Moyo v National Bank of Malawi (MSCA Civil Appeal 19 of 2009) [2010] MWSC 19 (11 November 2010)

J UDIUIAKY IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 19 OF 2OO9 (Being High Court Ciuil Appeal No. 1B of 2O0B) BETWEEN: LAMECK MOYO. - AND- . APPELLANT NATIONAL BANK OF MALAWI... ... RESPONDENT CORAM: HON. JUSTICE D. G. TAMBALA, SC, JA HON. JUSTICE A. K. TEMBO, SC, JA HON. JUSTICE E. M. SINGINI, SC, JA Mr. Msuku, Counsel for the Appellant Mr. Chis arrga, Counsel for the Respondent Mr. Balakasi, Officia-l Interpreter JUDGMENT Tambala, J. A. This is an appeal against the decision of KAMWAMBE, J, which dismissed the appellant's appeal against the decision of the Industriai Relations Court. The latter Court had held that the appeliant's dismissa-l from employment by the respondent was not unfair. The facts from which the present appeal arises are that the respondent employed the appellant as a driver in 1998. In L about 2OO4 and whiie performing his duties as a driver he was invoived in an accident in the coLrrse of which he broke his limbs. When he recovered from his injuries he was unable to perform the duties of a driver. The respondent did not discharge him from employment. It treated him with some compassion and fairness by assigning him some work which he could perform in the condition in which he found himself. He was given the responsibility of managing the respondent's fleet of vehicles and was later put in charge of the respondent's fuel pump. In the course of performing his duties relating to the respondent's fuel pump, the appellant was instructed by Mr Mkangala the respondent's warehouse supervisor that during the period between 29th December, 2006 and 2nd January, 2OO7, he should not seil fuel from the fuel pump, because of an impending stock taking exercise. The meter reading on the fuel pump gave 17286.8 iiters as a closing figure. On 2"d January, 2OO7 , Mr Mkanga-la noted some movement of the meter reading. The opening figure carne to 77 331.1 liters, representing a difference of 44.3 liters. Mr Mkangala who gave evid.ence in the Industria-l Relations Court as DW 1 , asked the appellant about the meter reading movement. Eventually they both agreed that the appellant had a shortage of 44.3 liters. The appellant and the witness signed for the shortage in a register. The appellant voluntarily signed for the shortage, acknowledging responsibility for the shortage. The appellant was the sole custodian of the fuel pump key. In the Industrial Relations Court, Mr Samson Likaomba gave evidence for the respondent as DW2. He said that he was an employee of G4 Security and that during the material time he was assigned to work at the premises of the respondent. He said that between 27th December, 2006 and 1"t Januarlr, 2OO7 , he had observed the meter reading on a pump operated by the appellant read 17286,8 liters. But on 1"t January, 2OO7 tb,e appellant came to work and at a certain time the appellalt instructed him to go and buy some 1unch. When he carne back to the appellant's place of work, he noticed that J there was some movement on the meter reading and that the new meter reading was 17337.1 liters. There was a difference of 44.3 iiters. The witness confronted the appellant and questioned him about the difference, but the appeliant denied responsibility for the shortage. The witness decided to report the matter to a Mr Kaneka the boss of the appellant, because the appellant was the only person who ca-lne to work at the place on 1"t January, 2OO7 and he was the sole custodian of the fuel pump k.y. The witness testified that when he went to buy lunch for the appellant he was away from the fuel pump for about one hour. The appellant was later summoned before a discipiinary committee constituted by the respondent. The appellant was asked, during the disciplinary committee hearing, about the fuel shortage. He was given a chance to defend himself. Mr Likaomba DW2 who reported the matter to the appellant's supervisor was not summoned to appear to give evidence before the disciplinary committee meeting. In ground one of the appeal it is argued that the learned judge erred in upholding the dismissal based on a charge which the court itself found to have been defective. The iaw in the Employment Act is clear. For a dismissal to be fair the employer must prove a valid reason entitling it to effect the dismissal; Section 57-11) of the Employment Act. The industrial Relations Court was satisfied that on the evidence brought before it, the appellant was responsible for the loss of 44.3 iiters of fuel from the fuel pump which was under his control and management. That court was satisfied that the appellant stole the fuel. In coming to that conclusion the learned Deputy Chairperson of the Industrial Relations Court stated:- "It is our unanimous uiew that the appellant stole or is the one responsible for the missing fuel. He did not dispute that he indeed came to work on 7't January, 2007 and yet it was a public holiday and there was no uaa there would. be any need. to fuet ana car more so corzsi dering that he ha"d been told" before this that there would be a reconciliation of -fu"I books the follotuing daa. The fact that there u)as no one who caught him red handed tuith the fuel does not necessarily make it a matter of suspicion as the appellant u.rcurd make this court belieue. He utas the only one with the keg to the pump. TLrcre was no woA anAone couId. haue stolen the fuel except him. He ,cknowted.ged the missing fuel from his pump when confronted. sn end January, 2007 and signed for it as euidenced bg DWl." This court, as did the court berow, find s no fault with the manner in which the Industrial Relations Court dealt with the evidence relating to theft of the respondent,s fuel by the appellant. We are satisfied that that court carne to the correct conclusion. The respondent proved to the satisfaction of that court a'u'alid reason entitling it to dismiss the appellant. This court finds no merit or substance in ground ongof the appeal. Ground two of the appeal is that the learned Judge erred in upholding the dismissal which was clearly in breact of the rules of natural justice. Again, the iaw is clear that besides proving a vaiid reason justifying dismissal, the employer must estabiish that the employee was provided with * bpportunity to defend himself against allegations made against nitn. The main complaint by the appellant here is that Mr Likaomba, the security guard u'ho reported him to his supervisor, was not called before the disciplinary committee hearlng and offered to the appellant for cross-examination. The Industrial Relations Court was live to this issue and dea-lt with it very carefuily as the fol1o*irg passage from its judgment d.emonstrates:- "Moreouer it is tite lau that an emploAee need. be giuen a chance to confront tuhoeuer is accusing him of any misconduct. In the present ce.se, the appellant was not giuen this chancq tLte respondent heard. the ) accuser in the absence of the appellant and he only had a cltance to question the accuser in this Court. It ls Ltoweuer ou.r considered uiew that this did not result in ang injustice on the appellant. The euidence on uLtich the allegation of thefi, u)a.s made against the appellant utas not onlg based oft the oral euidence of the guard. It wa.s also euidenced bg the meter readings uLticLt the appellant himself confinned on DWl. TLtus we ere of the uietu that euen if the guard had not alerted the appellant's boss, the opening meter reading on 2nd January, 2007 tpould still Lts-ue reuealed the missing fueL Accordingly the non-questioning of the guard by the appellant is of llo consequence in the present ca"se. The thefi of the fueI uould haue been reuealed ang uaA. Ang contrary holding utould be stretching the principle of procedurq,l fairness to some ridiculous leaels uthich ttould defeat the uthole essence of emplogment laut." EmpLtasls supplied. We strongiy agree, as did the learned Judge in the Court be1ow, w.ith the powerful and elaborate treatment of the principle of procedural. fairness in the context of the facts of the present appeal. Learned Counsel seems to be preoccupied with the mechanical and rigid compliance with the requirement that the right to be heard entails the right to be given a chance to question an accuser. But Counsei must redrze that a rule or a principle which is inflexible and does not aLlow any exception in its application to particular facts would, in certain circumstances, lead to absurdity, injustice and oppression. When the evidence is very clear to the industrial Relations Court. the Court below and this Court that the appeliant stole the property of his employer, he should not be allowed to escape the consequences of such conduct just because a guard urho made a report of some doubtful consequence was not summoned to attend a discipiinary committee hearing. Courts must also guard against the possibility of turning the work place into some o kind of employment tribuna-l. We think that ground 2 of appeal also lacks merit and substance. Ground 3 and 4 of appeal relate to the employers duty to act with justice and equity in dismissing the employee. The relevant provision is section 61(2) of the Employment Act. In the case of the Sugar Corporation of Malawi v. Ron Manda MSCA Civil Appeal No. 7 of 2OO7 this Court observed:- "We agree utith both counsels that the inclusion of sub- section (2) introduces the application of principles o/ equity in the latu of emplogment. We also agree witLt counsel for the respondent that the inclusion of the sub-section is to auoid the mischief tuhereby an employee who maA haue been of good conduct tLtrougLtout his employment moA be dismissed oTL a ground uthich he could uery well haue been pardoned or giuen a lesser punishment than dismis s al. " This Court agrees that section 6I(2) introduces principles of equity, justice and fairness at the work place. But as Kamwambe, J, observed in the present case each case must be looked into depending on its own particular facts. In the instant case the respondent treated the appellant with compassion and fairness when he was involved in a road accident. The respondent paid medical bi1ls for the appellant while in hospita-l. After he was discharged from hospital and he was unabie to carry out his duties as a driver, the respondent, instead of discharging him, redeployed him and assigned him work he could perform. instead of being thankful and discharging his duties faithfully, the appellant chose to steal the very property he was required to safeguard. His conduct amounts to a serious breach of the trust which the respondent expected him to maintain. Does he deserrre to be treated with leniency? The answer is certainly no. It would be untair to expect the respondent to treat the appellant as if he has not committed a serious act of dishonesty against his employer. Before we rest we wish to state that this Court appreciates that it has a duty to correctly interpret and apply section 6I(2) of the Employment Act to ensure that the right of an employee to be treated with equity and justice, within the context of termination of employment, is safeguarded. However, there is clearly tension between section 6I(2) and section 59(1)(a) of the Employment Act. Section 59-(1) provides:- An employer is entitled to dismiss summarily alr employee on the following grounds:- a) where an employee is guilty of serious misconduct inconsistent with the fulfillment of the expressed or implied conditions of his contract of employment such that it would be unreasonable to require the employer to continue the employment relationship. It is the view of the Court that the conduct of the appeliant in this case fel1 within section 59-(1)(a). The employer had a right to dismiss him summarily and in that event the questions of the appellant's right to be given an opportunity to be heard and the right to be treated with justice and equily would be irrelevant. This Court, therefore, finds that grounds 3 and 4 a-re unmerited. The appeal is unsuccessful. As with the Court beiow, we make no order for costs. Delivered in OPen Court on this L2th day of November, 2O1O at BlantYre. D. G. Tambala, SC., JA