Anti- Corruption Bureau v Kaunda14 (MSCA Civil Appeal 38 of 2011) [2012] MWSC 1 (14 November 2012)

AYVuaIT LYMNOD HE be Serres: MAMMA BARA Ras ER EH aRa ner ! { ; ; i IN THE MALAWI SUPREME COURT OF APPEAL SITTING AT MZUZU MSCA CIVIL APPEAL NO. 38 OF 2011 (Being High Court Mzuzu District Registry Civil Cause NO 15 OF 2010) BETWEEN: THE ANTI-CORRUPTION BUREAU..........ccccseseeeeeeee APPELLANT -AND- JIMMY KAUNDA...........ccccsssssesecececccsscecccccesecseees RESPONDENT BEFORE: HON. JUSTICE TEMBO, SC, JA HON. JUSTICE NYIRENDA, SC, JA HON. JUSTICE TWEA, JA, SC Ndovi, Counsel for the Appellant Lameck, Of Counsel for the Respondent Balakasi, Recording Officer Singano (Mrs), Senior Personal Secretary JUDGMENT NYIRENDA, SC, JA The Industrial Relations Court found for the respondent in a claim for unfair dismissal and awarded him damages. The finding of the court, on the facts before it, was that although the dismissal was warranted on account of the respondent’s misconduct, the decision was unfairly made because the respondent was not allowed the opportunity to be heard. The appellant appealed to the High Court mainly on the ground that it was evident that the respondent’s misconduct could not be defended on any account and further that the respondent had in fact been accorded ample opportunity to be heard. The High Court dismissed the appeal and confirmed that the respondent’s services had been unfairly terminated. The Court then found that the respondent was entitled to his notice pay, compensation and other benefits. The appellant is before this Court challenging that finding contending, in the main, that the respondent had been sufficiently and adequately heard and that the terminal benefits that were awarded to him should not have been made because the respondent was summarily dismissed. The facts are brief. The respondent was in the appellant’s employment as an Investigations Officer from 2002. By letter of 11t* December, 2008 from the appellant’s Director, the respondent’s services were instantly severed. It is important that we quote that letter: Anti-Corruption Bureau Malawi, P. O. Box 2437 Lilongwe Malawi THE DIRECTOR REF. NO. ACB/PF/45 11% December, 2008 Mr. Jim Kaunda, Anti-Corruption Bureau, P. O. Box 230, Mzuzu Dear Mr. Kaunda, TERMINATION OF CONTRACT I refer to memos from the Team Leader — Delta and Assistant Director (Finance and Administration) dated 3 November 2008 and 17* November 2008 respectively and also your response dated 24" November 2008 in relation to your absence from duty. You are aware that this is not the first time you have absented yourself from duty without approval. You did the same in April 2006 and you were warned and surcharged for nine working days. Recently, you were also involved in another disciplinary matter in relation to training and you appeared before the Appointment and Disciplinary Committee. Your matter is currently pending appeal. I find your explanation in the current case unsatisfactory. Your persistent misconducts are a clear demonstration of lack of commitment towards duty and are counter-productive in the fight against Corruption in Malawt. I therefore regret to inform you that your contract has been terminated with immediate effect. By copy hereof, the Assistant Director (Operations) and Assistant Director (Finance and Administration) are advised to take appropriate action in implementing this decision. I wish you all the best in your future endeavours. Yours sincerely Signed Alexius E. Nampota ce: The Assistant Director (Finance and Administration) The Assistant Director (Operations) The background to this letter was that on the 30th and 31st October, 2008, the respondent did not report for duties. The appellant’s management found the respondent’s failure to report for duties to have been sheer absenteeism upon which the respondent’s services were stopped. We think it is important that we look at the facts again as we are entitled to by virtue Order 111 rule 2 (1) of the Supreme Court of Appeal Rules. A report on the respondent’s failure to turn up for duties on these days was made by the respondent’s team leader Mr. Ngosi. According to Mr. Ngosi’s report to management, on the morning of the 30% October 2008, he had started off in the office vehicle to pick up the respondent to work. As he approached the respondent’s house he was informed by another employee of the appellant named Dan that the respondent had called Dan and told him that he gone to the bank. This was apparently to communicate to Mr. Ngosi not to bother going to the respondent’s house. The respondent did not report for duties that day. The following day, 318 of October, the respondent’s servant came to the appellant’s offices asking for the respondent because he was not at home. On that report Mr. Ngosi sent some members of staff to the respondent’s house to confirm that the respondent was not at home. That was done. The respondent was not home. Mr. Ngosi kept on enquiring about the respondent’s whereabouts. He called several friends and relatives of the respondent. No one would say where the respondent was. On Sunday the 2d November, the respondent went to Mr Ngosi’s house. Mr. Ngosi was not at home but he was informed that the respondent had come. The respondent reported for work on Monday the 3™4 November and he was immediately confronted with Mr. Ngosi’s_ report. The respondent’s explanation was very brief. It was as follows: ANTI CORRUPTION BUREAU MEMORANDUM To i Team Leader (Delta) From : Investigation Officer (13) Date : 3 November 2008 Subject Absence from duty SIr, As regards my absence from duty on Thursday 30% and Friday 31st October 2008 I was sick with severe headache and bedridden at home. In fact I was unconscious. I apologize for the lack of communication. Submitted for your information action, Si * Signed: Jim Kaunda Dissatisfied with the respondent’s explanation the appellant sought further clarification. The following letter was written to the respondent. | ANTI CORRUPTION BUREAU Confidential MEMORANDUM | FROM: The Assistant Director (P & A) TO : Mr. Jim Kaunda Ce ; The Director | The Assistant Director (Ops) SHRMDO | Team Leader — Delta Date : 17 November, 2008 Subject ; ABSENCE FROM DUTY On 34 November, 2008, I received an o fficial report that you were absent from duty from Thursday 30% to Friday 31st October, 2008. On 31s‘ October, 2008 at around 9:00 hours your house servant reported to the office that you were also missing at your house and he wanted to find out if you reported for duties. The office sent the Office Assistant to confirm your absence at home and he reported back that you were indeed not at home. Your team leader requested an explanation from you and you responded on 374 November 2008 that you were sick puith severe headache and bedridden at home. | I find your explanation to be contrary to a report that we received from your servant and our subsequent confirmation through our Office Assistant. I therefore request you to clarify or confirm your report of 3™¢ November 2008 in view of the inconsistencies with other statements referred herein. I need your report before end of business on BESGy, 21st November 2008. I look forward to receive your explanation soon. Signed: | Tokha H. Manyunqwa | 5 | | The respondent’s explanation came on the 24th November. This is what he said. | | ANTI CORRUPTION BUREAU MEMORANDUM To : Assistant Director (P & A) From : Investigations Officer ( 1 3) Date : 24 November 2008 Subject : ABSENCE FROM DUTY | Sir, I refer to the above (and your memo attached) and the telephone conversation we had earlier today. First let me apologize for not giving a response by Friday 21 November 2008. Sir, this because I have only read your memo today as all of last week I was away on official duty in Lilongwe and Dedza. Sir, and as per the telephone conversation we had, I think what I omitted to write in my memo to the Delta Team Leader, Mr. Ngosi, (copy attached) was that my houseboy was not aware of the fact that I was in fact there at home in my bedroom. For your information there are only 2 people in my house, myself and my houseboy. I explained this state- -of-affairs to the Delta Team Leader when I reported for duty on Monty 3'4 November 2008. Sir, again let me apologize for the lack of communication from me to the office during those 2 days but it is my sincere prayer that this response will serve to close this matter once and for all and that Inow continue to concentrate all my energy on official duty. | | Submitted for your information and consideration, Sir. Signed: Jim Kaunda The explanation given by the respondeht for absenting himself from work was that he was sick and bed made as read from his letter above. Obviously the respondent’s story was totally hollow. It was a very cheap lie. His own servant whom according to him stayed with him at his house reported to the appellant that the respondent was not home. The respondent’s workmates went to the hquse to check on him. He was not there. The respondent says he was home unconscious. Shall we say the whole of Thursday and the whole of Friday. What happened after that. He woke up on his own and was suddenly fit enough to go around visiting his workmates. On Sunday the 224 November he was up and about. He went to Mr Ngosi’s house but did not find him. | We agree with the submission by both counsel for the appellant and the respondent that section 57 (2) of the Exployment Act demands that the employment of an employee shall not be terminated for reasons connected to his capacity or conduct before the employee is provided an opportunity to defend himself against the allegations made. This provision is obviously premised on section 43 of the Constitution on the right to a hearing where ones interests are affected or threatened in some way. | The question that preoccupied the courts below was whether the respondent was heard. That question has also been raised before us. The argument which the courts below were persuaded with was that there should have been an oral hearing because the circudbatannes of the respondent’s absence from work were controverted. With due respect, we disagree with that finding. | To begin with it is not that the respondent was not given an opportunity to defend himself. The appellant brought the allegations against the respondent to him in writing. The responder: was asked to respond. It is not in doubt that the respondent had ample opportunity to properly understand the allegations against him and to carefully respond. Initially | 7 the respondent made a very brief response. Unsatisfied with the response the appellant sought further explanation from the respondent. This time the respondent made a slightly longer response. Both responses exposed the blatant lies on part of the respondent; lies as graphic as to leave no one in any doubt about the respondent’s misconduct. He had absconded from work for two days without any reason, let alone a valid reason. Was it none the less necessary that there should have been an oral hearing? We do not think that was necessary. In our view it would have been abundantly clear to anyone listening to the short explanation by the respondent that his story was made up. This is a story that did not require any further explanation. There was nothing complicated about this matter which should have compelled the appellant to arrange for a formal oral hearing. What we should also state is that it is not always the case that oral hearing will do the trick because of the opportunity to cross-examine the accuser. We have come across cases where individuals become uncomfortable, incoherent and in some instances intimidated with oral hearings and have preferred to take their time and make written response. Whether the parties should deal with the matter by way of written communication or by oral hearing could never be predetermined. The issues in the particular case will determine the most appropriate course. | We agree with what this Court earlier said in Lameck Moyo v National Bank of Malawi MSCA, Civil Appeal No. 19 of 2009 that the right to be heard does not necessarily mean that in every case the accused must be allowed an oral hearing. In Francis Komwa v Chloride Batteries, MSCA Civil Appeal No. 50 of 2009 this Court cited a passage from the case of Kanda v Government of Malaya [1962] AC 322 as follows: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made | against him. He must know what evidence has been given and what The letter by the Director clearly stated that termination of the respondent’s contract was “with immediate” effect. He could not have been more law compliant than this in effecting “summary dismissal.” The appellant was therefore summarily dismissed and for the reasons that we have discussed earlier, his dismissal was warranted and was procedurally effected. With this conclusion our position is that the respondent was not entitled to any compensation. The order for compensation was therefore not appropriate and we reverse it. If compensation has already been paid, it shall be refunded to the appellant. In that regard the appeal succeeds. There is another matter that we must firlatty deal with. When implementing the Director’s decision, Mr. Mayungwa, an Assistant Director of the appellant, wrote the respondent in this way: ANTI CORRUPTION BUREAU MEMORANDUM | From d The Assistant Director, (P & A) To : Mr. Jim Kaunda Ce i The Director The Assistant Director (Ops) SHRMDO Team Leader — Delta Date E 5th January, 2009 Subject i MATTERS REGARDING YOUR TERMINATION OF CONTRACT | | I refer to your memo dated 23rd December 2008. | I wish to thank you for handing over all property and documents belonging to the Anti-Corruption Bureau that were in your custody. The Delta Team Leader has already acknowledged that all items were handed over in good order. I wish also to respond to various issues that you have brought up in relation to your termination as follows: 1. Gratuity I wish to advise you that we still maintain our earlier interpretation of clause “01.18.2 of the ACB’s Conditi ons of Service which clearly stipulate the way gratuity is calculated on termination of contract. You will be paid a 25% gratuity on gross earning accu You are aware that in a normal case, 24 months of service, you will not ha mulated over a period of your service. if you leave service before completion e been entitled to any gratuity and if you left after 24 months but before full contract, which is 36 months, you will have been paid 15% of your gross earnings over a period of service. The clause “as if he had completed a full satisfactory term of contract service” at the end of clause 01.18.2, which seems to be confusing you, is substantiating the than a normal 15% which is payable full service. 2. Leave days and commutation 25% which you are being given other to an officer who has not completed a Our records show that you have 21 leave days which will be commuted to cash. 3. Notice Pay You will be given a one month | notice pay as stipulated in Clause 01.06.02(a) of our Conditions of Service. 4. Transport back home The Bureau will provide you f belongings back to Lilongwe on re 5. NICO Policy Our records show that the Burec dealing with NICO. We only cam. ransport to transfer you and your quest. 4uU was not initially involved in your e in when we were requested by you to be deducting Premiums and remitting them to NICO from your salary which we have been doing. You h NICO on this development and s However, remittance advice to us because y 6. MASM Membership | Your MASM membership on Bur on your termination on 11% Dece MASM on this issue. I hope this memorandum clarifies all 1 Please do not hesitate to contact me uF this issue. 11 ave a responsibility therefore to notify tart remitting cash on this obligation. we will proceed advising NICO to stop sending their ou are no longer on our payroll. reau. account is automatically revoked amber 2008. We have already written ssues that you raised in your memo. you need any further clarifications on Signed: Tokha H. Manyungwa | THM/ mck | : | Mr. Manyungwa soon realised that he had wrongly construed the relevant provisions in the appellant’s staff conditions of service. He immediately wrote another letter to the respondent as follows: | | | ANTI CORRUPTI ON BUREAU MEMORANDUM | TO 4 Mr. Jim Kaunda | FROM: The Assistant Director (P & A) ! Ce : The Director The Assistant Director (Ops) SHRMDO | Team Leader — Delta Date : 16% January, 2009 | Subject ; MATTERS REGARDING YOUR TERMINATION OF CONTRACT | I refer to my memo dated 5 January 2009 in relation to the above matter. Having revisited the Anti-Corruption Bureau Staff Terms and Conditions of Services, I have noted that you are not entitled to any gratuity and notice pay. Clause 01.07 stipulates that in the event of dismissal, an employee or staff member will not be entitled to any privilege under these conditions. Your contract was terminated on misconduct. The definition of dismissal in the Conditions of Services includes termination of contract on the grounds of misconduct. | I) You are therefore informed that you will not be entitled to such benefits under this circumstance. This memorandum therefore supersedes my _ earlier memorandum dated 5‘ January 2009 on the same. | 12} | | Please be advised accordingly. | Signed: Tokha H. Manyungwa | THM/sbh The appellant’s Staff Terms and Conditions of Service provide in clause | “In the event of dismissal by “Pe Bureau, an employee or a staff 01.07.2 that: member will not be entitled to any privilege under these conditions except at the discretion of the Director.” | Our view is that dealing with the matter as it did, it is only fair to hold the mistake that was made against the appellant and presume that discretion was made in favour of allowing the respondent some benefits as determined in the elaborate letter by Mr. Manyungwa of the 5t8 January, 2009. We will therefore, and purely for that reason, disallow the appeal with regard to the rest of the benefits as contained in Mr. Manyungwa’s letter. We make no order for costs. | Pronounced in Open Court at Mzuzu this 14th day of November, 2012. SITE a. ss cecences id Dale WWEIROG § ¢ HTT A. K. Tembo, SC, JA | = SS