Tembo v Chaser Construction and Engineering Limited (IRC MATTER 7 of 2016) [2019] MWIRC 8 (23 August 2019)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 07 OF 2016 BETWEEN MATHEWS TEMBO sen cscssegeenenexensenoreneenenentensesannennesemneneneeneaiae APPLICANT AND CHASER CONSTRUCTION & ENGINEERING LIMITED.................. RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELIST MR ALAXENDER LUNGU, EMPLOYEES’ PANELIST APPLICANT/PRESENT/UNREPRESENTED MR. HEZRONE MHONE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant was employed as a Security Guard by the Respondent Company on 14th June, 2009. He commenced the present action seeking damages for unfair dismissal and terminal benefits from the date he was dismissed in November, 2015 on allegations of theft at his workplace. 2. EVIDENCE AND ARGUMENTS The Respondent in its defence in IRC Form 2 prayed for the dismissal of the action saying that the applicant's dismissal from employment was grounded on a valid reason namely negligence in the discharge of his duties which negligence which led to Chaser Construction and Engineering Company suffering loss. They went on to argue that the fact that the applicant was acquitted by a court of law does not in any way affect the validity of the ground on which the applicant's dismissal was based since the court of law cleared the applicant of a criminal charge of breaking into a building and committing a felony therein and not negligence. The applicant contended during cross — examination that he was not given a chance fo state his side of the story before he was dismissed. He also stated that he was working 13 hours instead of 8 hours for the entire period and probationary period was 14" June, 2009 to 15! January, 2015. He also admitted to have been paid severance pay, Notice Pay, leave pay and transport fee for 2015 but claimed that there was a balance of K138, 500.00 for guarding a Paladin Africa Trailer which was kept at the Respondents premises. When asked by the Employees Panelist, he said that interrogation took place at the Police Station by the Police Officers during statement recording and after the court case was over, having been acquitted, he was not called again at the office for a hearing. The Respondent's witness, Mwayi Mbale who is the Respondent's Secretary testified that when the applicant was acquitted by the court, they waited for him to come to the office for three days and when he finally did report, Lilongwe Office wondered why it took him so long to do so and as such he was suspected to still being involved in theff and as such management did not allow him to proceed to work for the company and therefore he was given his terminal dues from 14th June, 2009 to November, 2015. Shen then tendered a bundle of documents to prove this payout and the court marked it as Exhibit Respondent 1. When asked for clarification from the Employers’ Panelist, the witness indicated that abscondment of three days entails a forthright dismissal unless an employee notifies the company through someone or some form of communication as to the reasons. 3. LEGAL ISSUES TO BE DETERMINED (i) Whether the criminal proceedings were conclusive in as far the Disciplinary Charges proferred against the applicant were concerned, i.e., whether the Respondents were bound by the courts determination in acquitting the applicant on criminal charges; 2 (ii) Whether the applicant was unfairly dismissed or not; (iii) | Whether the applicant is entitled to any more terminal benefits or not. 4. APPLICABLE LAW ANALYSIS IN REATION TO EVIDENCE. 4.1 DISCLIPLINARY ACTION VIS - AVIZ CRIMINAL PROCEEDINGS It is trite law that parallel processes may take place where the employee faces disciplinary and criminal proceedings arising from the same sets of facts. The guiding principle as stated in the case of Chalu V. N. B. S. Bank Ltd IRC Matter No. (PR) 12 of 2010 is that such proceedings are separate and independent of each other such that they may take place simultaneously. A. H Muhome in his book, Labour Law in Malawi (2012) submits at P. 72 as follows: “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 been acquitted by a court may either be dismissed or reinstated depending on whether the alleged acts constitute a depending in whether the alleged acts constitute misconduct. A Criminal trial is different from a civil trial, which is a kin to a disciplinary hearing. See Justice Chimasula Phiri's sentiments in Namasasu v. WICO Lid (1997) 1 MLR 162. This being the position of the law, the applicant's contention that his acquittal in the criminal case was conclusive and that the Respondent could not act on the facts again is misconceived. The Proceedings could have made sense if the applicant was attacking the manner or verdict of the Respondent's investigations, but from the evidence and arguendos before this court, the applicant has no issues with the manner the same were carried neither does he disoute the verdict of his employers that his acts amounted to negligence resulting into the theft of the assorted goods of the Respondent hence the allegation of the misconduct herein. 4.2 ON UNFAIR DISMISSAL It is trite law that an employee may be dismissed on grounds of misconduct. As to what amounts to misconduct, the Employment Act is silent. However, the list includes dishonesty, fraud, habitual absenteeism, refusal to take lawful orders amongst other things. See Sikwese R. Labour Law in Malawi, Lexis Nexis (2010) p. 80. The law however provides that an employee shall not be dismissed on grounds of misconduct without affording him or her a chance to defend himself against the misconduct allegation. See section 57 (2) of the Employment Act. In the instant case, the applicant has argued that he was not accorded the right to be heard where as the Respondent submits that the said right was accorded to the applicant. Now, the applicant having raised the issue of not being accorded the right to defend himself, it was incumbent Upon the Respondent to adduce evidence to the contrary that in actual fact the said right was accorded to the applicant. The Respondent ought to have done so by providing evidence on the balance of probabilities that the applicant was accorded the right to defend himself. This is not the case. The only evidence is that the applicant appeared to his workplace after three days and was confronted as to his failure to report for work for the said period. Management consulted Lilongwe office which then directed that the applicant be dismissed forthwith. In our considered view this did not amount or constitute a hearing properly so or legally called. We thus find that the Respondent did not accord the applicant the right to be heard. It would seem that the Respondent want to justify the dismissal as summary dismissal as per the termination letter tendered in this court. Summary dismissal is defined in section 59 (2) of the Employment Act as termination of employment by the employer without notice or with less notice than the one to which the employee is entitled. It does not mean termination of employment without a hearing. See Alex Kondwani V. Malawi Postal Corporation Matter No. IRC MJ 170 of 2007. The fact that there was no hearing renders the dismissal unfair. Of course the acts of the applicant justify summary dismissal as per the provisions of section 59 (1) (b), (d) and (e) of the Employment Act. These are provisions which states that habitual or substantial neglect of ones duties; willful disobedience to lawful orders given by the employer; or absence from work without permission of the employer are grounds of summary dismissal. As it was stated in the case of Magalasi V. National Bank of Malawi (2008) MLLR 43 per Mtambo JA at p. 49. “Insubordination has been deemed as refusal fo obey some order which ag superior offices is entitled to give and have obeyed; it imports a willful or intentional disregard of the lawful and reasonable instructions of the employer.” And in Macholowe V. Universal Industries Lid IRC Matter No. 214 of 2001, the court held that habitual absenteeism is a ground for summary dismissal. 5. FINDINGS AND CONCLUSIONS In the foregoing analysis we thus find that the Respondent had valid reason (s) to dismiss the applicant. However it failed to accord hima hearing. The Respondent could have afforded the applicant a hearing at a shorter notice. Such not being the case it is found that the dismissal was unfair as the hearing would have promoted fairness and equity in allowing the applicant to profer orindeed explain his side of the story. So having found the dismissal herein to be unfair on procedural grounds we submit that the applicant greatly influenced or coniributed to his dismissal. In the above cited case of Kondwani V. Malawi Postal Corporation, it was the view of the court that the applicant therein wholly contributed to his dismissal for refusing a transfer and as such the court declined to award the applicant any compensation or any other unfair dismissal remedy regard being had to the justice and equitable principles. In the case before this court we think in the same principles of equity, fairness and justice, we proceed under section 63 (4) and (5) of the Employment Act to award the applicant nominal Compensation of six months pay /salary. This comes to (MK 35,000,100 X 6) = MK210, 600.00. The said sum to be paid ought to the applicant fourteen days from the date of this judgment. 6. ON WITH HELD TERMINAL BENEFITS Having regard to the evidence before this court, we find no basis for making the award of terminal benefits as prayed for by the applicant. The evidence tendered in this court points to the fact that the Respondent paid the applicant all the terminal benefits due to him as advised in the termination of service letter. The applicant signed forms as evidence of receipt of the said benefits/ dues. Any aggrieved party has got the right to appeal to the High Court within 30 days from the date here under. MADE at Mzuzu, this 234 Day of August, 2019. H/H K. D MLUNGU DEPUTY CHAIRPERSON MISS C. T. NYIRENDA (MISS) EMPLOYERS’ PANELIST th 2h Wein Sod og MR ALEXANDER LUNGU EMPLOYEES’ PANALIST