal. The Court had this to say: “Gross negligence is an act of misconduct warranting summary dismissal; see Ulaya V. SDV (mw) Lid. In the instant case the applicant was given several warnings to do what he was employed to do, that is, update bin cards but to no avail. The bin cards were an important source of information for purposes of carrying out stock taking and audit exercises. The Court therefore agreed with the Respondent that the conduct of the applicant was gross negligence and warranted summary dismissal. Again, the employer is called upon to act with justice and equity in dismissing the employee. See section 61 (2) of the Employment Act. Justice and equity depends in each individual case. As it was stated in Ron Manda _ V. The Sugar Corporation of Malawi (2006) MLR 384 at 392; per Kamwambe, J,: “It is important to demonstrate justice and equity in dismissing the employee by careful analysis of all the circumstances of the case. This means the decision arrived at must bear in mind the circumstances. In other words the circumstances must fit the decision so that one will not claim that the justice of the case was missing. One ought not question the decision because it does not tally with all the circumstances of the case. This is why each case oughi to be decided on its peculiar facts Generalization is not the rule here.” And in considering whether the reason for dismissal is valid, the previous warnings given to an employee may be taken into account even in circumstances where such warnings were unrelated to the misconduct under consideration. Learned author Edwards M. ed., “Dismissal Law: A practical Guide for management”, 1991, Kogan Page, London at 126 —- 127 stated as follows: “Consultation and warnings are relevant in a number of different cases including dismissals for misconduct. An employer is entitled, moreover to have regard in a misconduct case to the fact that the employer has received a previous warning in deciding whether or nof to dismiss. This is so even where, the previous warning related to behavior which, was different from that which is the potential basis for dismissal” So the Court in Kachingwe V. Shire Bus Lines IRC Matter No. 18 of 2000 concluded as follows: “In the instant case, the applicant admitted to have been warned on two previous occasions for misconduct. These two warnings were not related to the misconduct that caused the dismissal. However, an employer is entitled to consider previous warnings in determining an employee's misconduct case. It follows that a court can consider those factors in determining whether the employer acted fairly in dismissing the employee” A 4. ANALYSIS OF THE APPLICABLE LAW IN RELATION TO THE EVIDENCE Applying the applicable law to the evidence herein, this court proceeds as follows: e The applicant as a guard was supposed to be alert at all material times to ensure that the Respondent property was safe. The evidence clearly shows that on the material day, a batiery and two drums went missing under his watch and only realized of the same in the morning when the supervisor came to inspect the place. e Further to the above, before the applicant's services were terminated, he was duly heard in that the applicant was given a notification for the hearing which contained the charges or allegations of gross negligence for sleeping on duty; A disciplinary hearing by a duly constituted panel took place and the applicant was accordingly found guilty. e Prior to this incident, the applicant had already been warned on three occasions. First, he was issued with a verbal warning for being frequently late for duties. Secondly, a final written warning was then issued for the offence of sleeping on duty and lastly he was found ignoring his area of responsibility and was accordingly counselled for the same. Despite all this, the applicant eventually was found guilty on the charge herein boardering on substantial neglect of his duties as a guard. e Taking these findings into account and the fact that a battery and two drums went missing whilst the applicant was on duty, one cannot fault the decision of the Respondent herein to dismiss the applicant as in the whole analysis of the evidence in relation to the applicable law show that the Respondent herein acted with justice and equity in the circumstances of the case. Accordingly it is found by this court that the Respondent had valid reasons for terminating the applicant's services summarily as he committed an act that was inconsistent with the express and implied conditions of his employment. As such we hold that the applicant's services were lawfully terminated in fair and equitable circumstances. Therefore there is no case for unfair dismissal herein and all the applicant's claims are dismissed in its entirety. Having found that the dismissal was unfair and that the summary dismissal herein was properly made, the applicant is not entitled to severance pay and notice pay as per sections 35 (6) (b) and 59 (2) of the Employment Act. Made This 04!) Day of December, 2019 at Karonga K. D MLUNGU DEPUTY CHAIRPERSON MISS C. T. NYIRENDA EMPLOYERS’ PANELIST MR ALEXANDER LUNGU EMPLOYEES’ PANALIST