Chipeta v Registered Trustees of St Johns Hospital (IRC MATTER 2 of 2014) [2019] MWIRC 4 (13 June 2019)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY . R. C. MATTER NUMBER 02 OF 2014 BETWEEN INNOCENT CHIPETA .......0.... 0. cece cece cence eset eeeeeenees ee APPLICANT AND REGISTERED TRUSTEES OF ST JOHNS HOSPITAL ..............46 eigaranccacuomenecne RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELISTS MR ALEXANDER LUNGU, EMPLOYEES’ PANEL'ST MR GEORGE J. KADZIPATIKE, APPLICANT'S COUNSEL MR EVANCE MBOTWA, RESPONDENT'S COUNSEL MR. HEZRONE MHONE, COURT CLERK JUDGEMENT 1. INTRODUCTION The applicant commenced this action against the Respondent claiming damages for unfair dismissal. The applicant in his statemeni of claim alleges, inter alia, that in or around tne month of November, 2013, the Respondent orally invited him to a disciplinary hearing on allegations of unauthorized use of internet password and consequently he was dismissed from employment. He argues that this dismissal did not relate to performance of his core duties for which he was employed. The applicant further argues that the Respondent breached his right to be heard in that it did not notify him in writing about the disciplinary hearing and the charges he was to answer as required by the law. He also argues that the cffer letter of employment explicitly provided that the applicant will be on probation for six months yet after the lapse of the said six months ne was still on probation, the conduct which amounts to unfair laoour practice. The Respondent in its defence in Industrial Relations Court form 2 denies all the allegations set out by the applicant in IRC Form 1 and argues that the applicant was fairly and lawfully dismissed from his employment on grounds of misconduct, incompetence and insubordination; that before the applicant was dismissed, the Respondent duly complied with all procedural rules under the Malawi Labour Laws; that the dismissal of the applicant was the appropriate punishment because the misconduct herein involved breach of trust so that it would have been un reasonable for the Respondent to retain the applicant in its employment and further that the applicant was on probation and the Respondent fairly terminated the contract of employment when it realized that the applicant had grossly misconducted himself. 2. ISSUES TO BE DETERMINED (i) Whether the applicant sued the wrong party cr not; (ii) Whether or not the applicant herein was on probation at the time of ine termination of employment; (ii) = Whether or not the termination of employment herein amounts to unfair dismissal warranting awarding of damages; _ (iv) Whether the disciplinary hearing infringed the appiicant’s right to be heard; 3. THE APPLICABLE LAW A. Probationary Period Section 26 (1) of the Employment Aci provides as follows: In a contract of employment in respect of a skilled worker, the parties may ~ agree on the duration of the probationary period: Provided that the period shall not, in any event, exceed twelve months. (2) During a probationary period, a contract of employment may be terminated at any time by either party without notice. B. Unfair Dismissal (i) THE EMPLOYMENT ACT Section 58 of the Employment Act provides that: A dismissal is unfair if it is not in Conformity with section 57 or is a constructive dismissal pursuant to section 60. The said section 57 of the Employment Act provides: 1. 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 ernployee or based on the operational requirements of the undertaking. 2. The employment of an employee shall not be terrninated 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 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. In addition to proving that an employee was dismissed for reasons stated in section 57 (1), 2. An employer shall be required to show that in all circumstances of the case he acted with justice and equity in dismissing the employee” (ii) |§ The Republican Constitution Section 43 of the Republican Constitution provides: “Every person shall have the right to (a) Lawful and procedural fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and (b) Furnished with reasons in writing for administrative action where his or her rights, freedoms legitimate expectations or interests if those interests are known. Sections 31 (1) provides that “Every person shall have the right fo fair and safe labour practices and fo fair remuneration” 4. ANALYSIS OF THE EVIDENCE AND THE LAW At the very outset, this court would like to state that the requisite standard of proof in employment cases is that of proof on a preponderance of probabilities. See Securicor (Malawi) Ltd V. Central Poultry Ltd (1995) 1 MLR 250 (H. C) Mtambo J. explained what preponderance of probabilities entail in the case of Chikhasu (An Infant) v. Paliani (1995) 1 MLR 60 (H. C) when he said: “The case is to be decided on the preponderance of probabilities: if the evidence is such that the tribunal can say “we think it is more probable that not", the burden is discharged, but if the probabilities are equal, it is net” as per Lord Denning in the case of Miller V. Minister of Pensions (1947) 2 ALLER 372. So basically, this court, in this analysis, it is being calied upon to weigh and determine the applicant’s and the Respondent's cases and determine which one is more probable or consisient with the truth vis- avis- the applicable law. (i) On whether or not the Respondent is the Proper Party herein; In the present case, the applicant commenced this action against Registered Trustees of St John’s Hospital and the hearing proceed with this name throughout up to the closure of the case pending written submissions from both parties. It is in the written final submissions of the Respondent thet they have argued that there is no any legal person or entity with such a name, nence there are no proper parties before this court hence no judgment can be cbiained in the absence of a necessary party. On this aspect this court proceeds as follows: The applicant and the Respondent negotiated and reached an agreement to set aside the default judgment and to amend the name of the Respondent. The applicant filed an amended IRC Form one and served the same on the Respondent who then filed IRC form two for their pleadings. The Respondent amended IRC Form two never contained the issue of their name as one of the issues they were desirous of the court to determine during the irial but were focused on defending that they had fairy terminaied the applicant's employment and issues to do with the merits of the case. It was stated in the case of Yanuyanu V, Mbewe (P. B) arid (M. M) Mbewe, M. S. C. A 10 ALR. Mal. 417, per Jere, J. “The purpose of pleadings is to identify issues in dispute and if is only those issues that can go for hearing. The whole object of pleadings is to bring parties to an issue and the meaning of the Rules of Order 19 was ta prevent the issue being enlarged which would prevent either party from knowirg, when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is fo nail the parties to defini‘e issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing”. In the case herein, the Respondent having not raised the issue of the name during their IRC Form 2 defence and having had a lot of opportunities to do so including during the pre-conference hearing as per Rule 12 (2) (b) of the IRC (procedure) Rules, cannot be allowed to do so at this juncture as the Respondent acquiesced in defending the matter the way it was. The inordinate delay in bringing this issue should not stop this court from seeing to it that substantial justice is done. (ii} On whether or not the applicant herein was on probation at the time of the termination of his employment, We proceed as follows: Probation conditions are covered by section 26 of the Employment Act. In this Provision, a key word “the parties may agree on the duration of the probationary period” stands out in sub - section | and the proviso is that *... shall not, in any event exceed twelve months” Thus, employment being a contract, it entails an agreement between the parties in the terms of such a contract and any change (s) in the terms need to be agreed upon by both parties. The question which is to be asked on this aspect, is, did the Respondent agree with the applicant his probation would be extended after the initial agreed period? Is there any evidence to that effect and whether the said evidence has been proved fo the requisite standard or not? In answering these set of questions, it would be prudent for this court to look at the exhibit marked CPC - 1 referred to in the witness statement of Mrs Charity Chimkono, the Principal Hospital Administrator of the Respondent’s institution and enquire whether the termination letter referred to the termination herein as the termination based on the probationary period or not. By sub- section 3 of section 26 of the Employment Act, ‘probationary period’ an employee’s contract may be terminated at any time by elther party without notice. A look at exhibit CPC, has referred to the issue of the applicant being on probation. It has also talked of St John’s Hospital Policy chapter 2-2 b (3). The applicant's counsel has submitted and he has not been discredited in this that the said Policy in chapter two page 7 provides as follows on Probationary Period. . (a)One month before the end of the Probationary Period. the Supervising Officer shall complete a confidential report on the employee “recommending one of the following: 1. Confirmation of the appointment when the employee has performed well. 2. Extension of the period for maximum three mon‘hs if the probationer has not satisfied the superviscr fully but is likely fo do so in the extension period. 3. Termination of the appointment where performance was below standard and unlikely to improve. (b)A letter of confirmation of the appointment, or extension of the probation period, or termination of employment shall be sent to the employee with a copy to the management of the employee's personel file. Going through the evidence adduced before this court, it is observed that the Respondent did not abide by the Policy herein governing employees on probation. Mr Wilson Simwanza, the Supervisor of the applicant in his witness statement stated that he communicated the resolution of the broad extending his probationary period. However this piece of evidence is devoid of substantiating material. There are no minutes of such a resolution tendered before this Court. Neither is there the report that Mr Simwaza wrote before the end of the applicant's probationary period nor the written Communication that was supposed to be given to the applicant regarding the extension and copied to management. To that end it is found that the Respondent has ‘failed to discharge the evidential burden of satisfying the Court that their version of the story is more probable than not. The failure to communicate is fatal to the Respondent's case as it operates to confirm the employee as it was discussed in the case of Mbwana V. Blantyre Sports Club civil cause No. 1133 (Uunrep). The High Court in this case held that where a probationary period has been set, an employer shall not extend it beyond the agreed period without the consent of the employee. It is implied that the employee is confirmed in employment if she or he continues to work after the expiry of the Probationary Period. Further, an employee on probation is entitled to the right to know the reason for dismissal or refusal to confirm him/her in employment and has the right to be heard. See Sheha V. Malawi Revenue Authority. hatter Number iRC 113 of 2002. It is submitted that this is in conformity with section 43 the Republican Constitution. (iii) On whether the Disciplinary hearing infringed the Applicant's right to be heard, we proceed as follows: The evidence of the Respondent is that they organized a disciplinary hearing and the applicant admitted the charges against him and they terminated his employment. The applicant contends that the Resoondent called him to the room without telling him or informing him the charges and his rights in advance. To support their contention that this was unfair, the applicant cites the case of Mchawi V. Minister of Education, Science and Technology (1999) MLR 167, where Justice Kumitsonyo as he then was said:- “On the right to be heard, Lord Hodson had this to say on the common law position in the case of Ridge V. Baldwin and others (!963) 2 All ER Cé at 114.” If it be said that this makes natural justice so vague as to be in applicable, | would not agree. No one, | think, disputes that three features of natural justice standout” (1) The right to be heard by unbiased tribunals; (2) The right to have notice of charges of misconduc? and; (3) The right to be heard in answer to those charges; The right to be heard is therefore compelling in Malawi when what Lord Hodson said in the case of Ridge V. Baldwin and others (supra) is read alongside section 43 of the Malawi Constitution Kumitsonyo J, emphasized that this “right is expressly written and protected by section 43 of the Malawi Constitution” He thus went ahead to analyse the questions a Court has to ask itself in order to ascertain whether ihe right to be heard was up held and he stated: “The questions which | must pause now for answers are as follows: (1) Was the applicant given notice in writing of charges of his misconduct? (2) Was he charged of the offences of such misconduct? (3) Was he heard in answer to those charges by unoiased and independent tribunal? My findings are that the answers to all these three questions are in the negative. The applicant had not been given notice in writing of the charges of his misconduct. Neither was he charged with the offences of such misconduct nor was he heard in answer to those charges in defence of himself before an unbiased and independent tribunal. The applicant was not given an opportunity to prepare his defence and to defend himself”. The court then went on to find as follows: “I find therefore that the minister did not give the applicant a fair hearing when he made his decision.” In the instant case, the Respondent has conceded that the notice of hearing herein was not in writing but it was communicated orally on phone to the applicant requesting him to meet the panel in the room where it was. On the justification for requiring the charges to be weil cornmunicated, Mtambo J, succinctly put it as follows in the case of Masupayi and Others V. Council of the University of Malawi (1994) MLR 181 (HC): “The whole idea, if | may emphasise, is to be told fully, aiid | think well in advance, of the charges for the obvious reasons that one prepares oneself and is not taken by surprise at the hearing if one is fo explain one’s side of the story meaningfully” Critically analyzing the components of the right to fair trial as expounded in the two cited cases and relate them to the facts regarding the disciplinary hearing herein, we note as follows in agreement with the applicant's submission: The charges stated in the applicant’s termination of service letter are so technical to be communicated via the phone. Further, there are inconsistencies in the Respondent's witness statements as fo what actually the applicant was charged with: the termination letter states that he disobeyed instructions given by a person having authority to give instructions and attempting to perform an act which might conflict with the Policy of the Hospital. While the witness statements say that he was charged with accessing a password without permission and threatening the Principal Tutor, the termination letter stated that the applicant forced the Principal Tutor to give him the password. Thus, these inconsistencies shows that there is confusion and doubt as to what charges the applicant was communicated to in the phone entailing that he could not have prepared well if at all he was to say anything meaningful during the hearing. Corollary, it can be argued as the applicant is doing, that the confusion shows that the charges were written later on by the personnel writing the termination letter. To that end it is found the disciplinary hearing was conducted in a manner which infringed the applicant's right to be heard (iv) On whether there was a valid reason for the termination of _the applicant's contract of employment: this court proceeds as follows: The main reason for the termination of the applicant’s services as siated in the termination letters is that the applicant was dismissed for failing to get instruction from the one who is able to give instructions. However, this reason is against the weight of evidence tendered before this court which is to the effect that St Jonn College of Nursing is an independent institution from the Respondent herein. This is very clear from the evidence of MR Mbakaya, the Deputy Principal of the college who stated that ne has never invited the applicant to teach at the college and no one can teach at the college without peing officially invited to do so. This being the state affairs it is surprising that the applicant was expected to report and indeed to get instructions from the College and in particular from Mr Mbakaya. This observation makes sense if we have regard also to tne evidence of Mr Winson Simwanza who stated that he was the immediate boss/supervisor of the applicant and no evidence has been proffered that he cisobeyed Mr Simwanza’s instructions. Thus, it becomes difficult to see where the applicant committed the act of insubordination to since it is aqoparent that Mr Mbakaya was not the one to be issuing instructions to the applicant but Mr Simwaza. To that end, it can be concluded, on this aspect aione, that the charge of disobeying instruction from a person having authority to give instructions is misconceived, unjustifiable and invalid. It was incumbent upon the respondent to prove that the applicant was guilty of the charge against him and that the conduct complained of did occur. See Sokalankhwazi V. Sugar Corporation of Malawi Ltd (2004) MLR 358 (H. C), where Chimasula, J, as he then was held that: “The standard of proof required 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.” . Furthermore, even if the conduct alleged at the other instituticn was to be considered, sufficient evidence would have been laic before this court to the requisite standard. As such, it is evident that the dismissal of the applicant was instigated by the instruction of an independent institution, namely, St John’s College of Nursing other than the Respondent. Finally, it has been submitted by the applicant that the act complained of was not one that could be said to have repudiated the contract of employment. To that effect, the applicant cites the case of Mahowe V. Malawi Housing Corporation (2004) MLR 177 (H. C) where the court stated as follows: “Sometimes the employer can terminate the employment of an employee due fo a single act of misconduct. In such ascenario the issue will revolve around whether the servant’s breach of contract was repudicaiory and whether it was sufficiently serious to justify dismissal. That depends on the circumstances. See — Laws V. London Chronicle (indicator newspapers) Ltd (1959) 2 AER 285 and Witson V. Racher (1974) 1 CR 8. If not justified, the dismissal is wrongful.” The applicant thus argues that the reason which would justify dismissing the applicant herein would need to be connected with his duties as a Laboratory Technician to wit, was he unable to competently execute his duties on that post, in that capacity. From the evidence herein, the Respondent had failed to state which areas the applicant was lacking in on that capacity so as to justify the issue of his extended probation. Again it has just throw in the allegations of misconducis in a generalized manner. This, we agree with the applicant can be interpreted to mean that the Respondent was just doing this to justify its oppressive aciion of not confirming the applicant on his job, a conduct which is against section 31 of the Republican Constitution. This Court therefore finds that the dismissal was done without a valid and justifiable reason contrary to section 57 and 58 of the Employment Act and as such it amounted to unfair dismissal. To that end, the applicant is entitled to the remedy of damages as prayed for in his statement of claim, IRC Form 1. Any aggrieved party has the right of appeal to the High: Court 30 days from the date here under as per the provisions of sections 65 of tne Labour Relations Act. MADE This 13" day of June, 2019 at Mzuzu. VES K. D MLU vy U DEPUTY CHAIRPERSON aa C. T NYIRENDA (MISS) EMPLOYERS’ PANELIST MR ALEXANDER LUNGU EMPLOYEES’ PANALIST