Manda v Kawalazi Estate Company Limited (IRC MATTER 34 of 2017) [2019] MWIRC 7 (15 August 2019)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY 1. R. C. MATTER NUMBER 34 OF 2017 BETWEEN LASCO UMANDAS: occ ceennesnmemnneunmemenesuueeavesnieene yp gieweee eres UATE APPLICANT KAWALAZI ESTATE COMPANY LIMITED.................. 02s cecene seen eens RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELIST MR ALAXENDER LUNGU, EMPLOYEES' PANELIST APPLICANT/PRESENT/UNREPRESENTED ROTAM J. MANDA, RESPONDENT REPRESENATATIVE "MR. HEZRONE MHONE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant commenced the present action alleging unfair dismissal and therefore claiming damages thereof, terminal benefits and withheld salary. 2. THE EVIDENCE 2.1 APPLICANT'S EVIDENCE In his evidence, in brief, he stated that he was employed by the Respondent Company as an Assistant Driver in 2000 and rose to the position of Driver on 2n¢ October, 2016. He went on to say that in the course of his duties, he was dismissed from employment on allegations that he stole 10 litres of fuel (diesel) after he was summoned for a disciplinary hearing which was done in unfair manner as he was not given time to prepare for his defence neither was he allowed fo appeal the dismissal verdict. During Cross — examination, he stated he was arrested for stealing fuel on 34 August, 2016 and the Security Personell took him to show them the fuel he had stolen. He said he was not recorded any staiement by the security people and he was summoned for the disciplinary hearing but he disputed that he admitted the offence both at the Security Department and at the Disciplinary hearing but he acknowledged that theft is an offence at the Respondent's Company. 2.2 RESPONSENT’S EVIDENCE Mr Rotam Jonah Manda the Assistant Human Resources Manager for the Respondent testified that the applicant was recruited on 15! September, 2012 as a General Labrourer and then promoted to Assistant Truck Driver position before he graduated to a Full Truck Driver. He went on to say that on 3 September, 2016, asecurity guard of the Respondent confronted the applicant whilst he was carrying two jerrycans of diesel to fhe volume of ten litres which was believed to have be siphoned from the Tractor used by the applicant at field number 10 where he was assigned to ferry some woods. The security guard tried to seize the said jerry cans but she was overpowered and he fled with the fuel and never reported for work until 8!" August, 2016. He went on to testify that the applicant was then told by his supervisor to meet with the Security Personell for the recording of his statement by Mrs Witness Chirwa which he did and admitted that he only stole five litres due to financial problems and he asked for forgiveness. Mr Manda then tendered this caution statement as part of his evidenced and also the Attendance Register to prove that the applicant reporied for duties on 8th August, 2016 from the 3 day of August, 2016. The witness continued to say that when the issue was reported to him, he referred it to the Disciplinary Committee for a hearing which was to be conducted on 9th August, 2016 but was shifted to 16" August, 2016. He said that the applicant admitted to have stolen only 5 litres and he prayed for forgiveness as he did so due to financial problems. However, management resolved fo have the applicant's services terminated. He concluded by saying that the applicant was paid his terminal dues but he refused it saying the matter was in court. Mr manda tendered other documents like the invitation letter, the minutes of Disciplinary hearing, the termination/dismissal letter and the letter of Re- employment dated 315! August, 2012 apart from the Payroll sheet. During cross — examination, he stated that the one who arrested the applicant was not present in court due to sickness and that the applicant admitted stealing the diesel both at the Security Department and during the disciplinary hearing. He went on to say that the applicant was represenied by the Trade Union members and that the applicant signed on the caution statement which was recorded by the Security Officer but read and explained to the applicant for his understanding and appreciation. 3. THE APPLICABLE LAW 3.1 ON BURDEN AND STANDARD OF PROOF Ordinarily, the burden of proof lies on a party who substaniially asserts the affirmative of the issue. Or put in other words, on a party who asserts the truth of the issue in disoute. And the party has to adduce sufficient evidence to raise a presumption that what is claimed is true. See Commercial Bank of Malawi V. Mhango, Civil Appeal NO. 8 of 2001. In Kumalakwaathu t/a Accurate Tiles and Building Centre V_ Manica (Malawi) Limited, Civil Appeal NO. 57 OF 2014, the Supreme Court stated as follows: “Standard of proof for the matters in the IRC is fhe 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 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 ‘e.i incumbif probation guid cot not qui negat’ This essentially means that the burden of proof lies on fhe party 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, occurrence of the event was more likely than not. See Re D. (2008) 3.2 ON UNFAIR DISMISSAL Sections 58 of the Employment Act states that “A dismissal is unfair if it is not in conformity with section 57 or is a constructive dismissal pursuant to section 60” Thus from both sections 58 and 57 (1) and (2), it is clear that if the employer provides the employee with both valid reasons for the termination of the contract of employment and an opportunity to be heard before the employment is brought to an end, what would otherwise have been unfair dismissal becomes a fair termination of the contract. As it was stated in the case of Friday Gibson Fote V. Limbe Leaf Tobacco Company Ltd, IRC Matter No. 156 of 2009, per N’riva, J, (then Deputy Chairperson) that: “For this claim to succeed there must be a dismissal. For a dismissal not to be unfair, the reason for dismissal has to be valid and the employee has to be accorded an opportunity to defend herself. Section 58 of the Employment Act is the authority for this proposition. If the opposite is the case, the dismissal is unfair. That is to say, unfair dismissal is where the reason for dismissal is not valid. The reason could be untrue or a mere sham. Secondly, a dismissal is unfair if the employee was not accorded a chance fo defend herself. In short, before a dismissal, the employer must hear the employees’ side of the story with the aim of defending herself as practicably and reasonably possible. Fairness has two limbs and these are, procedural fairness (the right of fhe employee to be heard) and the substantive fairness, that is, the genuineness of the reasons for dismissal” Under section 61 (1) of the Employment Act, the burden of proving that the reason for dismissal was valid lies on the employer. Sub section (2) reads as follows: “ In addition to proving that an employee was dismissed for reasons sfated 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 Singini V. B. C. A Bestobell Malawi, Matter No. IRC 274 OF 2002, the court held as follows: “Where there is an allegation of dismissal, the burden is on the employer fo show that there was a valid reason for the dismissal and that fhe employer acted with fairness before dismissal. The employer must substantiate the reason in court. In fhe absence of such proof, there is a conclusive presumption that the dismissal was unfair. (Section 61 of the Employment Act). 4 4. ANALYSIS OF THE LAW AND THE EVIDENCE The applicant is denying being recorded any statement by the Security People and also that he admitted having stolen the fuel both at the Security Depariment and at the Disciplinary hearing. He however admit having signed a new contract on 1st September, 2012 with the Respondent Company. This new contract is the one which has been tendered by the Respondent's witness and is marked as RGM 6. On the said R. G. M 6 there is a name or a signature of Lasco Manda written in full When we come to exhibit R. G. M 2, which is the said caution statement there is a signature of Lasco Manda also written in full but different from the one on RMG 6. With regard to the invitation letter to the disciplinary hearing dated 8h August, 2016 and marked as exhibit R. G. M 3 there is no any signature of the applicant accepting service of the same. And when we consider exhibit RGM 4 which is the alleged report of the disciplinary hearing held on 16" August, 2016, it will be noted that the consents are not compatible with the evidence tendered by Mr Rotam Manda for the Respondent in this court apart from the fact that the applicant admitied the offence. Thus, subjecting to scrutiny the entire evidence to the applicable law discussed above, it will be seen that the Respondent has failed to sufficiently adduce evidence as to the validity of the reason for the applicant's dismissal. The basis for the applicant's dismissal being the siphoning of fuel which is theft and as per the Company's Conditions of Service, an offence, the Respondent had the onerous duty of proving this fact before this court on balance of probability, considering that the applicant denied admitting to the charge. Further, as already alluded fo, ihe report of the Disciplinary hearing has material contradictions with the evidence of the Respondent's witness, Mr Rotam Manda in as far as the events and the theft of fuel narrative is concerned. To that end this court has got no other option but to find for the applicant that he was unfairly dismissed and as such the Respondent ought to compensate him and also pay him his terminal dues which as per the Respondent's witness own concession was not paid to the applicant because he refused to get them when offered to him as he said that the matter was in court. Any aggrieved party has got the right fo 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. MADE This 15" Day of August, 2019 af Mzuzu. H/H K. D MLKUNGU DEPUTY CHAIRPERSON A MISS C. T. NYIRENDA (MISS) EMPLOYERS’ PANELIST ZO Mt. 4 MR ALEXANDER LUNGU EMPLOYEES’ PANALIST