Madise v J.T.I Leaf Malawi Limited (IRC MATTER 156 of 2017) [2020] MWIRC 7 (20 January 2020)

8 The Reglistrer { juatrial Ralations Court i 20 FEB 2020 dl PAID \ # | P. O, Box 12, Mzuzu _ | THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 156 OF 2017 BETWEEN THEMBA MADISE siincccna1s canvexaytawnseaiddnonsntGiiiennnwysilionnstis APPLICANT J. T. L LEAF MALAWI LIMITED ............ 0.0 cece cee eeeeeeeeeaea enone RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MR KISSA MWAFULIRWA, EMPLOYERS’ PANELIST MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR MOSES CHINKHUNTHA, APPLICANT'S PANELIST MR KHUMBO SOKO, RESPONDENT'S COUNSEL MR WASHINGTON MWENELUPEMBE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant commenced this action alleging unfair dismissal and seeking compensation thereof and repatriation costs. The Respondent opposes the applicant's claim contending that his employment was lawfully terminated as he committed various gross 1 | o_O TE EE misconducts and was dismissed after proper procedures were followed before and during the disciplinary process. It also contends that the applicant was fairly treated in accordance with the law, rules of natural justice and that the Respondent acted with justice and equity in all the circumstances of the case. 2. THE EVIDENCE 2.1 APPLICANT'S EVIDENCE The applicant's side called three witnesses in the name of Chifundo Kalambo and Francis Nguluwe apart from the applicant himself. Briefly the evidence of the applicant was that he was offered a contract of employment by the Respondent on 3rd January, 2012 as an Agronomy Field Supervisor and eventually as a Leaf Production Supervisor. He went on to say that on 12th October, 2016, he was summoned for a disciplinary hearing on 19! October, 2016 at 9 a.m. at J. T.l’s Offices in Mzuzu to answer a charge of gross negligence contrary to section P (7) (5) of the JT! Disciplinary Policy and Procedures. The particulars of the negligence alleged that in July, 2016, during the tobacco selling period he was requested by growers/clubs to assist them on their claim that their tobacco bales were tampered with. It was further alleged that in September, 2016, one Olivia Sankhulani, his line Manager, was advised of the farmer's claims and she took action. While she was acting on the farmers’ claims/request, the farmers reported the matter to police against the company. If was further alleged that while Olivia Sankhulani was so acting she established that, contrary to the standard process, Chifundo Kalambo, a Leaf Jechnician under the applicant's control, was signing the consignment Delivery Notes before tobacco was loaded. Thus he was charged with gross negligence. He continued to say that prior to the hearing, he was not informed of any evidence or witness statements made against him so that he could have a fair opportunity to correct or contradict them; And further that during the hearing on 19 October, 2016, four witnesses namely, Fumu Mdoro, Violet Matewere, Goli Chione and Amos Nyasulu testified that he was informed of their queries that tobacco bales were tampered with yet the witnesses admitted that he advised them to report their grievances fo their growers’ Board/Association who were responsible for collection of tobacco bales from farmers to Auction Floors for sales booking, paying farmers after deduction of payments for creditors’ transporters and, had details of each transporter for easy tracking. The applicant further stated that despite him denying the charge, Olivia Sankhulani was not called to testify as io her findings on the alleged negligence against him and on 8th October, 2016 the Chairman of the Disciplinary hearing committee adjudged him that he was guilty of the charges against him and summarily dismissed him. He appealed against this decision but on 9" November, 2016, the Appeals Committee upheld the said guilty finding and the resultant dismissal on the ground that he had failed to take prompt and appropriate action after being informed by the farmers that their tobacco bales has been tampered with during transportation, which is not correct as per the Appeals Committee findings. 3. THE RESPONDENT'S EVIDENCE The Respondent called six witnesses namely, Olivia Sankhulani, Emily Mwinjiro, Fumu mdolo, Amos Nyasulu, Goli Chione and Violet Matewere. 3.1 RWI: FUMU MDORO This witness tendered his witness statement and the attachments thereto. Basically, his evidence is that he is a chairman of Fumbanani Club and is a tobacco farmer in Mzimba District. He said that on or around 13! July, 2016, he received a phone call from Chifundo Kalambo informing him that his fellow J. T. Leaf Technician by the name of Talesi Magawa would be coming to collect his fobacco from his farm to transport to Mzuzu Auction Floors and after getting confirmation from Chifundo that he should give Talesi his tobacco bales he gave Talesi 36 Bales and the reason he asked for confirmation from Chifundo was because this was not the normal practice of J. T.| to send one of its employees to transport tobacco but Growers Association, in this case Central Region Tobacco Growers Association (CRTGA) as per their contract with J. T.l, marked as Exhibit FM1. Later on he was surprised that a week passed for the tobacco to reach the Auction floors instead of a day or two and the volume was reduced a thing which prompted him fo call Chifundo but he did not answer his phone. This made him call the applicant who told him that J. T. did not have a Leaf Technician by the name of Tales and he referred him to Phindu Association. Chifundo then called him to a meeting at Ekwendeni to meet the transporter who had transported his bales but upon arrival there, he realized that the transporter there was not Talesi Magawa and Chifundo just advised him that he would bring Talesi but he never did and he never picked his phone calls again. Later on through Phindu Association, Talesi was traced and when she was confronted, she admitted having removed some kilograms of tobacco from some of the bales 3 and told them that they would find the remaining bales at a warehouse in Ching’'ambo Area in Mzuzu and they recovered some missing bales which were mostly rotten as they were kept on sand floor. Since this was a loss and that he could not get in touch with Chifundo and the applicant, him and other affected club representatives contacted Olivia Sankhulani, the J. T.1 Leaf Production Area Manager for the North and informed her of what had transpired. The said Olivia promised to assist them but on Oéth October, 2016, they decided to report the matter to Mzuzu Police as they were worried that they would not be able to recover their missing volumes of tobacco. On Monday, 10 October, 2016, the club Representatives for Yankho, Chithawale, unity and himself met Olivia and her lawyer at the Police Station, where it was resolved that J. T.! would took into their issues and try to resolve them within the next two weeks and on 19h October, 2016, when the two sides met again, J. T.l informed them that they would compensate them for the underweight tobacco bales as well as for fhe damaged tobacco that was not sold. On 187 November, 2016, him on behalf of Fumbanani Club entered into a Settlement Agreement with J. T.l and Phindu Association, where it was agreed that J. T.. would reimburse the loss incurred by the club — see Exhibit FM2. ON 30! November, 2016 they were compensated in the sum of MK1, 781,642.81 by J. T.l and on the same day they withdrew their complaint from Mzuzu Police as per exhibit FM3. 3.2 RW_3: VIOLET MATEWERE Her evidence was that she is a Tobacco Farmer belonging to YankhoClub Whereby she is its Chairperson. She tendered her witness statement and the attachments thereto. Her evidence is materially similar to that of RW 1, Fumu Mdoro hence no need to reproduce it here apart from the fact that it will be considered during the analysis of the evidence to the applicable law. 3.3 RW_3: GOL] CHIONE His evidence is that he is a tobacco farmer in Mzimba district and a chairman of Unity Club. He tendered his witness statement and the attachments thereto. His evidence is also materially similar to that of both RWI and RW 2 so what has been said of RW 2, also applies in his case. 3.4 RW_4: AMOS NYASULU His evidence is to the effect that he is a tobacco farmer in Mzimba District and a chairman of Chithawale Club. He tendered his witness statement and the attachments thereto. Again his evidence is very much similar materially to that of RW 1, RW 2, and RW 3. So what we have said as regards RW 2 and RW 3 also applied to him in as far as his evidence consideration is concerned, 3.5 RW_5: OLIVIA SANKHULANI Her evidence is that she is the Leaf Production Area manager for the Respondent (North) She stated that the applicant was dismissed as a result of gross negligence and was reporting to her. She stated that the genesis of this issue was the complaint she received on 215 September, 2016 from some representatives of two J. T.| contracted tobacco growers clubs namely, Unity and Yankho in Mzimba District. The said clubs Representatives complained that they had sent tobacco to the Auction floors in Mzuzu through a transporter sent by their Technician, Chifundo Kalambo but they were displeased with the manner in which the tobacco was handled. The Representatives informed her that the transporter’s name was Talesi Magawa and that when she had come fo collect their tobacco from St Kizito in Enukweni, they called Chifundo Kalambo to confirm whether he had indeed sent the said transporter, which he confirmed and they accordingly released about 118 bales of tobacco from five clubs. She was then further informed that instead of the transporter offloading the bales at the Auction Floors the following day as she promised, the transporter offloaded them at a warehouse in Ching'ambo Area in Mzuzu and it was only after the growers started complaining after one week had elapsed, that some of the bales were offloaded aft the Auction Floors but with weight reductions As such, the growers approached AHL Group and Tobacco Control Commission who denied responsibility because the Transporter Talesi Magawa was not registered with either of them. She continued to say that AHL advised these representatives to go to Phindu Association who had offloaded their bales at the Auction Floors. However, Phindu also denied knowing the transporter as it had only assisted in offloading of the bales at the request of Chifundo Kalambo who had brought them J. T.l Consignment Delivery Note (C. D. N} and that payment to Talesi was made through Phindu’s Creditors because Talesi was not registered with them. The growers also informed her that they had tried to call Chifundo but fo no avail except when they call him from a new number where they were told not to call him again. This then prompted the growers to call the applicant who informed them to lodge their complaint with Phindu Association as there was no J. T. employee by the name of Talesi Magawa. This then made the witness to inform her Line Managers and began carrying out investigations with the Clubs, AHL and transporters fo confirm the extent and nature of the issues. From the investigations carried, it came to light that other victims of this incident were Chithawale and Fumbanani and she found that on 06h October, 2016, some of the farmers had reported the matter to Mzuzu Police who later summoned her and she went there on 10! October, 2016 in the Company of their lawyers, Mr Soko. After discussions, the Police gave J. T. two weeks within which to resolve the complaints of the growers. On 12!? October, 2016, as per her investigations, she noted that the applicant had committed various gross misconducts and they were summoned for a disciplinary hearing. Chifundo Kalambo had to answer three charges of (a) Dishonestly; (b) conduct to the detriment of J. T.l; and (c} unauthorized use of a company motor cycle; Whereas Themba Madise was to answer one charge of gross negligence..... On 19th) October, 2016 the two appeared before the disciplinary hearing comprising, George Mphezu as the Chairman. Human Resource Representative, Emily Mwinjiro as well as herself as the complainant where they were each given an opportunity to be heard. She maintained that the manner in which the growers’ tobacco was handled and transported to the Auction Floors in this case was in clear violation of the procedures which are required to be followed by J. T.| as follows: (a) The Leaf Technician informs their supervisor in writing of tobacco bales that are ready to be taken to the Auction Floors in his or her area per the Grower Association that the growers belong to. (6) The Supervisor consolidates the numbers per the written request from the Leaf Technician and growers Association and sends this information to the Marketing coordinator for a Loading Authority (LA) preparation. (c)The Marketing Coordinator prepares the LAs and gives them to the responsible Associations so that they can send a transporter to go and load the bales. (d)After loading, the Leaf Technician fills the Consolidated Delivery Note (CON) which is fully signed by the Leaf Technician and driver of the vehicle. This is then given to the Transporter as a confirmation of what has been loaded. The transporter takes the CDN to the Association whose representative then gives the CDN to the Marketing Coordinator for signature and stamping (e) Thereafter the Marketing Coordinator allows the Association to book the vehicle for offloading and is responsible for communicating with the transporter to come and offload the bales. (f} After sales AHL pays the Transporter using the Transporter Creditors number or through the Association that has offloaded the bales. She went on to say that the said 19! October, 2016 a meeting was arranged between J. T.| Representatives and the affected growers, Club's representatives, wherein J. T.1 informed the growers that they would be compensated for the underweight tobacco bales as well as the damaged tobacco that was not sold. As a result of the compensation which was made on 30!h November, these growers clubs withdrew their complaint from Mzuzu Police Station She concluded by saying that on 24t? October, 2016 the applicants were summarily dismissed after the Disciplinary’s Committee Chairperson found them guilty of all the charge levelled against them and that as a result of the applicants’ misconduct, J. T.| lost money in the sum of MK 4,921.057.94 which was paid to the growers Clubs herein as compensation of their loss occasioned by Chifundo Kalambo 3.6 RW 6: EMILY MWINJIRO She gave evidence to the effect that she is the Respondent's Human Resources Business Manager and she explained how the applicant was employed by the Respondent; what was his duties and responsibilities and how he rose to the position of Agronomy Filed Supervisor until his dismissal on 24" November, 2016 on the charges of gross negligence. Her evidence is also contained in her witness statement which she tendered together with attachmenis thereto and is mainly based on what Olivia, RW 5 informed her and management at the meeting which was held on 06' October, 2016 and attended by their Legal Manager, Security Manager and Leaf Production Manager. She also gave evidence on how the applicant and Chifundo appeared before the disciplinary Committee whereby she was part of the Panel in her capacity as the Human Resources Representatives, in a similar fashion as Olivia's. As such we will not replicate her entire evidence except that we will have recourse to it wherever necessary in our analysis of the entire evidence in relation to the applicable law. 4. ISSUES FOR DETERMINATION (i) Whether the applicant was responsible for the Respondent to incur losses or not? (ii) Whether the Respondent was responsible for the bales of tobacco at the time they had gone missing; (ii) Whether the applicant’s actions amounted to gross misconduct/ negligence. (iv) Whether or not the applicant was unfairly dismissed entitling him to the remedy of compensation. (v) | Whether the relief of Repatriation Costs is available to him. 5. THE APPLICABLE LAW 5.1 THE REPUBLIC OF MALAWI CONSTITUTION Section 31 (1) of the Republican Constitution provides for the right to fair and safe labour practices and to a fair remuneration Section 43 provides to every person a right to fair administrative action. Section 46 provides to every citizen the sort of remedies which are available to a person whose tights have been violated. As it was stated in the case of Manyamba V. Total Malawi Limited, Matter No. IRC 4? of 2000 that: “The constitution guarantees every person a right to fair labour practices. The right to fair labour practices entail that the employer will have a valid reason for dismissing an employee and that the employer shall take disciplinary action against its employee but that the acfion shall be proportionate to the offence committed where an employer violates an employee’s right to fair labour practices, the employee is entitled to take action for unfair labour practices under section 31 of the constitution. Where a court finds that an employer violated an employee’s right under section 31 of the constitution, it is mandated to make any order that would ensure the enjoyment of that right or to make an order for compensation” 5.2 THE EMPLOYMENT ACT, 2000 Section 57 of the Employment act provides: “(1) The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacify or conduct of the employee or based on the operational requirements of the undertaking “(2) The employment of an employee shail not be terminated for reasons connected with his capacity or conduct before the employee is provided an opportunity to defend himself against the allegation made unless the employer cannot reasonably be expected to provide the opportunity.” Section 58 of the same Employment Act provides as follows: “A dismissal is unfair if if is not in conformity with section 57 or is a constructive dismissal pursuant to section 60” Section 61 of the same Act provides: “(1) in any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair:” (2)in addition to 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 the employee” 5.3 J.1.1 DISCIPLINARY POLICY AND PROCEDURE 5.31 PART H: FORMAL DISCIPLINARY ACTION Part H.1 of the J. T.1 Formal Disciplinary Action states that where formal disciplinary procedures are initiated against an employee, the employee shall have the following rights: (i) To be represented by a fellow employee of a company to act as their representative. The employee will be required to make the appropriate arrangements for such a representative to be available to assist at the disciplinary hearing. (ii) To be notified in writing of the charge in advance of the disciplinary hearing, thereby affording the employee and their representation an opportunity to prepare for the disciplinary hearing. 5.4 J. T.| GROWERS COPY Part 6 of the J. T.1 growers copy under Transfer of Risk and Ownership states that: (a) Risk of loss or damage to the tobacco shall pass from the growers to J. T. after the tobacco has been delivered and as soon as J. T.1 has purchased the tobacco at the designated selling floors; (b) Transfer of ownership in tobacco shall pass from the grower to J. T.| as soon as J. T.| has purchased the tobacco aft the designated selling floor. 5.5 THE TOBACCO CONTROL COMMISSION (TOBACCO TRANSPORTERS ASSOCIATION TERMS OF REFERENCE 1.18 Section 12.0 of the document on settling of disputes states that in the event of disputes between parties, the commission shall arbitrate in accordance with the arbitration laws of Malawi. 6. ANALYSIS OF THE EVIDENCE IN RELATION TO THE APPLICABLE LAW For a dismissal to be fair, the employer must have a valid reason for dismissing the employee based on the employee’s capacity, conduct or operational requirements and must, secondly, follow the correct procedure in doing so. The procedural requirements are met, in the case of a dismissal based on the capacity or conduct of the employee, if he / she is given a proper hearing. See section 57 (1) and (2) of the Employment Act. In the instant case, the applicant is contending that the hearing process was flawed from the start implying that a just and fair hearing was never going to take place since the summons to the hearing herein had a wrong name of the leaf Technician in issue and that the applicant was never handed a letter of suspension pending hearing so that he could respond fo the allegations in writing. Honestly, we found no merit in this argument as the same is a misconception of the applicable law and against the evidence herein. The applicant herein got the summons on 12! October, 20146 and the hearing was had on 19 October, 2016. The summons herein contained the charge and its particulars. Though the particulars had the name of Chifundo Kajamala appearing as the Leaf Technician in issue instead of Chifundo Kalambo, from the particulars, the applicant cannot be said to have been predudiced and we believe he knew the said person and the story since before the disciplinary hearing there was some kind of a meeting between Mrs Olivia Sankhulani and the applicant as regards the issue. Further the said summons enumerated the rights which the applicant had in terms of the Disciplinary procedure, namely: the right fo be represented by a J. T. member or a fellow employee, who if there are problems in securing his attendance, the undersigned HR Official of the summons was to be immediately informed; the right to challenge evidence against him, the right to bring witness (es) to the hearing and also the right to have access to the Company Policies and Procedures. 10 The said summons also provided that in the event that the applicant needs any clarification about this matter, he should see the Human Resources Business Partner before the date of the hearing. On particulars of allegation, R. S Sikwese, Labour Law in Malawi, 2010 p.p 90-91, wrote as follows: “The allegation must be clear and must have adequate particulars to allow the employee to respond accordingly. Where in doubt, the charge must be read out to the employee and he/she must be advised on the meaning of the charge. See Kachingwe and others V. Southern Bottlers (MW) Ltd, Matter Number IRC 162 of 2003. It is proper that the allegation must relate to an act or omission that the employee was aware constuted a violation for which disciplinary action could be taken. It would be unfair to charge an employee with an unknown offence unless the act or omission was inconsistent with the express or implied conditions of the employment contract. It has been held, for instance, that the allegation should specify the regulation or clause that the applicant had breached. Failure to charge an employee would lead to a miscarriage of procedural justice if the employee was not aware of the nature of the misconduct he/she had perpetrated see Chimbenje V. Dimon Malawi Lid, Matter Number IRC 59 of 2001. lt has further been held that if the employer is relying on grounds of misconduct, the employer should be in a position to cite the particular rule that the employee violated. It is not enough simply to refer fo an act as being one of misconduct without citing the regulation or rule in conditions of service. Chirambo V. UNITRAS (MW) Lid, Matter Number IRC 2 of 2002. Thus, we feel that on the argument to do with the allegations and its particulars, the Respondent did not breach the applicable law. As regards the argument on suspension, we agree with the Respondent's analysis of the law on this aspect. See R. S. Sikwese O. P cit. p. 76. The Respondent submitted as follows: “Suspension from employment is lawful if the contract of employment provides for it. It certainly is lawful fo permit investigations to be carried out and if if is not too long. See Manyengo and othe V. Agrimal, Matter No. IRC 420 of 2005. There is no legal requirement to hear an employee before suspension unless it is done as a disciplinary action under section 56 of the Employment Act which was not the case in this case at all.” On the argument by the applicant to do with the investigations by the Police, we feel the argument is misplaced as the police were conducting their own investigations at the instance of the growers/farmers who complained to them atter noting that their bales of tobacco were missing or tampered with. The said 11 police investigations were not at the instance of the Respondent for the Police to be told how to conduct them or indeed to arrange the meeting for them with the applicant. As such we find nothing to fault the applicant’s immediate boss, Mrs Olivia Sankhulani on the same. The position of the law on ‘Police investigations’ was put as follows by R. S. Sikwese, OP. cit. p.p 92-93: “it was held, for instance, that it was improper for the Respondent in Kamasa V. Bata Shoe Company Ltd, Matter Number IRC 235 of 2003 (unreported) to dismiss an employee based on police reports. The Police were carrying out criminal investigations and not investigations relating to employment misconduct. Issues of employment are dealt with by the employer and not by a third party, namely, the police. The Respondent was supposed to carry out its own investigations and hear the applicant before dismissing the applicant. A police officer should not be allowed to conduct the disciplinary hearing on behalf of the company” The applicant also contends that if was surprising that during the disciplinary hearing four witnesses were paraded by the Respondent namely; Fumu Mdoro, Violet Matewere, Goli Chione and Amos Nyasulu to testify that the applicant was indeed told about the missing and tampering of bales, except Olivia Sankhulani who was supposedly conducting investigations yet she was a key witness in this case but was not present at the hearing. Again, we are at pains as to the correctness of the said contention. Our perusal of the Disciplinary Hearing Report, marked as exhibit “EM6” shows that Mrs Sankhulani was present as a complainant and is the one who laid the complaint against the applicant and also presented the aggravating factors/circumstances of the offence and that of the offender. Areading of the complaint as presented by her shows that she narrated the genesis of the story and how the same proceeded, up to the time of the matter reaching the police. She also submitted documents such as the complaint form, statements from Yankho and Fumbanani Clubs and Phindu Association and brought growers and Phindu Association Representatives as her witnesses. To this extent, the contention by the applicant is misconceived and without merit. With regard to the validity of the reason (s) for dismissal we proceed as follows: When the applicant had been cross — examined after explaining the procedure taken for bales to be transported to the Auction Floors and what happened in the instant case as to why he had not reported to his immediate boss after being approached by the concerned farmers of the missing of their bales of tobacco, he stated that the advice he had given the farmers of following up the matter with their respective Growers Associations was the appropriate one and that he had followed the right procedure. He further stated that it was not J. T.l’s 12 responsibility to follow up missing bales whilst in transit J. T... only assumes responsibility of bales when they have been weighed at the Auction Floors, offloaded and purchased by J. T. when he was asked what he was basing his answer on he turned to the agreement that J.1.1 and its farmers signed. He repeated his answer in re — examination and confirmed that it was the Growers Association which was responsible for the transportation of tobacco. His witness, Francis Ngulube emphasised that as a clerk of Tofapia Growers Association, they encourage farmers to use their association when sending tobacco bales to Auction and that he is the one who handles transport organization for its growers. He said that the association has direct contact with the farmer and transporter and acts like a broker between the two and the transporters are registered with the Association. When an issue arrives that they cannot agree with a transporter they report to Tobacco Control Commission (TCC) to resolve the issues. He concluded by citing an issue during the 2016 to 2017 season where a farmer Amos Nyasulu under Msopenge club claimed compensation from JT| and the transporter in issue then was registered with their Association (Tofapia) and it was this transporter who paid compensation for tampering with the bales of tobacco and not J. T.| as was the case with the applicant. In cross — examination the witness was asked about the process which took place in the applicant's case was different because allegedly a J.1.1 employee was directly involved in the transportation procedure, he replied that the fact remains that when tobacco goes missing during transportation the buying Company is not responsible but the growers association and the transporter. The evidence of the Respondent's witnesses was out lined above. During cross —- examination of RW1, Fumu Mdoro, he stated that his bales were carried by vehicle registration number NA 3686 on 6 July, 2016 and not a vehicle with registration Number MZ 7354 as per the J. T. Consignment Delivery Notes (CDN). He said the applicant denied knowing Talesi Magawa and that they dealt with Talesi. He further said that TCC and AHL did not assist him as it denied responsibility over the same and that J. T. compensated them as per the agreement made between them and J. T.1. RW2, Amosi Nyasulu said Growers Association was responsible for transportation of tobacco bales to the Auction Floors and that they dealt with Talesi because of the communication from Chifundo Kalambo though it was wrong procedurally. He replied that they did not inform the applicant or Olivia of the said strange procedure before loading and they failed to prove evidence of communication 13 with Chifundo Kalambo and also proof of weight and size reduction of their tobacco bales at the Auction Floors. This was also the reply of Goli Chione and Violet Matewere during their cross — examination on the questions paused to them. Olivia Sankhulani said that she is the one who conducted investigation that led to the applicant's dismissal on the charge of gross negligence. During cross — examination, she stated that the applicant was charged as such because he failed to supervise Chifundo Kalambo whose actions put the reputation of the company to shame. She went on to say that the applicant acted negligently because in this case a J. T.1 employee was connected directly to the transportation of the tobacco herein and J. T.| assumed responsibility. However, she failed to produce CDN'S as proof of their employee’s connection. She also failed to state the reason why they did not invite Talesi Magawa during the disciplinary hearing. She further answered that the applicant's advice to the farmers that they should contact their respective growers associations was correct but since a J. T. employee was direcily involved, the applicant had a greater responsibility to take further action on the matter or escalate it. She admitted that the applicant was not available for the police investigations. She also said that J.7.| is responsible from plantation of tobacco as they offer extension services and loans and as such they were also responsible for the tobacco bales. When asked whether incidents of missing tobacco during transportation have ever happened before she answered in the affirmative and on whether compensation was paid by J. T.l she answered in the negative but said that in the instant case, it was because of the direct involvement of a J. T.1 employee, Chifundo Kalambo that made them pay compensation to the farmers herein. Lastly, Emily Mwinjiro, the Respondent's Humana Resources Manager said that she has no knowledge of tobacco transportation procedures as she is not in operations. However she said that J. T. is not responsible for transportation of tobacco. She further said that the applicant was negligent because he was the supervisor of Chifundo Kalambo. She defined gross negligence as complete disregard to one’s duties that are assigned to them. She confirmed of similar incidences of missing tobacco bales happening before but no compensation payable to the farmers by J. T. 14 Reaching this far, this court's duty is to examine the substantive correctness of the Respondents decision to terminate the employment of the applicant herein as the law is to the effect that not only should the employer state the reason but he must also provide any evidence he may have in support of it. This is because of the self-evident argument that in view of the employee's constitutional right to fair labour practices provided for in section 31 (1) of the constitution, an employer ought not be allowed to get rid of him on the basis of unsubstantiated allegation. See Chilumpha, Labour Law in Malawi, 2004. P. 458. In Mahowe V. Malawi Housing Corporation, Civil Cause Number 63 of 2003 {HC}, the court stated as follows: “The court usually examines the reason given for termination of employment and the act of misconduct and try fo find out if the termination is justified. If the reason is not supported by the evidence the courf may conclude that there was no justification for the plaintiff's dismissal.” Thus in our analysis of the evidence and the applicable law, we are of the considered view that J. T.l’s Compensation of the farmers was irregular and contrary to their policies, as submitted by the applicant. Indeed the evidence provided by the applicant to state that J. T.|. only assumed responsibility when the tobacco was brought from the Auction Floors was never controverted by the Respondent's witnesses. The contract in which the farmers and J. T.| agreed was clear when J. T.| assumed responsibility of the tobacco on both the risk transfer and ownership. This having said, we agree with the Respondent that the applicant as Kalambo's Supervisor had an undoubted duty to take leadership of the situation and help the growers herein. However, the issue here is whether in the circumstances of the case, the applicant abdicated his responsibility and refused to offer any meaningful help to the growers as a result of which the company suffered financial loss. We have considered the weight of evidence attached to this assertion and we find it so waking as to reach this conclusion. The applicant explained how he had handled the situation in relation to the company’s applicable procedures and policies and said that when the farmers said they were going to report the matter to police, he could not restrain them knowing that the same was also an option of tracking down the allegedly missing tobacco and the perpetrator thereof. We have been referred to the case of Gawani V. Malawi Posts Corporation (IRC) 275 of 2004 (2006) MW IRC 21 by the applicant whereby in that case the applicant was directly involved with the handling of parcels as was the requirements of his terms of employment. The parcels as under his custody went missing and he was terminated for gross negligence for failure to take reasonable care of these parcels which led to losses for the company. Based on the authority of this case, 15 the applicant submit that in the instant case, the applicant was never directly involved with transportation wherefore he could not have grossly negligent. We so agree. Further, the law is to the effect that even if the employer gives the employee a valid reason for his dismissal and, where the reason is connected with the employee's capacity or conduct and affords him an opportunity to be heard that will still not be enough to make the dismissal fair. This is because, additionally, the employer must show that in the circumstances he acted with justice and equity in dismissing the employee. See section 61 (2) of the Employment Act. See also Chilumpha, Labour Law in Malawi, 2004 p.p. 491 — 93. The author proceeded to state what the words justice and equity denotes as follows: “However the words denote the same thing. Fairness, right dealing and being reasonable. In other words, they imply the absence of any arbitrariness, (aprice or high - handedness.... Thus the question whether or not the employer complied with that provision will require an examination of the whole list of relevant events that culminated in the end of the employment relationship. Clearly the courts task will be to determine whether, faking into account that whole history and the reason given by the employer for his decision, the employee had to be dismissed or could have been treated differently .... Inevitably, the inquiry will involve consideration of issues of both substance and procedure....” The author then quoted the House of Lords case of Polkey V. AE Dayton Services Lid, (1987) 3 ALLER 974 p. 983 before proceeding as follows: “Thus at the substantive level, the Court will have to go back to the reason given for the employee's dismissal and establish whether it is genuine and sufficiently supported by available evidence. In this connection the Court will also have to determine whether the reason would justify summary dismissal under section 59.... And at procedural level, there will be need to consider whether any procedures stipulated by the contract of employment or the terms and conditions of employment were exhausted before the employment was brought to an end .... In the end, therefore the question of whether or not the employer acted with justice and equity is essentially about whether it was fair for him to have dismissed the employee for the reason given. And clearly that will involve consideration of the procedural as well as the substantive aspects of the process culminating in the employee's dismissal.” Bringing the entire evidence to scrutiny with the applicable law, this court opines that the reason for the applicant's dismissal could not be supported with the available evidence and further that it was not justified. The Respondent has failed 16 to discharge its burden of substantiating the reason (s) for the applicant's dismissal as per section 61 (1) of the Employment Act. Above all, the Respondent, in dismissing the applicant did not act with justice and equity as if could have treated the applicant differently in light of the mitigations proferred during disciplinary hearing and also regard being had to ifs Disciplinary Code, Grower Copy on Policies and Procedures on transportation of tobacco and Transfer of Risk and Ownership. Accordingly it is found that the applicant was unfairly dismissed and should be compensated for the same. On repatriation, the same is guided by the contract of Employment and Conditions of services. Since we have not been referred to or provided with a copy of the contract of employment/conditions of service, we reserve the same to the hearing on assessment. Any dissatisfied party has the right to appeal to the High Court as per the provisions of section 65 of the Labour Relations Act within 30 days from the date hereunder. Dated 20 day of January, 2020 at Mzuzu. K. D MLUNGU DEPUTY CHAIRPERSON EMPLOYERS’ PANELIST Wrnicrbeves MR ALEXANDER LUNGU EMPLOYEES’ PANELIST 17