Msowoya and 3 Others v Chibuku Products Limited (IRC MATTER 15 of 2018) [2019] MWIRC 5 (2 July 2019)

OO7T3AZ DL AOU THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 15 OF 2018 BETWEEN JOBSON MSOWOYA &THREE OTHERS...............s0ccceecceeseeees APPLICANTS CHIBUKU PRODUCTS LIMITED ................0.cccccsssssseeeeseeeeeenees RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS' PANELISTS MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST APPLICANTS / PRESENT / UNREPRESENTED MR WESLEY MWAFULIRWA, RESPONDENT'S COUNSEL MR. HEZRONE MHONE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicants herein, Jobson Msowoya, Aubrey Mshane, Wins Maunde and Faston Banda commenced the present action claiming Compensation for unfair dismissal. The applicants and the Respondents in their evidence agreed on the following facts: (a) That the applicants were called for disciplinary hearing three times but they decided not to attend the said hearings because they had criminal proceedings going on in the Magistrate’s Court: (6) That the applicants’ main basis of their present action is that they were acquitted on the criminal charges they were accused of in the said Magistrate’s Court. 2. LEGAL ISSUES FOR DETERMINATION (a) Whether or not the disciplinary hearings can and could have ran concurrently with the criminal proceedings; (fb) Whether or not an acquittal in criminal proceedings is in itself evidence of unfair dismissal; 3. THE APPLICABLE LAW 3 (i) The Constitution Section 43 of the Republican Constitution provides as follows: “Every person shall have the right to- (a)Lawful and procedurally 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) be furnished with reasons in writing for administrative action where his or her rights, freedoms, legitimate expectations or interests if those interests are known In the case of Chawani V. Atforney General (2008) MLLR 1 (S. C. A) the Supreme Court of Appeal held that the purpose of section 43 “.+. is clearly to ensure transparency in decision making where the decision is likely to infringe the rights, freedoms, interests or legitimate expectations of others. Section 43 was also intended to enable persons affected by administrative actions to have adequate opportunity to defend themselves effectively. A person would be able to present a good and effective defence fo an administrative action when he knows the reasons supporting the action” 3 (ii) The Employment Act Section 57 (1) and (2) 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 a termination connected with the capacity or conduct of the employee or based on the operational requirements (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 58 of the Employment Act provides that: “A dismissal is unfair if it is not in infirmity with section 57 or is a constructive dismissal pursuant to section 60” Section 61 of the Employment Act states 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 way 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 all circumstances of the case, he acted with justice and equity in dismissing the employee" In the case of Banda V. Lekha (2008) MLLR 338, the IRC stated that fair Labour Practices entails the right to know the reason for dismissal and the right to have an opportunity to explain one's side and defend oneself. In addition, the court held that it is the duty of the employer to show that the dismissal was lawful! and justifiable on a balance of probabilities. And in the case of Polkey V. AE Dayton Services Ltd (1987) 3 All ER 974 at 983, the House of Lords held that: “ An employer having prima facie grounds to dismiss will in the majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural,’ which are necessary in the circumstances of the case to justify fhat cause of action. Thus, in the case of incapacity, an employer will normally not act reasonably unless he gives the employee fair warning to mend his ways and show that he can do the job and in case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation" The court went on to explain as follows: “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 the court must decide whether the employer who discharged the employee on fhe 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” In the case of Kabambe V. Cargomate Limited IRC Matter Number 53 of 2001 _ the court held as follows: “Disciplinary proceedings involve finding out from the employee what he knew about the allegations and asking him to defend himself if he could. It is after this process is concluded that an employer can take disciplinary action including dismissal." 3 (a) Disciplinary Proceeding Versus Criminal Proceedings A. H Mhone in his book, Labour Law in Malawi, 2012 observed as follows: “Criminal proceedings; a number of issues arise if the employer alleges that the conduct of an employee amounts to a criminal offence. Parallel processes may take place where the employee faces disciplinary and criminal proceedings arising from the same facts. The guiding principle is that such proceedings are separate and independent of each other such that they may take place simultaneously" The author then quoted the case of Chalu V. N. B. S Bank Ltd IRC Matter No. 12 of 2010. Where the IRC while commenting on suspension observed that the employer does not have to wait until the Police case is over for them to carry out their own internal disciplinary proceedings. The suspension should, therefore, not depend on the outcome of the criminal proceedings. For this reason, an employer will not be justified in keeping an employee on suspension pending the outcome of criminal proceedings. The author went on as follows: “In practice a disciplinary hearing will usually be concluded earlier than a criminal trial .... In terms of the outcome of a criminal trial i.e., whether the employee is convicted or acquitted, the same has little bearing, if any, on the disciplinary hearing. It is settled law that an employee who has be an acquitted by a court may either be dismissed or reinstated depending on whether the alleged acts constitute misconduct. A criminal trial is different from a civil trial. More importanily, the burden of proof is more onerous in a criminal trial than if is in a civil trial, which is a kin to a disciplinary hearing. See Justice Chimasula Phiri’s sentiments in Namasula V. Wood Industries Corporation Ltd (1993) 1 MLR 162; see also Justice Jere’s comments in Kajumon V. People’s Trading Centre Ltd (1978) 9 MLLR 123 at 136, See further Mwafulirwa V. Southern Boftlers Ltd (1991) 14 MLR 316 and the IRC decision in Patel V. Malawi Posts Corporation IRC Matter NO. PR 639 of 2011.” Thus in Mangwiyo V. Finance Bank Malawi Ltd (in liquidation) IRV Matter NO. 235 of 2003, the court held that the applicant’s refusal to attend a disciplinary hearing because of criminal proceedings against him was wrong and a decision made in his absence to dismiss him away was upheld. 3(b) Employee's Dismissal versus Police Investigations In Kasama v. Bata Shoe Company Lid IRC Matter NO. 235 of 2003 the court stated that it was legally incorrect to dismiss an employee basing on police reports as the police were carrying out criminal investigations and not employment misconduct. Issues of employment are dealt with by the employer and not by a third party, namely, the police. The Respondent was supposed to carry out its own investigations and hear the applicant before dismissal. A police officer should not be allowed to conduct the disciplinary hearing on behalf of the company. And in Kabambe v. Cargomate (supra) the court held as follows: “An acquittal in a criminal court on similar charges as those for which an employee is dismissed does not affect the dismissal. The reason is that the standard of proof in criminal court is higher than in an employment disciplinary proceedings. Therefore it becomes more difficult to convict in a criminal court even where the accused had committed the offence.” “Further, criminal proceedings are different from employment proceedings because in the latter there is loss of trust and confidence in its employee, it is difficult to retain an employee in employment. This is why the employer is entitled fo terminate the services of the untrust worthy employee.” 4. ANALYSIS AND FINDINGS (a)In the present matter, the principles of natural justice were dully adhered to. The applicants were duly given an opportunity to be heard. (b) About three times they were called for disciplinary hearing but they chose not to attend. (c)The applicants voluntarily waived the right to be heard and the Respondent cannot in any way be heard liable for this. See Mangwinyo case (supra) (d) The Respondent terminated the applicants’ employment contract having found the applicants in the wrong based on the evidence before it. See Mangwiyo case (supra) (e)The fact that the applicants were acquitted on criminal charges levelled against them does not mean that they could as well be found not liable in the disciplinary proceedings as the two work on different standards of proof; the criminal one being on the higher side. See Kabambe V. Cargomate (supra) §. CONCLUSIONS The applicants’ dismissal herein was fair as the Respondent duly accorded them the right to be heard but they voluntarily waived it. As such this court has no other option but to dismiss the applicants’ claim in its entirety. Any aggrieved party has got the right of appeal to the High Court within 30 days from the date here under as per the provisions of sections 65 of the Labour Relations Act. H/H K. D MLUNGU DEPUTY CHAIRPERSON Dated This 2"¢ Day of July, 2019. MISS C. T. NYIRENDA (MISS) EMPLOYERS’ PANELIST HirinssoAcn MR ALEXANDER LUNGU EMPLOYEES’ PANALIST