Luhanga v Illovo Sugar Malawi Limited (IRC MATTER 96 of 2015) [2019] MWIRC 3 (10 April 2019)

a THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS Court OF MALAWI MZUZU REGISTRY IL. R. C. MATTER NUMBER 96 OF 2015 BETWEEN FALLO LUHANGA 0... ciecceceeeccneeeecesuseeseuuevccusccaueseesecenns APPLICANT ILLOVO SUGAR (MALAWI) LIMITED...........0...00... aecemnacnmnnneweedy ed xeers RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MR KISSA MWAFULIRWA, EMPLOYERS’ PANELISTS ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR WILLIAM CHIWAYA, APPLICANT'S COUNSEL MR BERNADETTA MNYANGA, RESPONDENT COUNSEL MR. W. MWENELUPEMBE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant was employed by the Respondent in June, 1998 and rose to the position of Warehouse Supervisor on 1% July, 2011. He was deployed at the Respondents Luwinga Depot in Mzuzu. In 2015, the Respondent alleged that the applicant had failed to account for 202 bales of brown sugar as at 24th March, 2015. The said shortage spanned from 2nd July, 2014 to 24th March, 2015. The applicant was summoned for disciplinary hearing and was found guilty and summarily dismissed. The applicant appealed against the decision but the Appeals Committee upheld the dismissal. The applicant then instituted these proceedings claiming damages for unfair dismissal; one month notice pay; severance pay; overtime allowances; and pension benefits. 2. ISSUES TO BE DETERMINED (i) Whether the applicant's dismissal was un fair; (ii) Whether the applicant is entitled to all or any of the reliefs sought herein. 3. THE EVIDENCE The applicant was the sole witness to testify on his case. We will not republish/repeat his testimony. The same shall only be referred to in the analysis of the evidence where necessary. Just to that state he tendered his witness statement with some documents attached there to which he adopted fully, as part of his evidence. The said witness statement was marked as exhibit FL and the attachments to it as accordingly marked in the witness statement. On the part of the Respondent, three witnesses were registered, namely, Edward Nthala, Kenwood Chitsonga — Mataka and Sheilla Lunguzi. However, only the first two witnesses appeared and testified in this Court. They also adopted and tendered their witness statements. Thus, the witness statement of Sheila Lunguzi is not evidence to be considered by this court in making the determination of this matter. However, documents which were attached to her witness statement and were referred to by witnesses herein, will be considered where necessary. 4, THE APPLICABLE LAW (A) BURDEN AND STANDARD OF PROOF The law is to the effect that it is for the party alleging the truthfulness of a particular fact to prove the same. A party discharges the onus when it adduces evidence showing on a balance of probabilities that the assertions are correct. See Kachale v Alisa Ashani & others, Civil Cause Number 33.6 of 2009. commenting on burden and standard of proof in civil cases, Tembo AJ stated at page 281 in the case of Savaswamy -v- Agason Mofers Lid (1992) MLR 274 that: “Tremind myself of the evidential rule that he who asserts must prove the claims and not he who denies. The effect of the rule is that the obligation of satisfying the Court on the issues rests upon the party who asserts the affirmative of the issue. On the standard of proof required for the purpose, the plaintiff should be entitled to the verdict if the evidence establishes a preponderance of probability in his favour, that is to say, if he persuades me of the fact that his version of the facts is more probable than that of any or all the claims he made against the defendant or indeed in respect of the counterclaims against him by the defendant” 5. ON UN FAIR DISMISSAL For this claim to be proved, the applicant must show that his dismissal did not conform to the provisions of section 57 of the Employment Act. The evidence must show that there was no valid reason for the applicant's dismissal and or that he was not given an opportunity to defend himself against the allegations (s). Having a valid reason for dismissing an employee means that there must be sufficient evidence against the employee and that the misconduct complained of must be of such gravity as to warrant his/her dismissal. As stated in the case of Mahowe -v- Malawi Housing Corporation, Civil Cause No. 3687 of 2002 that the court must look at the reasons given for termination of employment and the act of misconduct to determine if the termination was justified. Before dismissal from employment, an employee ought to be made sufficiently aware of the charges against him. He is supposed to be given a decent chance to put a cross his side of the story. See Illovo Sugar Company Lid - v- Phiri, Civil Cause No. 60 of 2008 (HC). The applicant ought to have knowledge of the charge against him which must be particular enough to enable the employee prepare his defence. See. The state -v- Council of the University of Malawi exparte Msukumwa (H. C) Misc. Cause No. 50 of 2006. In addition to being given an opportunity to bring forth his defence, the employee ought to be given an opportunity to cross - examine his accusers where necessary to his defence. See Wadabwa - v — Union Transport Matter No. IRC 151 OF 2001; Kwisongole and ofhers - v - Toyota Malawi Ltd, civil Cause No. 3071 of 2000; Khoswe -v- National Bank of Malawi (2008) MLLR 201. Section 58 of the Employment Act provides that a dismissal is un fair if it is not in conformity with section 57 or is a constructive dismissal pursuant to section 60. Section 59 of the Employment Act provides as follows: (1) An employer is entitled to dismiss summarily an employee on the following grounds:- (a)Where an employee is guilty of a serious misconduct inconsistent with the fulfilment of the expressed or implied conditions of his contract of employment such that it would be un reasonable to require the employer to continue the employment relationship; (2) In sub section (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. Section 61 of the Employment Act provides: (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 providing 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. 6. ANALYISIS OF THE EVIDENCE IN RELATION TO THE APPLICABLE LAW. The applicant herein is alleging that he was unfairly dismissed as he was not aware of the reason he was dismissed and that he was not given an opportunity to defend himself against the allegation levelled against him. The Respondent's contention is that the applicant was made aware of the reason he was dismissed for and that he was given every opportunity to defend himself against the charges. To that end the applicant’s dismissal was fair. (i) VALIDITY OF REASON FOR DISMISSAL The applicant herein was a warehouse supervisor. That is not in dispute. The evidence before the court is that his primary responsibility was to manage the sugar stock in the warehouse. He was responsible, among other things, for ensuring that stock in the ware house was safe by identifying and correcting dangers and hazards that can lead to loss of stock and that sugar stocks are in order and fo account for all the stock when necessary. When there was a shortage, it was the applicant's duty to identify the source of the shortage and report the same. On his employment, the applicant knew he had to ensure stock is in order and to protect the stock from loss. Between the period of 24 July, 2014 to 24th March, 2015, a total of 2002 bales of sugar worth K2, 130,397.04 went missing under the applicant's supervision. The applicant had a duty to supervise tally clerks. The challenges that the applicant attributed to the loss should have been reported to Head office. He did not do everything is his power to take control of the warehouse as was required by his employer and to that end he was negligent and failed to discharge his duties. The applicant's letter of appointment outlined grounds for dismissal. One such ground was serious misconduct. The massive loss of sugar under his watch and failure to give a proper account of the sugar is sufficient reason to dismiss an employee. To that end it is found that the Respondent had a valid reason for terminating employment relationship with applicant. (ii) OPPORTUNITY TO BE HEARD From the evidence, the applicant was well aware of the charge that was made against him. The applicant received an invitation to a disciplinary hearing which was detailed enough to alert the applicant of what charge he will be answering and he submitted a statement on the charges prior to the hearing. See exhibit KCM 2 The notification went further to alert the applicant that the required standard is fo make sure that he accounts for each and every bale of sugar under his care. He was given a chance to bring witnesses in his defence but he said he did not have any. The applicant was given opportunity to confront his accusers. Despite all this, the applicant did not satisfactorily account for the missing sugar to the committee. On the allegation by the applicant that the Respondent substituted the charge of failure to account for 202 bales, with one of failure to account for 20 bales, this court observes as follows: Though this is the basis of the applicant's claim that he was not given an opportunity to be heard, the premise is faulty. From the notes of the disciplinary proceedings, the charge laid against the applicant throughout the hearing was that of 202 bales. The charge did not change to one concerning 20 bales and it is not true that he was dismissed on the basis that he had allowed the 20 bales to be taken out of the warehouse. Our closer reading of the Report is to the effect that the 20 bales were mentioned as part of the evidence against the applicant to show that the applicant, as a warehouse supervisor, was grossly negligent and notin control of the warehouse. The applicant had an opportunity to appeal against his dismissal. Even at the appeal, he failed to satisfy the appeals committee that the decision to dismiss him was based on 20 bales of sugar. The applicant also attriouted the loss of the sugar to the previous warehouse manager. However, it was his duty at the time he was taking over the warehouse, to ensure that a proper handover of stock was done. He was supposed to ensure that the stock on record is what was in the warehouse. His failure to do this shows that he was not serious and was negligent in that regard. In addition, leaving keys to the warehouse with people who were not responsible for managing the warehouse, amounted to an abdication of his responsibility. It was irresponsible resulting in the loss of sugar herein. On his appeal, the panel found that the applicant did not bring any evidence to show that his dismissal was unwarranted; not even in this court. The evidence before this court shows that the applicant was in all circumstances treated with equity and fairness in the circumstances. He was accorded an opportunity to defend himself and to confront his accusers before the decision to dismiss him was made. (iii) ON NOTICE PAY The applicant herein is not entitled to any notice pay. Section 59 (i) of ihe Employment Act entifles an employer to summarily dismiss an employee where the employee is guilty of serious misconduct inconsistent with the fulfilment of the conditions of his employment contract. As already alluded to above in the applicable law, summary dismissal is a dismissal without notice or with less notice than the one an employee is entitled to. To that end, the applicant having been summarily dismissed the order of notice pay cannot be made. (iv) SEVERANCE PAY Severance pay is only payable where the employee was unfairly dismissed from employment as per section 35 of the Employment Act. Where dismissal is fair, severance is not payable. (v) OVERTIME PAY If there is any overtime that accrued to the applicant, he would be entitled to the same since the same is payable regardless of whether he was fairly dismissed or not. The applicant has submitted that prior to his deployment to Mzuzu Distribution Centre, i.e, prior to July 2011, ihe applicant was being duly paid all overtime allowances. However, for the period from July, 2011 to July, 2014 the same were not being given to him. He tendered a pay slip for April, 2015, marked as FL 1, to prove that he was getting over time allowances. To that end this court order that the same is to be assessed by the Assistant Registrar. (VI) PENSION CONTRIBUTIONS The applicant's pension is payable by the Respondent but by his Pension Fund Administrator. The applicant is entitled to apply.for a payment of his pension upon oroof that he stayed without employment for more than six months upon his dismissal as per the provisions of the Pension Act, 2011. 7. CONCLUSION It is this court's finding that the applicant was fairly dismissed. There was a valid reason for the applicant's dismissal. The applicant was also accorded an opportunity to be heard and defend himself. In the premises, the applicant's claim ought to be dismissed to the extent of the court's findings. Any aggrieved party has got the right to appeal to the High Court within 30 days from the date here below as per the provisions of section 65 of the Labour Relations Act. MADE This 10! Day of April, 2019 at Mzuzu. K. D MLUNSGU DEPUTY CHAIRPERSON MR KISSA MWAFULIRWA EMPLOYERS’ PANELIST MR ALEXANDER LUNGU EMPLOYEES’ PANALIST