Zikhole v Blantyre Water Board (IRC MATTER 117 of 2017) [2019] MWIRC 16 (10 December 2019)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI SITTING AT MZUZU 1. R. C. MATTER NUMBER 117 OF 2017 VISION ZIKHOLE....cccereryesreenmnadiseyiontewenncaned Mantiyessummnnmes APPLICANT BLANTYRE WATER. BOARD. ........ssuiyasgrerenesessiaweawiernenanna RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELIST MRS MERCY KACHALE, EMPLOYEES’ PANELIST MR GEORGE J. KADZIPAYIKE, APPLICANT'S COUNSEL MISS ISABELL MNDOLO, RESPONDENT'S COUNSEL HEZRONE MHONE, COURT CLERK JUDGEMENT 1. BACKGROUND/INTRODUCTION The applicant is an ex- employee of the Respondent. He was engaged as a Meter Reader in 2005 until his dismissal on 23'¢ July, 2010, for allegedly gross negligence of duty. The applicant appealed against the decision to dismiss him but the decision was upheld. The applicant then commenced these proceedings against the Respondent claiming damages for unfair dismissal; payment of severance allowance; damages for unfair labour practices; Notice Pay with interest; and fringe benefits. His contention is that the Respondent breached his rights to be heard and that he was dismissed for no valid reasons. The Respondent is challenging the proceedings contending that the applicant was fairly dismissed as there was a valid reason for his dismissal, namely gross negligence of duty whereby the applicant overstated a water bill of one of tne Respondent's customers, Standard Bank Limited to the tune of Mk3,616,485.00 which the Respondent had to refund plus interest, and the applicant was accorded an opportunity to defend himself before he was dismissed: as such the applicant is not entitled to the reliefs he is seeking. 2. THE CASE Hearing of the matter took place on 215! September, 2018 and 27! Sepiember, 2018. The applicant was the sole witness for his case whereas the Respondent called Mr Jennings Samu, the Human Resources Officer as its only witness. 3. ISSUES FOR DETERMINATION (i) Whether or not the reason for the applicant's dismissal was valid. (ii) Whether or not the applicant was accorded a fair hearing i.e. whether the Respondent infringed the applicants right to be heard. (ili} Whether the applicant was unfairly dismissed entitling him to the remedy of compensation and other reliefs sought. 4. THE APPLICABLE LAW Section 43 of the Republican Constitution provides for fair administrative action when it requires that administrative action should be justifiable in relation to the Reasons given and that the person affected should be furnished with tne reasons in writing for the administrative action being taken. Section 41 (3) of the said Constitution provides fhat: every person shall have the right to an effective remedy. 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 fo section 60’ Section 57 of the said 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 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 fo provide the opportunity’ Section 61 of the same Employment Act provides: “(1) in any claim or complaint arising out of the dismissal of any 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” Section 63(1) provides for the remedies available to an employee where the court finds that he was unfairly dismissed. In Jawadu V. Malawi Revenue Authority (2008) MLLR 397, Potani J. stated that a fair hearing is an employer's justification for terminating employment. On page 408 of the judgment he said: “The burden of showing a reason for dismissal and substantiating it is on the employers; see sections 57 and 61 of the Employment Act 2000. Where the employer fails fo prove the reason on a balance of probabilities there is a conclusive presumption that the dismissal was unfair.... In defermining whether a reason was valid under section 57 (1) of fhe Employment Act, 2000, the Court must consider whether the employer acted with justice and equity in considering that reason as valid for dismissal... The employer must justify it with evidence.” 5. ANALYSIS OF THE EVIDENCE IN RELATION TO THE APPLICABLE LAW (i) Whether the applicant's right to be heard was _ infringed by the Respondent. The applicant submits that he was not accorded a right to be heard since the Respondent did not furnish him with charges in writing when calling him to a disciplinary hearing but only verbally summoned him. Further that the Respondent failed to furnish him with the evidence they would rely on during the hearing of the applicant so as to have a chance of contradicting or correcting the allegations made; and finally that the Respondent failed to accord the applicant a fair appeal hearing as per the conditions of service regulations when the appeal hearing was not held. To buttress the first and second points, it is argued for the applicant that to accord an opportunity to be heard to an employee, case law provides that the Respondent should furnish the applicant with a formal written notice of disciplinary hearing with charges written in detail and specificity; The Respondent needs to attach the evidence of the allegations together with the charge for the applicant to be able to know the case that is before him and to adequately orepare to contradict or correct them. ' They thus cite case of Mchawi V. Minister of Education, Science and Technology (1999) MLR 167 (HC}, where, Kumitsonyo, J. emphasized that this “right is expressly written and protected by section 43 of the Malawi Constitution” He thus went a head to analyse the questions a Court has to ask itself inorder to ascertain whether the right fo be heard was upheld or not: "The questions which | must pause now for answers are as follows: (1) Was the applicant given notice in writing of charges of his misconduct? (2) Was he charged of the offences of such misconduct? (3} Was he heard in answer to those charges by an unbiased and independent tribunal? My finding are that the answers to all these questions are in the negative. The applicant had not been given nofice in writing of the charges of his misconduct. Neither was he charged with the offences of such misconduct nor was he heard in answer fo those charges in defence of himself before an unbiased and independent tribunal. The applicant was not given an opportunity to prepare his defence and defend himself” To that end the Court concluded as follows: “| find therefore that the minister did not give the applicant a fair hearing when he made his decision” The applicant herein proffered the issue of being given a disciplinary notice/letter after the disciplinary hearing as one of the grounds of appeal against the decision to dismiss him from the Board's Service. Yet the Respondent has exhibited JS 3 as da notice of disciplinary hearing to the applicant and it is dated 25!" June 2010. Now the decision of appeal signed by the Chief Executive, A. M Thawe, in Upholding the verdict of the applicant's dismissal does not dispute in any way this ground in explicit terms but rather there is a general reference jo the consideration of the grounds of appeal. So if the applicant maintains that the said notice was not given to him prior to the date of the hearing but rather after the disciplinary hearing herein, if is more probable than not that this was the case. We are further fortified on this finding with the fact that the said JS 3 does not indicate anywhere where the applicant signed this document as proof of being served and there is no date when the said service was accepted by him. As such we find that the Respondent summoned the applicant to a meeting and afterwards handed him the notice of the said disciplinary hearing. Going by that finding, we wish to agree with the sentiments expressed by Mtegha, J. When he quoted Lord Denning on what the right to be heard entails in the case of Zodetsa and others V Council for the University of Malawi (1994) MLR 412 (HC) “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 fo Know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity fo correct or to contradict them” Likewise, the High Court put it as follows in the case of The State V. Council of University of Malawi, Ex Parte Msukumwa (H. C) Misc. Civil Cause No. 50 of 2006: “If one is to answer any charge, particulars of the same should be given to afford the accused a clear outline of the nature of fhe charge so that he is able to ably defend himself or herself. | say to ably defend himself fo mean to equip oneself with the necessary ammunition. If is not enough to give someone the right to be heard or to defend himself if he or she was deprived of adequate notice to ably defend oneself or the charge was so general that the accused fails to make a meaning defence. One should not say | understand | have a charge, they will make it clear to me during hearing time. Before the time of hearing the accused must be clear in his mind about the nature of the charge. Just to say come and answer charges... and no more is so lacking and inadequate since it is devoid of particulars.” Thus, the Respondent breached its own Disciplinary Procedure as per its Disciplinary Code, article 11 (a) and (b) On the issue of appeal, we wish to agree with the submission of the applicant. On page 14 of the Respondent's Disciplinary Rules, there is provided the appeal procedure. It is to fhe effect that an appeal has fo be submitted to the secretary of the Board who will then arrange a hearing and the employee must state clearly in writing the grounds for the appeal. On the notes thereof, Note (a) suggests thal the appealing employee should attend the appeal hearing and if he or she fails io attend, it may be post poned. However, if the reason for absence is known and is not acceptable, a decision may be taken in the employee's absence. On page 15 of the said Rules, it is provided “Minimum Level of Management Authorized to implement the Disciplinary Procedure.” Employee level below Grade 7, to which we believe, ine applicant herein falls, the Appeal should be headed by the Chief Executive assisted by two Heads of Depariment. Coming fo the instant case, there is no evidence from the Respondent proving that an appeal duly constituted in the manner provided for sat to hear the applicant in his appeal and then made a determination. No notice to the appeal hearing has been filed or tendered by the Respondent. There are no minutes for the said appeal hearing to indicate what was the coram and what transpired, Exhibit V 26 which is a Jetter from the Chief Executive A. M Thawe dated 24h August, 2010 and headed ‘Appeal hearing’ is just a communication to the applicant as regards to the decision of the appeal hearing. It is not an evidence in itself that the appeal panel duly constituted heard and deliberated and then determined the applicant's appeal. The Respondent is required to hold the appeal hearing and not only be seen as if they are according an employee such an appedl. So, by nof holding an appeal hearing properly so called, the Respondent infringed the applicant’s right to be heard. And as such we find that the questions that Kumitsonyo, J paused for answers in Mchawi’s case, supra, are to be answered in the negative. (ii) Whether the Respondent proved and justified that the applicant was dismissed on a valid reason. This court in the case of David Mbalangwe and 8 others ~V- Attorney General (Ministry of Agriculture) Matter No. IRC 126 of 2017 held that if is fhe duty of the employer (Respondent) to prove that the dismissal was lawful both substantively and proceaurally and that the standard of proof is on a balance of probabilities. The couri opined as follows: “In all dismissal cases, 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 to give or substantiate the reason they give, there is a presumption that the dismissal was unfair” This court having analysed evidence from both the applicant and the Respondent has come to the conclusion that the totality of the same when subjected to scrutiny with the applicable law, the Respondent was justified on the balance of probabilities to dismiss the applicant for negligence of duty as he had not been faking meter readings and was just using estimates. The reasons as contained in the Dismissal letter marked as exhibit VZ 3 were valid and cannot be faulted. 6. CONCLUSION This court has found that the Respondent complied with section 57 (1) and 61 (1) of the Employment Act in as far as the validity of the reason (s) for dismissal is concerned. This cour! nowever finds that the Respondent breached the applicant's right to be heard as provided for in section 57 (2) of the Employment Act and that it did not act wiih fairness and equity in dismissing the applicant as per section 61 (2) of the said Employment Act in the circumstances of the case. Such being the case we find that the applicant was unfairly dismissed and we so find as is put below: Section °° of the Employment Act states that ‘ A dismissal is unfair if it is not in conformi'y with section 57 or is a constructive dismissal pursuant to section 60’ So from : ection 57 (1) and (2), it is clear that if employer provides an employee with both valid reasons for the termination of the contract of employment and an opporiuniiy to be heard before the employment is brought to an end, what would olnerwise have been unfair dismissal becomes a fair termination of tne contrac!. As if was stated in the case of Friday Gibson Fote -V- Limbe Leaf Tobbacco Compan, Lid, IRC Matter No. 156 of 2009, per N'riva J, (When he was the Deputy Chairocson of the Court} that: “For this claim to succeed there must be a dismissal. For a dismissal not to be unfair, ine reason for dismissal has to be valid and the employee has to be accor. an opportunity to defend herself. Section 58 of the Employment Act is the aul. ority for this proposition. If the opposite is the case, the dismissal is unfair. That is io 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 a accorded a chance to defend nerself. In short, before 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 heara) and substantive fairness, that is, the genuinessess of the reason for dismissal” 7. REMEDIES The applicant is entitled to compensation for unfair dismissal and payment of severance allowance to be assessed. Right of Appeal Explained as per section 65 of fhe Labour Relations Act. Dated (\is 10‘ December, 2019 at Mzuzu. MISS C. T. NYIRENDA EMPLOYERS’ PANELIST MRS MERCY KACHALE EMPLOYEES’ PANALIST