Mbowe v Illovo Sugar Company (IRC MATTER 20 of 2011) [2019] MWIRC 15 (29 October 2019)

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 20 OF 2011 BETWEEN THOMAS MBOWE.........0:0cecesecececncececeeseeceeeecersererecenes APPLICANT ILLOVO SUGAR COMPANY seesscssussssssssveeresnecnysosaenennenas RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELIST MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR JOSEPH KAMSESA, RESPONDENT’S COUNSEL APPLICANT/PRESENT/UNREPRESENTED MR HEZRONE MHONE, COURT CLERK JUDGEMENT 1. INTRODUCTION The applicant commenced this action against the Respondent claiming damages for unfair dismissal, terminal benefits and leave pay. The Respondent disputes these claims as it contends that the applicant was lawfully/ fairly dismissed and was duly paid his terminal benefits and was also repatriated to his home village. 2. APPLICANT’S EVIDENCE Briefly, the applicant gave evidence that he was employed as a Plant Operator having joined the company in 1996. He said that on 29th August, 2011 whilst working at one of the Respondent's sugar fields, the farm manager visited them after lunch hour and directed them to go to another field Upon its completion. He then left only to return and confronted him and his colleague with allegations of siphoning diesel from tractors which they denied. He then took them to the filling station for refueling in the tractors and his tractor was filled with 86 litres. From there they went to the Farm Manager's Office where he told them that the applicant had a shortage of 22 litres, which he denied. He then told them to go home pending investigations. After two weeks he called them and informed them that they were suspended from duties pending disciplinary hearing which was conducted on the charges boardering on theft of fuel. He said he was found guilty of the charge and was dismissed although there was no evidence of wrongdoing on his part. He appealed the verdict after three days but the dismissal verdict was upheld. He went on to say that during the disciplinary hearing they were forced to just admit the charges so that they can be reinstated but he refused whilst his colleague did and was reinstated. He said when he was repatriated to his home village in Karonga he complained at the District's Labour Office who summoned the Respondent but they maintained their dismissal stand hence bringing the present action in this Court. 3. RESPONDENT’S EVIDENCE RW1: MR JOSEPH KAMSESA The Respondent called its first witness, Mr Joseph Kamsesa. He testified that on the material date the applicant and his colleagues were working in one of the Respondent's estate when its Farm Manager, Mr Alex Lwesya got a tip off anonymous to the effect that the applicant was siphoning fuel together with his colleague. He returned to the farm but did not find the applicant and his colleague and after waiting for a while, the two emerged and were confronted as to where they had gone and they replied that they went to drink water. He then took them for refueling and the applicant's consumption rate was 21.5 litres per hour instead of the normal 11.3 litres per hour. By then the applicant had worked for only four hours and as such marrying this finding with the tip off anonymous call, the manager suspected them of theft. The Respondent having formed a view that the applicant had a case to answer, they instituted disciplinary proceedings whereby he was found guilty and was dismissed. The 2 applicant appealed against this decision but the Appeal Authority upheld the initial decision. The witness then tendered a bundle of documents which was marked as Exhibit JK1 to JK14. RW 2: ALEX LWESYA The Respondent's second witness was Mr Alex Lwesya who is its Area Manager. His evidence is to effect that he's the one who confronted the applicant on the allegations of theft of fuel at one of the Estates upon receiving an anonymous tip off from a well-wisher. His evidence is materially similar to that of RW1, except to add his was a detailed one in as far as how the apprehension of the applicant and the refuling of fuel in his tractor and that of his colleague is concerned. This witness went on to state that they went to the filling station with the applicant and his colleague to confirm whether the fuel syphoning tip off was true or not and they confirmed in the affirmative through the fuel consumption of the tractors, that is to say, the applicant's tractor had a higher fuel consumption rate than the normal one. 4. ISSUES (i) Whether the applicant was unfairly/ unlawfully dismissed or not; (ii) Whether the applicant is entitled to the reliefs sought. 5. APPLICABLE LAW AND ITS ANALYSIS IN RELATION TO THE EVIDENCE 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 for such a termination connected with the capacity or conduct of the employee or based on the operational 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. Section 58 of the Employment Act provides that: ‘A dismissal is unfair if it is not in conformity with section 57 or is a Constructive dismissal pursuant to section 60” Section 61 provides that: (1) In any claim or complaint arising out of a 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; (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 alll circumstances of the case, he acted with justice and equity in dismissing the employee. In case of Banda v. Lekha (2008) MLLR 338, the IRC held 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 said that, it is the duty of the employer to show that the dismissal was lawful and justified on a balance of probabilities. In the present case, applying the law to the evidence herein, this court proceeds as follows: The respondent stated that its management established tip off anonymous facility which was used by Mr Lwesya, the Area Manager, to confront the applicant and took him to the filling section for confirmation whereby it was found that the applicant's tractor consumption was very high in the circumstances with about 40.8 litres as shortage. That following this shortage suspicion, the Respondent conducted internal investigations; suspend the applicant and then summoned him for a disciplinary hearing which found the applicant guilty on the said charge. That the applicant appealed against this decision of dismissal but the Appeal Committee upheld the guilty finding and the subsequent dismissal. The applicant does not have qualms with the empanelling or the constitution of the Committee of the disciplinary hearing and how it conducted the proceedings. He only complains of the insufficiency of evidence to the effect that he had indeed stolen the fuel in question such as the tin of the said fuel and the acquittal of his colleagues on the same charges. On the ground of appeal that the fuel gauge was not functioning well and other grounds of appeal filed by the applicant, it was incumbent upon him to cross- examine the two Respondent's witness to establish the veracity of their testimony and to disprove the theft allegation. The applicant failed to do so. The basis of the Disciplinary Committee's decision to the effect that the applicant had syphoned the fuel from his tractor was that the fuel consumption was high on 29!» September 2011 being 21.5 litres as opposed 4 to 11.3 litres and that even the applicant himself expressed surprise with such an increase in consumption yet he had worked full time alone the previous day. Again, the committee found that time taken between past 5 am to 7 am the time he arrived at the field from the Pool Yard was too long such that something fishy could have been done. These factors combined made the committee to reach the decision they made and the Appeals Committee upheld it. Such being the state of affairs, this Court is of the considered view that the Respondent had valid grounds to terminate the employment of the applicant and we cannot fault the said decision. The applicant was heard and he does allege any procedural impropriety on the same implying that the Respondent herein acted with justice and equity in dismissing the applicant. Thus, it is found that the Respondent complied with sections 57 and 61 of the Employment Act and as such this Court cannot interfere with the decision of the Respondent. To that end the claim for compensation for unfair dismissal is hereby dismissed in its entirety. On the claim for terminal benefits, the Respondent has adduced evidence to the effect that following the applicant’s dismissal on 27% September, 2011, he was paid his terminal benefits and was repatriated to his home. See exhibit JK 9, JK 10, JK 11, JK12, JK12 and JK 14. The applicant has failed to challenge such evidence of payment. So, this claim also fails in its entirety. Any aggrieved party has got the right to appeal to the High Court within 30 days from the date hereunder as per the provisions of sections 65 of the Labour Relations Court. MADE: This 29th day of October, 2019 at Karonga K. D aukeu DEPUTY CHAIRPERSON = C. T. NYIRENDA EMPLOYERS’ PANELIST dew A. B LUNGU EMPLOYEES’ PANALIST