Jetu and Another v Group 4 Securicor Malawi Limited (IRC MATTER 106 of 2012) [2019] MWIRC 9 (6 November 2019)

—— By Aa trons Cau =| a ( one Ns |O Nba THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU DISTRICT REGISTRY I. R. C. MATTER NUMBER 106 OF 2012 BETWEEN OSGAR SEIU snceccnanmaummannenes rarer eevaiediedbennnnaen ones 157 APPLICANT LAMSY KALAMBALARE................eecccseccsseseseeeescescsenccuens 2ND APPLICANT ND GROUP 4 SECURICOR MALAWI LIMITED (GAS) ...........00..008 RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS' PANELIST MRS MERCY KACHALE, EMPLOYEES’ PANELIST MR ASHIM SIYADI, APPLICANT'S COUNSEL MR KHUMBO BANDA, RESPONDENT'S REPRESENTATIVE MR WASHINGTON MWENELUPEMBE, COURT CLERK JUDGEMENT 1. BACKGROUND The 1s! applicant was, until 25th June, 2012, in the employ of the Respondent, working as a Parcels Collector and by that time he had served for 6 years. He. commenced this action alleging unfair dismissal and claiming damages thereof, Severance Pay, Notice Pay, Pension and withheld salaries. 1 On 6h June, 2012, the 1%! and 2°49 applicants were suspended from employment on allegation that they were seen pumping fuel from motor vehicle registration number BR 5143 Nissan UD at Enukweni in Mzimba District and consequently the Respondent proceeded to dismiss them after disciplinary proceedings were conducted. 2. EVIDENCE APPLICANT'S EVIDENCE Only the 15t applicant was available for court and is the sole witness as the applicant's Counsel stated that he was unable jo trace the whereabouts of the 204d applicant and it was his prayer that we proceed in his absence which the court and the Respondent's Representative agreed to. 157 APPLICANT’S EVIDENCE He stated that on 27!" November, 2006 he was the Respondent's Officer responsible for collecting and delivering parcels and in June, 2012 the 2nd applicant and himself were sent to deliver parcels at Kayelekera in Karonga via Ekwendeni Hospital, Baula CDSS, Rumphi Boma, Uliwa PTC, Chilumba Garrison and Karonga Prevention study. On 25" June, 2012 he was suspended from duties by the Respondent on the allegation that he was seen from micro detector from UK having switched off the engine of the motor vehicle they were driving in at Enukweni Trading Centre. He went on to say that on 4h July, 2012 the two applicants were invited to attend the disciplinary hearing at the Respondent's Offices in Mzuzu on syphoning fuel charges which they denied and that the Respondent failed to adduce evidence to support the said allegation. He continued to state that despite the fact that there was no direct evidence against them, the Respondent went ahead to terminate their employment without proper justification or valid reasons hence this action. RESPONDENT'S EVIDENCE RW1: KHUMBO BANDA He stated that he is working with the Respondent as its Human Resources Officer based at Mzuzu Offices. He testified that the Resoondent do use the GPS car Tracking system and these machines are installed to the Respondent's vehicles and that the system basically provides information on the movements of the Respondent's vehicles; its location and any activities happening on it. He went on to state that on the material date, the system provided information that the applicants stopped at Enukweni Trading Centre and turned off the vehicle's 2 Engine and there was a “ Leakage” of 10% of fuel from the vehicle they were driving in. He continued to say that the applicants were asked to write a Report on the same day. (See exhibit KB 2) and they were suspended from employment. The Respondent then proceeded to invite them to a disciplinary hearing where they were charged with the offence of ‘Lack of Trust’ on 4th July, 2012 as the vehicle Tracking System indicated that fuel was siphoned when the vehicle had stopped at Enukweni. See Exhibit KB 3. He further stated that the applicants claim for unfair dismissal is unjustified as they were called for a disciplinary hearing and direct evidence was brought forward to support the allegations of fuel siphoning since the Respondent has alll its vehicles tracked on Enigma Vehicle systems to monitor all malpractices done in the course of duty, hence on this particular day of 24th June, 2014, there was fuel drop alert for vehicle Registration number BR 5143 herein. The witness tendered the Email from Secure logistics Courier Department National Coordinator and was marked as Exhibit KB1, the minutes of the Disciplinary hearing as KB 4; the Disciplinary Code as KB 5; the applicant’s final written warning as KB 6, the applicant's terminal benefits calculations yet to be paid as exhibit KB Zand the 2°¢ applicant's dismissal letter as KB8. 3. LEGAL ISSUES TO BE DETERMINED (i) Whether or not the 15 applicant had pumped fuel from the Respondent's motor vehicle at Enukweni in Mzimba, i.e. whether or not the charge against him was duly provede (ii) Whether or not the 1st applicant's dismissal herein was unfair? (ii) Whether or not the 1st applicant is entitled to the claims herein as espoused in his IRC form 1. 4. THE APPLICABLE LAW On Burden and Standard of proof It is trite law that in civil cases he/she who alleges must prove and the standard of proof is on balance of probabilities. See GoliatiMwase( Father _of Nelson Mwase,Deceased) vs Raphael Chimbala and Cilicon, civil cause No. 144 of 2009 (unreported) (Mzuzu registry) On employment matters, the IRC held as follows in the case of David Mbalangwe& 8 others V Attorney General (Ministry of Agriculture), matter No. IRC 126 of 2017 (unrep.) (MzuzU Registry). It is duty of the Respondent to prove that the dismissal was lawful both substantively and procedurally and that the standard of proof is on a balance of probabilities. The court went on to say that: In all dismissal case, the onus is always on the employer to prove that the applicant was guilty of misconduct or incapacity as the case may be .... Where the employer fails fo give or substantiate the reason they give, there is a presumption that the dismissal was unfair. Thus the duty of proving the reason for dismissal is on the employer. Section 61 (1) of the Employment Act provides: “In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer fo provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair” In Mahowe_ V. Malawi Housing Corporation, Civil Cause No. 3687 of 2000, the Court stated that the Court examines the reason given for termination of employment and the act of misconduct and tries 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. Section 61 (2)Jof the said Employment Act provides: “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 acfed with justice and equity in dismissing the employee” Section 58 of the Employment Act provides that: “Adismissal is unfair if it is not in conformity with section 57 or is a constructive dismissal pursuant to section 60” Section 57 of the Employment Act provides as follows: “(1)_ The employment of an employee shall not be terminated by an employer unless there is a valid reason connected with the capacity or conduct of the employee or based on the operation 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” 5. ANALYSIS OF THE EVIDENCE IN RELATION TO THE APPLICABLE LAW This Court having heard the evidence herein from both sides and having subjected the evidence to scrutiny with the applicable law proceeds as follows: it is trite that upon a claim for unfair termination and dismissal being made, the employer bears the burden to prove whether the same is fair or not. Thus the only requirement is for the employee to allege that he was employed by the employer and has been dismissed by him. The employer must therefore adduce evidence to prove that firstly, he complied with sections 57 by having heard the employee and had a valid reason for the dismissal and secondly by proving that he acted with justice and equity in dismissing the applicant depending on the circumstances of the case. See DR Cassim_ Chilumpha,"unfair Dismissal underlying Principles and Remedies” (Montfort, 2007), p.14. As already alluded to above, district from criminal matters, where the burden of proof lies on the prosecution and the standard is one of “beyond reasonable doubt" a claim for unfair dismissal is in the category of civil claims and as such the standard of proof is lower, being that of “preponderance or balance of probabilities" In the instant case, it is not in dispute that the 1st applicant was working for the Respondent as a Parcel Collector and even RW1, admitted that the 1st applicant’s services were terminated based on the report from the United Kingdom implicating him in a fuel siphoning as the motor vehicle they were driving in, BR 5143 stopped at Enukweni for about three minutes and a fuel drop of -20% was detected. The 15 applicant admitted that on their way back from Kayelekera on their duty of delivering parcels they stopped at Enukweni as they wanted to deliver a mail which was just written ‘Baula CDSS" with no physical address and they stopped to enquire from people around there if they knew where Baula CDSS was but to know avail. This was the same with their stoppage at Ekwendeni. He went on fo state that on this vehicle the driver was Lamsay Kalambalale and he was with him all along and denied any wrong doing on his part. He maintained in cross - examination that there was no evidence to the allegation made against him because even during the disciplinary hearing the Respondent failed to produce evidence to support the fuel siphoning allegation and that it was not possible to pump out the fuel from the said motor vehicle’s tank because the tank had a sieve and also a lock. When the Court enquired as to who was keeping the vehicles fuel tank keys, the 1s! applicant stated that it was a Mr Mkandawire, the Respondent's employee. When RW1 was cross — examined as to what he meant on the “fuel leakage” he said that he meant a fuel drop implying that fuel has been taken out from the tank of the vehicle which information came through an Email from the Head of Courier Services, EVS in United Kingdom and the 1st applicant was dismissed based on this report and other factors. When asked as to whether the report was available during the disciplinary hearing, he answered that he had no knowledge as he was not part of the hearing. When cross — examined as to where actually and how the applicants used to pump the said fuel since the fuel tank had a sieve and was locked, he said he only know that the tank has a sieve but on the lock issue he is not sure and as to whether one can breach the sieve or not, he is also not aware and he did not enquire whether the Respondent confirmed the breach but he only know that fuel can be siphoned through other means, which he did not explain. He also admitted that there was no leakage of fuel from the tank and that the minutes of the Disciplinary Hearing does not indicate whether fuel was checked physically. So, in the circumstances of the case, can we say that the issue of whether or not the 15 applicant pumped /siphoned fuel from the vehicle in question has been proved to the requisite standard. The answer ought to be in the negative as per the available evidence. Throughout the minutes of the Disciplinary Hearing, the evidence to the charge of lack of trust proferred against the applicant has been that of the Mirco — Detector machine from United Kingdom. To quote the Chairman on page 51 of the Disciplinary Report: “The accused admitted that he had a stoppage at Enukweni. Hence what the machine (Micro - defector) recorded/picked have the potential of truth that something fishy happened” We think that the evidence fails short of proving the offence justifying the dismissal / action herein. This Court is very much aware that on misconduct allegations proffered by the employer on the employee it is enough for the employer to entertain a reasonable suspicion as long as that suspicion is backed by circumstantial evidence through an investigation and the employee is given an opportunity to vindicate himself or herself. As Sikwese, S. R. puts it in her book, Labour Law in Malawi, 2010 p. 91. 6 “Investigation” In all cases of misconduct, investigations form part and parcel of the disciplinary process. Disciplinary action cannot be taken against an employee for the allegations of misconduct without enquiries being made into the alleged misconduct unless the employee is caught red - handed. In serious cases of misconduct involving theft, fraud, criminal activities and other acts of dishonesty, an investigation forms the basis of the decision to dismiss even where the theft or fraud is not proved against the employee. This is because such cases are difficult to prove. The need to investigate is summarized 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 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 it. 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 alll the circumstances of the case" See Polkey V. AE Services Dayton Lid (1987) 3 AIIER 974 The author then concluded as below: “The employer's failure to investigate is held to be unreasonable and unfair” Thus from this analysis, we are of the fortified view that the Respondent herein did not carry as much investigations into this matter as was reasonable in the circumstances thereby rendering its decision unreasonable and unfair. To that end, we opine that the applicant was unfairly dismissed and therefore entitled to the damages thereof. On the prayer for terminal benefits, the same succeeds, i.e., severance allowance/pay is payable as per section 35 of the Employment Act, since the dismissal is unfair and those other payments/benefits as prayed for and acknowledged by the Respondent in exhibit KB 7 and exhibit KB 8. The said benefits to be paid within 14 days from the date of this judgment. Any aggrieved party has got the right to appeal to the High Court as per the provisions of sections 65 of the Labour Relations Act. MADE This 6'h Day of November, 2019 at Mzuzu. K. D MLUN@U DEPUTY CHAIRPERSON % = BN ase I\ C. T NYIRENDA (MISS) EMPLOYERS’ PANELIST Ww MRS MERCY KACHALE EMPLOYEES’ PANELIST