Kamanga and Another v Carlsberg Malawi Limited (MATTER NUMBER IRC 29 of 2014) [2021] MWIRC 1 (10 March 2021)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY MATTER NUMBER I. R. C. 29 OF 2014 BETWEEN ISAAC KAMANGA &BELLINGTON SINGINI..............ccccceccecsscaeseeee APPLICANTS AND CARLSEBERG MALAWI LIMITED ...................00c.cccccceecceeseeeeeenerees RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELIST MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR WILLIAM CHIWAYA, APPLICANT'S COUNSEL MR EVANCE MBOTWA, RESPONDENT'S COUNSEL MR HEZRONE MHONE, COURT CLERK JUDGMENT ' 1. INTRODUCTION The 15 applicant was employed by the Respondent on the 27th of November, 2007 as a Production Loader and during his employment he occupied the positions of Syrup Maker, Class G Driver and finally Delivery man, a position he occupied until he was dismissed by the Respondent on 18! December, 2013. The 2"¢ Applicant was employed as a Delivery man on 20! April, 2010 until he was summarily dismissed on 18 December, 2013, The 1% applicant was dismissed on the ground of neglect or improper performance of duties while the 2°¢ applicant was dismissed on the ground of unauthorized or unlawful possession of company property. 2. BACKGROUND FACTS The facts leading to the applicants’ dismissal are that on 30! October, 2013, the 1s applicant after making a count of his products by a method called Stripping, where he counted a row multiplied by a column, decided to ask for a physical count in which the products would be counted one by one since on the previous trip he had encountered a shortage and he wanted to find the cause of the shortage. The physical count request was granted by the Logistics Auditor, Mr Hudson Kalua where upon a re-counting exercise revealed that the Ist applicant's load was missing one case of 2 Litres orange squash and he was given another case as a replacement and the Ist applicant went on to make his deliveries. After the 1st applicant went outside the company premises to do delivery, a Mr Cosmas Jussa reported to the Logistics Auditor that he had seen the 1 applicant removing the 2 litres orange squash case and putting it into the 2nd applicant's truck. As such, upon receiving this tio off, Mr Kalua decided to recheck the 24 applicant's load before he left to make his deliveries and it was discovered that the 24 applicant had one extra case of 2 litres orange squash in his lorry and when he was confronted, it is the resoondent's testimony that he could not provide a plausible explanation for the discovery. A month later the applicants were summoned for a disciplinary hearing on 18th November 2013 whereupon the Respondent charged the 1st applicant with three counts namely, dishonesty, providing false evidence and improper performance of duties. The Disciplinary Committee found that there was no evidence for the first two counts and dismissed the charges but found him guilty on the third count since this amounted to loss of trust and confidence by the respondent in him due to his connivance/collusion with the 2nd applicant to misappropriate the case of orange squash. The 2°¢ applicant was charged with three counts as well, the first one being dishonesty, the second, removal of one case of the Respondent's products off fhe company’s premises and the third one being unauthorized or lawful possession of the company property without documentation. He was not found guilty on the first two counts but on the third one and was accordingly dismissed. 3.0 THE EVIDENCE 3.1 THE APPLICANTS’ EVIDENCE The 1st applicant gave evidence orally and tendered his witness statement which had attachments there to and this Court marked it as exhibit I. K and the attachments as accordingly marked in the witness statement. He was 2 then subjected to cross- examination by the Respondent's Legal Counsel and was then re-examined by his lawyer. The 24 applicant also gave evidence orally and fendered his witness statement which had attachments to it in sUpport of his case. The same was marked as exhibit BS and the attachments as accordingly marked in it. He was also subjected to cross — examination and was also re-examined. 3.2. THE RESPONDENT’S CASE The Respondent paraded three witness namely, its Assistant Human Resources Manager, Olive Sikwese, its Logistics Auditor, Mr Hudson Kalua and the Warehouse supervisor, Mr Manson Chomo. The Court will analyse the evidence of both parties when analyzing the applicable law to the evidence. 4, THEISSUE Whether the applicants were unfairly dismissed by the Respondent or not 5. THE APPLICABLE LAW Section 58 of the Employment Act, 2000 states that 'A dismissal is Unfair if it is not in conformity with Section 57 or is a constructive dismissal pursuant to Section 60.’ Section 57 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 employee or based on the operational requirements of the undertaking. (2) The employment of an employee shall not be terminated 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 59 of the Employment Act, 2000 provides: (1}An employer is entitled to dismiss summarily an employee on the following grounds. (a) Where an employee is guilty of serious misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment such that it would be unreasonable to require the employer to continue the employment relationship. (6) Habitual or substantial neglect of his duties. 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 proving that an employer was dismissed for reasons stated in Section 57 (1), an employer shall be required to show that in all circumstances of the case he acted with justice and equity in dismissing the employee.” 6. ANALYSIS OF THE APPLICABLE LAW IN RELATION TO THE EVIDENCE The starting point is Section 57 of the Employment Act which provides for three reasons that entitle an employer to dismiss an employee. These are reasons relating to the employee’s conduct, reasons relating to the employee's capacity and reasons relating to the operational requirements of the employer. Section 58 provides for situations when a Court may find that a dismissal was unfair. On substantive fairness, we are basically talking of the reason (s) for dismissal and proof thereof {s.61 (1). It is not enough to simply allege that the employer has a valid reason for dismissal. The employer must establish that the reason was justified. In Mahowe v. Malawi Housing Corporation, Civil Cause No. 3687 (unreported) the High Court stated as follows: “The Court usually examines the reason given for termination of employment and the act of misconduct and try to find if the termination is justified. If the reason is not supported by the evidence, the Court may conclude that there was no justification for the plaintiff's dismissal.” In the instant case, though the 1st applicant was charged with three counts, namely dishonesty for collusion; dishonesty for giving false evidence, erroneous or misleading information and neglect or improper performance of duties, disregard of specifications, he was only found guilty on this third count. Minutes of a Disciplinary Hearing Report held on Monday, 18th November, 2009 exhibit HK10, on page 5 it is stated as follows: “CONCLUSION In conclusion the panel found Mr Isaac Kamanga guilty of neglect, improper performance of duties, and disregard of specifications with his own admission that on this particular day, he did not perform to the expected stand (2) for discovering the shortfall of one case of orange squash after signing his papers with Logistics Auditors (after recounting exercise. RECOMMENDATION The panel unanimously recommend that Mr Isaac Kamangabe issued with a Final Written Warning in line with our conditions of service, clause 14.4 (h). | subscribe to the recommendation.” signed R. O Matola and M. N Nkosi (Human Resources Officer (NR) and (CASOTU Representative respectively) Coming to HK11, which is the dismissal letter addressed to the 1st applicant Mr Isaac Kamanga from the Human Resources Officer (NR) and dated December, 18, 2013, the same is as follows: “DISMISSAL FROM COMPANY SERVICE Further, to the disciplinary hearing you attended on 18th November, 2013, management has decided to dismiss you from company service with effect from 18" December, 2013, for loss of trust and confidence; whereby on 30th October, 2013, you colluded with your fellow Delivery man, Mr Bellington Singini to take out one case of 2 litres orange squash without documentation but he was caught at the main gate.” Signed R. O Matola. Before we conclude with the 1% applicant, let us now come to the 2nd applicant. The 2°¢ applicant BellingtonSingini though he was charged on three counts, namely, dishonesty for collusion, removal of one case 2 litres orange squash from company premise, and unauthorized/uniawful possession of company property, he was only found guilty on the 3'¢ count. Minutes of a Disciplinary hearing in his respect marked as OS10 states as follows: “CONCLUSION In conclusion the panel found Mr Belington Singini guilty — of Unauthorized/unlawful; possession of company property (one case of 2 litres orange squash) at the main gate without documentation with his own admission during the hearing that he was indeed found with one extra case of 2 litres orange squash after initial physical counting, after signing all papers and it was stacked on top of mineral products. RECOMMENDATION The panel unanimously recommended that Mr Bellington Singini be summarily dismissed from employment in line with our conditions of service clause 14.6 (d). | subscribe to the recommendation.” Signed R. O Matola and M. N Nkosi, This is also the reason appearing on the 2nd applicant's letter of dismissal dated 18th December, 2013 and signed by R. O Matola, Human Resource Officer (NR), tendered in this Court and marked as exhibit OS 11. Reverting to the first applicant, it will be noted that the charge for which the applicant was dismissed as per the dismissal letter was not proven during the disciplinary hearing and as such he was acquitted or discharged on that one. In the above cited case of Mahowe, the Court proceeded fo say as follows: “It is for the employer to show that reason for dismissal. If there is more than one reason for the dismissal, he must show the principal reason for dismissal. The reason must be a substantial reason of a kind such as to justify the dismissal and it is for the Court to determine whether the employer has acted reasonably in dismissing for the reason which is determined in accordance with equity and the substantial merits of the case. Smith v. Hayle Town Council (1978) 1LR 996." Again, in the case of Shoprite Trading Limited v. Jokings Cement and Others, Civil Appeal, No.20 of 2012 (HC), (PR) it was held by Kamwambe, J. that when Section 61 (1) of the Employment Act is read with Section 57, we may safely conclude that the parliamentarian was deliberately protecting the employee who was in a weaker bargaining position and that the employer no longer enjoys the liberty to dismiss an employee at his pleasure without consequences. The Courts are implored to search for a reason, and for that matter, a valid reason for dismissal which will avoid punishment for paying compensation. We have analysed the evidence and we have observed that the Respondent and the applicants are agreeable on the fact that it was acceptable for Delivery man or it was within their rights, to request a second count of the products by physical counting to confirm if the quantity was as stated in the forms delivered to them by the warehouse and the Logistics Auditor. Both parties are agreeable to the fact that there are instances where shortages or overages can be found on the trucks loaded by the warehouse. So, such being the case, the action by the 15! applicant to ask for a recount is not a proof on its own of neglect or does not amount to neglect of his duties. In Singini v. B. C. A Besfobell Malawi, Matter No. IRC 274 of 2002, the Court held that: “Where there is an allegation of dismissal, the burden is on the employer to show that there was a valid reason for dismissal and that the employer acted with fairness before dismissal. The employer must substantiate the reason in Court. In the absence of such proof there is a conclusive presumption that the dismissal was unfair (Section 61 of the Employment Act....' We accordingly find that the dismissal of the first applicant was unfair for lack of valid reason and as such he is entitled to the remedy of compensation as prayed for in his IRC Form 1. The ground for dismissal in the dismissal letter was not proven and the 1s! applicant was discharged or acquitted on the same. Coming back to the 2" applicant, we refer to the case of Chisowa v. Ibrahim Cash and Carry, (2008) MLLR 385 (IRC) where, R. Zibelu Banda, then D. C. P., quoted Chimasula Phiri, J. in Mahowe case, supra, in which he held as follows at page 29 of the transcript. i. “ The Court in determining whether the reason for dismissal is justified may examine if the plaintiff was the one who was in charge of the transaction alleged to be the reason for dismissal.” It is in evidence which has not been disputed that while the vehicle is on company premises and the driver has not driven it out using a Gate Pass, the products are in the custody of fhe Respondent. As such only when the 2nd applicant had left with the products, were they to be treated as being in his custody. The evidence of the 24 applicant of having gone to pick/drop some of the Respondent's staff has not been discredited including that of picking a quarrel or a disagreement with Jussa, his truck helper. As such the allegation by the 294 applicant that it can be this Jussa who planted this case cannot be entirely ignored and so is that of just being an overage especially regard being had to the mode of loading of the products in the truck in the present matter and at night by the warehouse staff. In Kumalakwaanthu t/a Accurate Tiles and Building Centre v. Manica Malawi Limited, Civil Appeal No. 57 of 2014 (M. S. C. A), The Court stated as follows: “Standard of proof for matters in the Industrial Relations Court is the same as that which applies in all civil cases, a proof on balance of probabilities, The legal burden of proof for civil case is that the facts must carry a reasonable degree of probability, but not so high as required in criminal case. If the evidence is such that the tribunal can say: “we think it is more probable than not,” the burden is discharged; but if the probabilities are equal, itis not. A well settled principle of ancient application is ei incumbit probation quid cot not qui negat.’ This essentially means that the burden of proof lies on the pariy alleging a fact of which correlative rule is that he who asserts a matter of fact must prove but he who denies it need not prove it. In contested actions, a party succeeds whose evidence establishes a preponderance of probability or a balance of probability in his favour.” The balance of probability standard means that a Court is satisfied an event occurred if the Court considered that on the evidence, the occurrence of the event was more likely than not. See RED (2008). In Chisowa case, supra, he applicant was dismissed and she suspected it was on account of her pregnancy as she had just returned from her maternity leave. The applicant challenged the dismissal alleging that the reason for her dismissal was not valid. The Respondent on the other hand argued that the applicant was not an employee and further that there had been thefts at the Respondent's shop and some employees had already been dismissed on the basis of the thefts. The Court considered, inter alia, the Respondent's defence relating to the thefts that had taken place. The Court found that the decision to terminate the applicant’s employment was arrived at without following any proper procedures and held that it was imperative for the Respondent to make thorough investigations in relation to the specific involvement of the applicant in the theft. The Court then examined foreign case law as confirmation of the international standards to be used when handling dismissal for misconduct and quoted the case of British Home Stores Ltd v. Burchell (1978) IRLR 379 EAT where the Court held that: “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 an Industrial Tribunal has to decide whether the employer who discharged the employee on the ground of the 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 if. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. And third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.” See also Polkey v. AE Day Services Lid (1978) 3 ALLER 974. The Court held in this Chisowa Case that the reason advanced by the Respondent was not valid. It was not shown by the Respondent when the theft took place and when it was discovered. The Respondent made sweeping statements which did not connect the applicant to the theft as it held a suspicion only of the applicant's involvement in the theft. That the Respondent didnot show on a balance of probabilities that it had carried out the procedure enunciated in the Burchell case and that it did not prove ona balance of probabilities that it had carried out investigations that revealed the applicant's connection to the theft. As such, the dismissal was unfair for want of justification. In the instant case, the three elements discussed above with respect to the 2°9 applicant would have been as follows: Did the Respondent have a reasonable suspicion amounting to his guilt that he had in his possession company property. The Respondent being tipped about it did indeed raise suspicion. When the orange squash case was found in his vehicle, the applicant had in his mind reasonable grounds upon which to sustain that suspicion/belief. However, the Respondent failed to carry out as much investigation into the matter as was reasonable in all the circumstances of the case. This is evidenced as below: (1) The Respondent found as a fact that Jussa and the 2nd applicant picked a quarrel and was dropped from the applicant's vehicle and afterwards reported to the Logistics Auditor that the 2nd applicant had an extra case of orange sobo squash in his vehicle. (2) The Respondent stated in evidence that throughout the 2nd qpplicant’s interrogation he maintained that he knew nothing about the extra case in question. Later on after some days he heard that when Mr Jussa was dropped from his vehicle, he reported that the applicant had an extra case and as such he suspected that it was Mr Jussa who had put the extra case in his vehicle. (3) The Committee Chaiperson in his disciplinary hearing report, exhibit HK11, raised a doubt as to the late reporting of Mr Jussa to Mr Hudson Kalua that”... may be Jussa revealed the malpractice because he was bitter with Singini's decision to drop him from his vehicle on_ this particular day. To make matters worse, he was dropped after cleaning both vehicles of Kamanga and Singini.” These set of findings would have made the Respondent not to believe in the 29 applicant's guilt at first instance but rather to make as much as investigations into the matter as was reasonable in all the circumstances of the case as there was two possibilities as to the finding of the overage of the case in question, namely an error by the warehouse or the planting by Mr Jussa or anyone else. This is especially so, when the committee did not find both applicants guilty of collusion. So, with regard to the position of the law, in answering the question as to whether the reason was valid to necessitate adinissal, the Court in Ifaye v. Malawi Distilleries Ltd, Matter No. IRC 25 of 2001, stated that the answer to such a question can be found by considering factors raised in Polkey V. AE Dayton Services Ltd, supra, at 983, where the House of Lords quoted with approval the following factors of Neil L. J sitting in the Court of Appeal in the same case (1987) 1 ALLER 984 at 989: “Where an employee is dismissed for alleged misconduct and he then complains that he was unfairly dismissed, it is to be anticipated that the industrial tribunal will usually need to consider (a) the nature and gravity of the alleged misconduct, (b) the information on which the employer based his decision, (c) whether there was any other information, which that employer should have obtained or any other step which he should have taken before he dismissed the employee.” Further, Viscount Dilhorne in W. Devis & sons Ltd v. Atkins (1977) 3 All ER 40 at 47. (1977) AC at 953 had this to say on the considerations: “If however, the reasons shown appear to have been a sufficient reason, it cannot, in my opinion, be said that the employer acted reasonably in treating it as such if he only did so in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient.” Thus, bringing the entire evidence to scrutiny with the applicable law,this Court opines that the reason for the applicants’ dismissal could not be supported with the available evidence and further that it was not justified. The Respondent has failed to discharge its burden of substantiating the reason (s) for the applicants’ dismissal as per Section 61 (1) of the Employment Act. Above all, the Respondent in dismissing the applicant did not act with justice and equity as per the dictates of Section 61 (2) of the Employment Act as it failed to obtain and appreciate other information relevant in this case and did not take further steps or conduct further investigations in light of the circumstances of the whole case. Accordingly, it is found that the applicants herein were unfairly dismissed and should be compensated for the same. Any aggrieved party has got the right of Appeal as per Section 65 (2) of the Labour Relations Act. 10 DELIVERED this 10% March, 2021 at Mzuzu. K. D a DEPUTY CHAIRPERSON C. T NYIRENDA EMPLOYERS’ PANELIST re 7 ee 0 ALEXANDER LUNGU EMPLOYEES’ PANELIST 11