Ziba v Bakers Pride Limited (MATTER NUMBER IRC 103 of 2017) [2019] MWIRC 14 (18 January 2019)

The Malawi Judiciary IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY MATTER NUMBER IRC 103 OF 2017 BETWEEN STOGKRER 8.72 ZIBA} cxsicwsies ee APPLICANT BARKERS PRIBIE LUNATT EID. wcscscscus ensues nediah-Hidily spe aMeN ueGUi wie ypemunerenesmaieesmn RESPONDENT CORAM: HIS HONOUR K. D. MLUNGU, DEPUTY CHAIRPERSON MISS C. T. NYIRENDA, EMPLOYERS’ PANELIST MR. ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR. WESLEY MWAFULIRWA, APPLICANT'S COUNSEL MR. GILBERT KHONYONGWA, RESPONDENT'S COUNSEL MR. WASHINGTON MWENELUPEMBE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant commenced this action against the respondent alleging unfair dismissal and miscalculation of his overtime hours. He therefore claims damages for unfair dismissal and payment for overtime hours he worked. The respondent disputes the claims and avers that on unfair dismissal, the applicant is the one who stopped reporting for work as he refused to take up his assigned /new position and that the applicant was accordingly informed of the consequences thereof and that the departmental transfer was not ill intended but that the same was facilitated by the requirements of the company. On overtime, the respondent contends that the applicant was paid all his terminal dues. 2. THE EVIDENCE (A) APPLICANT'S EVIDENCE Briefly, the evidence of the applicant was that he was employed by the respondent on 26h May, 2007 and on or about the 215! of March, 2017, the respondent terminated his employment contract without properly hearing his side of the story. He went on to state that during the period he worked he was not duly paid all his terminal benefits especially overtime hours which he said its grand total amounts to a sum of MK4, 912,251.68; that is for both Lilongwe and Mzuzu. On his being dismissed, he stated that on 10! February, 2017, Mr. Shaid, the Bakery Manager told him that he did not want him there, in the presence of Mr. Ajid and he informed the Human Resource Manager, Mr. Mziyala and his immediate boss, the Accounts and Finance Manager, Mr. Limas and the Administrator Mr. Rexter Kabzera. On 7' March, 2017, he received a transfer letter to Dubai Shop as a Sales man which was not normal as it came from Mr. Shaid who had already declared that he no longer wanted his services. He continued to say that he was not given 2 a disciplinary hearing, a dismissal letter and no protection at work after he was attacked by thugs on 11th December, 2015 at around 19:00 hours when he was coming from work. He states that this happened because the company was not providing transport to its local staff even if they were knocking off late. He concluded by saying that the events at his work place shows that the respondent no longer wanted his services. For instance, his colleague Mr. Phewa did not work night shifts while in Lilongwe and he is not working night shifts in Mzuzu either but he was and that the applicant’s transfer from Lilongwe to Mzuzu was a difficult one. (B) THE RESPONDENTS EVIDENCE: MR. PATRICK MZIYALA He stated under oath that he is the Human Resource Manager for the Respondent Company. Briefly his evidence was that there was an oral agreement which was later reduced into writing which stated that senior employer like the applicant were not entitled to overtime which was based on basic pay and not gross pay. He also challenged the document outlining overtime amounts on the basis that it was signed by Mr. Nizam at the time he had already left the employ of the respondent. He stated that the applicant was being absent without sick leave. However, he admitted that no audience was given to the applicant with the boss and no reason was given to the applicant for the same. He further stated that he had consulted labour office where they recommended the termination of the applicant's services on medical grounds. He conceded that the termination letter does not talk about medical grounds as the reason for termination. He said there was a disciplinary hearing which comprised of him and a certain colleague but minutes for such a hearing were not available as it was verbal. 3. ISSUES (i) Whether or not the respondent's denial of the applicant's claim has any legal basis. (ii) Whether or not the applicant is entitled fo over time (iii) ©§ Whether or not the applicant was unfairly dismissed 4. THE APPLICABLE LAW A) ON BURDEN AND STANDARD OF PROOF Ordinarily, the burden of proof lies on a party who substantially 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 had to adduce sufficient evidence to raise a presumption that what is claimed is true. ee: COMMERCIAL BANK OF MALAWI. V. MHANGO Civil Appeal No. 8 of 2001 In KUMALAKWAANTHU T/A ACCURATE TILES AND BUILDING CENTRE -V- MANICA MALAWI LIMITED, Civil Appeal No. M. S. C. A 57/2014, the court stated as follows: “Standards of proof for the matters in the IRC is the 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 the 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, it is not. A well settled principle of ancient application is ei incumbit probation quidicot not qui negat.” This essentially means that the burden of proof lies on the party alleging a fast 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, the occurrence of the event was more likely than not. See RED (2008). B) ON UNFAIR DISMISSAL Section 58 of the Employment Act states that, “A dismissal is unfair if if 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), if 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 if is stated in the case of FRIDAY GIBSON FOTE-V- LIMBE LEAF TOBACCO COMPANY LID, IRC MATTER NO 156 of 2009 per J. N'riva, D. C. P (as he was then) 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 to defend herself. In short, before a dismissal, the employer must hear the employee's 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 the 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 fo proving 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 of the employee.” In the case of SINGINI -V- B. C. A BESTOBELL MALAWI, Matter No. IRC 274 of 2002, the court held that: “Where there is an allegation of dismissal, the burden is on the employer to show that there was a valid reason for the dismissal and that the employer acted with fairness before dismissal. The employer must substantiate the reason in court. In the absence of such proof there is a conclusive presumption that the dismissal was unfair (section 61 of the Employment Act)...” C) OVERTIME Section 36(1}) of the Employment Act provides that normal working hours shall be set out in the employment contract provided that the hours do not exceed 48 hours in a week without overtime. Section 39 of the Employment Act provides for overtime as follows: 2. There shall be three classes of overtime known respectively as: a) ordinary overtime, which shall be time worked on a working day in excess of the hours normally worked by the employee in the undertaking concerned; b} day off overtime, which shall be time worked by an employee on a day on which he would otherwise be off duty; and g) holiday overtime, which shall be time worked on a public holiday. 2. An employee shall for each hour of ordinary overtime be paid at the hourly rate of not less than one and one-half his wage for one hour. 3. An employee shall for each of day off overtime be paid at the hourly rate of not less than twice his wage for one hour. 4, An employee shall for each hour of holiday overtime be paid at a rate of not less than twice the normal hourly rate. 5. ANALYSIS OF THE EVIDENCE VIS-AVIS THE APPLICABLE LAW A) ON UNFAIR DISMISSAL From the evidence herein, the respondent stated that they terminated the services of the applicant based on the recommendations from labour office which was on medical grounds. However they conceded that the termination letter did not talk of this as the basis for terminating the services but it was taken into account. Whether the respondent indeed consulted the labour office or not is a matter of conjecture as no candid evidence has been presented before this court and as such is immaterial. After all the decision to hire and fire the applicant rested with the respondent and not labour office. Going by evidence proferred and also by pursuing exhibit SZ1, the termination letter, there is lack of clarity as to the grounds which led to the dismissal of the applicant. The letter of termination states that ‘ considering that there is no any post to be offered and you cannot perform duties well due to eye problem,’ management have decided to terminate your services ... ‘as the basis for the applicants termination of services, i.e., a medical condition. Again the same letter talks of the applicant's refusal to take up a salesman post. This is also what the respondent seems to say through its sole witness, Mr. Patrick Mziyala in his sworn witness statement. This is very surprising in that the law places the burden of proving the reasons for dismissal of employee on the employer. As it was stated in the case of MAHOWE -V- MALAWI HOUSING CORPORATION, Civil Cause No 3687 of 2000 (Unrep.) H. C that: “The court usually examines the reason given for the termination of employment and act of misconduct and try to find out if the termination is justified. If ine reason is not supported by the evidence the court may conclude that there was no justification for the plaintiff's dismissal. This was the case in Mvula-V-Norse International Ltd 15 MLR 331 at pp. 336-337, per Makuta C. J,” The court proceeded fo say as follows: “It is for the employer to show that reason for dismissal. If there is more than one reason for the dismissal, he must show the principal reason for dismissal. The reason must be a substantial reason of a kind such as to justify the dismissal and it is for the court to determine whether the employer has acted reasonably in dismissing for the reason which is determined in accordance with equity and the substantial merits of the case. Smiths -V- Hayle Town Council (1978) ILR 996” Again, in the case of SHOPRITE TRADING LIMITED -V- JOKINGS CEMENT AND OTHERS, Civil Appeal No. 20 of 2012 (H. C) (P. R}, It was held by Kamwambe, J; that when section 61(1) of the Employment Act is read with section 57, we may safely conclude that the parliamentarian was deliberately protecting the employee who is in a weaker bargaining position and that the employer no longer enjoys the liberty to dismiss an employee at his pleasure without consequences. The court are implored to search for a reason, and for that matter, a valid reason for dismissal which will avoid punishment for paying compensation. On procedural fairness, it has been submitted that the respondent terminated the employment contract of the applicant without affording him a right to be heard via a disciplinary hearing. This, it has been argued, is against section 31(1) of the Republican Constitution which guarantees every person’s right to fair and safe labour practices and also section 43 of the same which provides for the lawful and porocedurally fair administrative action and furnishing of reasons. In the case of BANDA —V- LEKHA (2008) MLLR 338, the I. R. C 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 stated that itis the duty of the employer to show that the dismissal was lawful and justified on a balance of probabilities. And in the case of NICHOLSON -V-HEAVEN & EARTH GALLEY PVT (1994) IRCA 68, Wilcox CJ of the IRC of Australia said: “The relevant principle is that a person should not exercise legal power over another, to that other person’s disadvantage and for a reason personal fo him or her, without first affording the affected person an opportunity to present a case. Similarly, Lord Reid made the following remarks in the famous case of RIDGE V. BALDWIN (1964) AC pp.113-114: “The essential requirement of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations...which he has to meet.” During cross examination, Mr. Patrick Miyala, the respondent's sole witness stated that Him and Mr. Rexter the administrator conducted a disciplinary hearing in the absence of the director whom the applicant wanted to meet. That this hearing was verbally done without any minutes taken and the notice thereof was also verbal. During re-examination, he stated that the Disciplinary hearing was not legally done but the applicant's services were terminated on the combination of the medical grounds and the retirement age issue. With due respect fo Mr. Mziyala, a critical assessment of the evidence shows that no proper disciplinary hearing took place. FINDINGS All in all, the respondent did not comply with section 57, 61 and 29 of the Employment Act and the provisions of sections 31 and 43 of the Republican Constitution in effecting the dismissal of the applicant herein. The applicant's transfer was suspicions and an afterthought as it came after the Bakery Manager, Mr. Shaid had already declared that he did not want the applicant's presence at the office. Hence no valid reason can be had for the dismissal. To that end it is hereby found that the applicant herein was unfairly dismissed hence entitled to the remedy of compensation as prayed for. The same to be assessed accordingly. B) ON OVERTIME It is the law that an employee should be entitled to overtime as discussed above in the applicable law. Therefore, no agreement in contravention of the law can stand and especially so when the said agreement is being disputed and has no supporting evidence. It is not in dispute that the applicant was working overtime both in Mzuzu and in Lilongwe. What is in dispute is the basis of the overtime payment, the number of hours, and the signature of Mr. Nizan in as far as Mzuzu claim thereof is concerned. The purported agreement to waive overtime pay was illegal and is disputable hence cannot be dignified by this court. In the present matter it is very clear that the applicant since he got employed on the 26th May,2007 was working 12 hours each day from 6:00am to 6:00pm everyday including Sundays and public holidays. During the period worked, the applicant was never paid overtime as per clause 11 of the respondent's Conditions of Service. If the applicant was being paid overtime in Lilongwe based on gross pay, the respondent is then estopped from arguing otherwise. Besides, the argument that the 1 hour for day shiff was being deducted because accounts personnel observed that the applicant was not coming on time falls on the way side as the approving officer was the supervisor. In this case, it is in evidence by Mr. Mziyala that the “forms are filled by the employee and approved by the immediate boss.” He was signing for the same when the applicant was in Lilongwe but they were being disputed by the accounts people. Thus, the respondent has failed to justify why the one hour for day shift was being deducted. The respondent took issue with the fact that Mr. Nizan signed for the overtime hours for Mzuzu whilst he was no longer in the respondent’s service and hence no longer the approving officer. However, it is a fact that the respondent has the records for 10 overtime hours worked as this was not disputed by their witness. The applicant may have resorted to Mr. Nizan when he had no access to the said records. CONCLUSION In view of the above, it may be safe to conclude that the applicant's prayer for non or miscalculation of overtime may be justified. To that end, we think that an order for recalculation of overtime with all the relevant information and documentation at hand in relation to the applicable law, may do justice to the applicant and we hereby grant it. The same to be had before the Assistant Registrar. MADE This 18 Day of January, 2019 at Mzuzu. DEPUTY CHAIRPERSON C. T. NYIRENDA EMPLOYERS’ PANELIST ALEXANDER LUNGU EMPLOYEES’ PANELIST It