IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
APPEAL NO. 6 OF 2003

BETWEEN:

PHARMANOVA
……………………………….APPELLANT

AND

MSUKU
…………………………………………RESPONDENT

CORAM: Chombo,
J

Chayekha
: Counsel for Appellant

P.
Msuku : Respondent Unrepresented

Njirayafa : Court
Official

Jalasi : Court
Reporter

JUDGMENT

Before
me is an appeal emanating from the decision of the Industrial Court
Chairman. Four grounds of appeal were submitted but
counsel
proceeded to argue grounds 1, 2 and 4.

The
back ground of the matter is that the Respondent was employed by the
Appellant as a van salesman. He rose to the position of
sales
manager for Central & Northern Regions. During this period there
were a number of shortages. The Respondent went on
sick leave for
some months. After he came back he was informed that his services
were terminated on health grounds and operational
necessity. The
Respondent sued the Appellant and the Chairman of the Industrial
Court found that the said termination was unlawful.

The
Respondent was awarded severance allowance, wages for 1^st
to 13^th
November 2000, overtime, leave, half pay for three months,
subsistence allowance, up keep, transport allowances and refund on
over deduction on house lease. The Appellant now appeals against the
ruling of the Chairman of the Industrial Court.

The
Appellant asked the court to quash the finding by the Chairman of the
Industrial Court that the termination of the Respondent’s

employment was un lawful. Counsel argued that in making this finding
the Chairman disregarded other important material evidence.
Evidence
was given that the Appellant Company had suffered stock losses.

A
brief review of the circumstances that led to the termination of the
Respondent’s termination is necessary.

The
Respondent became a senior staff member from 31^st
July 1996 as evidenced by APP.
EX 2
letter addressed to him by the Appellant’s Personnel and
Administration Manager. After assuming the senior position there
were
clearly some problems at the Lilongwe premises. Such problems
prompted the Respondent to take up some remedial steps. One of such

steps, which the Group Vice Chairman immediately resisted and
stopped, was customer stock checks. He had discovered during this

one time check that company property had been supplied by some high
ranking manager and that stocks had been supplied at prices
lower
than the agreed prices. He immediately came to the conclusion that
this was the reason for the un accounted for shortage
in the
warehouse. He reported the matter to the Marketing Manager with a
few other observations that he had made. One such observation
was
that his colleague called Kuntiya had complained that particular
products were missing from the warehouse and the van salesman
for
that zone had noted the particular customer was not buying from him.
This letter was written on 18^th
June 1999 and was exhibited and marked as APP
EX 5
but no response was made by the Marketing Manager to whom it was
addressed nor by the Personnel Manager to whom it was copied.

The
second remedial step that the Respondent took was to change the
warehouse keys upon noticing mysterious disappearance of stocks
from
the warehouse. Earlier a spare key of the warehouse had been given
to what the Respondent called SADM Management. This is
marked as APP
EX 8
and is dated 15^th
September 1999. Both letters contain some serious matters and one
would have expected that they would receive immediate attention.
I
have gone through all the exhibits on file and do not find any
responses to these documents by management of Pharmanova.

The
questions that any reasonable person would ask are:

1. 
   Can it be said that the
   Respondent was the sole person responsible for the shortages that
   are now being attributed to him.

   
   

2. 
   If indeed management
   was serious about the issue of the shortages why is it that measures
   were not taken to correct the situation
   as proposed by the
   Respondent.

   
   

3. 
   How would the Appellant
   account for the stocks supplied to some of their customers by
   management team? How did these stocks leave
   the warehouse? Were
   they properly accounted for? Why would a company of this magnitude
   allow other people other than the warehouse
   manager/ supervisor deal
   with all deliveries without proper accountability? It was
   interesting that instead of the Respondent
   being commended for these
   discoveries he got reprimanded by the Group Vice Chairman and told
   not to visit the beneficiaries of
   this dubious sale.

   
   

4. 
   It is established by
   the said APP
   EX 5
   and APP
   EX 8
   that the spare key to the warehouse was being kept by SADM
   Management, what assurance is there that these did not help
   themselves
   from the warehouse

   
   

In
these circumstances it would be unimaginable that the Appellant would
even begin to suggest or want to make court believe that
the
Respondent was indeed responsible for the alleged shortages. The
Respondent made queries about shortages in the Lilongwe warehouse
and
demanded explanations from the Respondent as shown by APP
EX 13
of 16^th
November, 1999 and APP
EX 14
of 3^rd
December, 1999. There are clearly follow-ups of the Respondents’
letters but instead of addressing the pertinent and crucial
issues
raised by the Respondent the Appellant are seeking explanations from
the Respondent. This does not seem to be reasonable
at all. The
Appellant submitted that the decision of the Chairman of the
Industrial Court cannot and must not be given any merit.
It is no
wonder that even in their letter terminating the Respondent’s
services the Appellant’s did not base such termination
on the
alleged shortages. If the Respondent’s services were terminated
due to the alleged shortages then the letter of termination
should
have specifically stated the same. It can only be assumed what was
the main ground of terminating the service is what was
stated in the
said letter. I have no doubt that the issue of the shortage only
come as an after thought.

According
to the court record the Appellant made a submission that:

“Some time in
November the Respondent went on sick leave. After recovery he wanted
to take up his position but the Appellant informed
him that his
services were terminated on health grounds and operational necessity”

The
impression that one gets from this narration is that the Respondent’s
services were terminated as a result of the Respondent’s
sickness.
The Respondent applied for sick leave for 8 months and it was
approved. It would seem from the record however that
the Respondent
only stayed away for just over 5 months. When he returned a medical
report certifying that he was fit to resume
work was also submitted
and was tendered in court as APP
EX 19(a).
in May 2000 the Respondent was allowed to resume work and he worked
up to November 2000 month and when he found that he was not
paid.
When he made enquiries he was informed by the Personnel Manager that
his services were terminated. During the period between
May and
November 2000 a number of things happened. He claimed substance
allowance for the 8^th
– 11^th
May because he was on duty in Blantyre [APP
EX 22];
he asked for refund for over deductions on house loan and leave grant
for the month of April; his medical report and inquired as
to why he
was still being paid half his salary when he had submitted a medical
report. His employer, instead of responding to
these issues wrote
the Respondent asking him to explain about certain shortages. In
October he was finally paid his full salary
and the following month
his services were terminated. As observed by the lower court it is
amazing that the services of the Respondent
were only terminated
after he returned from the prolonged sick leave and certified fit and
to work by a medical doctor. At a time
when the Respondent had asked
for retirement on medical grounds the Appellant did not respond to
the application but was willing
to sign leave forms and release the
Respondent on leave. Any reasonable person would conclude that if
the said letter was written
at the time of the Respondent proceeding
on sick leave or whilst the Respondent was on the leave it would have
been justifiable.
The Appellant’s letter gives one of the reason
for the said termination to be operational grounds; I have yet to
understand
how the operations of the Appellant were affected so many
months after the Respondent had returned to work. Counsel is on
record
as having said that “we submit that the termination would be
in line with section 57(2) of the Employment Act so the chairman

erred in not considering the relevant evidence and in taking a narrow
view in considering what 557(2) would mean. The law is clear
where
an employee has been conducting himself in a manner that affects the
trustworthiness of the employee – an employer is entitled
to
terminate because an employment relationship is built on confidence
and if the confidence is eroded such relationship cannot
be “insisted
on”.

This
submission by counsel seems to introduce a completely different
ground for the said termination than what was stated in the
letter of
termination to the Respondent. Section 43 of the Constitution
provides that “Every person shall have the right to
lawful and
procedure fair administrative action which is justifiable, in
relation to reasons given.

The
supreme Court of Appeal, in the case of Dr B.S. Chawani -vs- The
Attorney General MSCA NO. 18 of 2000, per Tambala JA, held
that:

“The purpose of
section 43 is clearly to ensure transparency in decision making where
the decision is likely to infringe the rights,
freedoms interests or
legitimate expectations of others. The section also was intended to
enable persons affected by administrative
actions to have adequate
opportunity to defend themselves

where
his her rights, freedoms, legitimate expectations or interests are
affected or threatened.”

Effectively. A
person would be able to present a good and effective defence to an
administrative action when he knows the reason
supporting the
action.”

The
Respondent letter of termination discloses one reason and the
Appellant alleges other grounds as the basis of the termination.

There clearly is no transparency and there would be no way for the
Respondent to defend himself effectively because the actual
reason
were not disclosed to him. This would be abuse of position as an
employer. I cannot but agree with the chairman of the
Industrial
Court, that indeed the termination was unlawful and I uphold the
lower court’s decision on this head.

The
Appellant contended that the chairman erred in finding that the
Respondent was staying in house and paying K8,000.00 as rent.
I have
looked at the whole evidence on record and, with due respect do not
find this particular head proved. In fact apart from
the allegation
made by the Respondent there is no documentary proof of the same.
The Chairman decided to take judicial notice
of the escalating
rentals. The Appellant has successfully argued the circumstances
where courts can take judicial notice of particular
matters and this
definitely does not fall in that category. A specific claim must be
specifically proved. In the absence of any
prove about the rentals
the court was wrong in finding that for the Respondent. Accordingly
I quash the decision of the lower
court.

The
4^th
and final ground of appeal is on repatriation allowance. It was
argued by the Appellant that the contract of the Respondent did
not
provide for that and that in the alternative if the Respondent is to
be repatriated them it must be to his place of employment
and in the
Respondent case of was Blantyre. The Appellant did provide transport
to the Respondent for Blantyre therefore the Appellant
must be taken
to have discharged their responsibility. The Respondent adduced to
the effect that he was actually told to get quotations
for the said
repatriation. Not only was the Respondent asked to bring quotations
but it was the practice of the Appellant to provide
repatriation
costs. The Respondent gave evidence of other employees in the
company who had benefited from this privilege. This
evidence has
not been disputed by the Appellant and I take it that though the
conditions of service do not provide but the Appellant
chose to
provide the same to its employees. In fact the Appellant did provide
repatriation costs for the Respondent to Blantyre,
for reasons known
to themselves. The Respondent has actually been given K20,000.00 by
the Appellant towards the same. The Respondent’s
only query is
that he was given money to go to Blantyre and not Nkhata-Bay his home
as indicated in all his records of employment.
The Respondent has
proved that there is a practice, despite the provisions of the
Employment Act and the conditions of service,
by the Appellant of
providing repatriations costs to its employees. It has not been
shown whether the repatriation costs are to
the place of original
employment or home of the employee. In the absence of any evidence
to the contrary by the Appellant I find
that I must uphold the
finding of the Lower Court in this respect. The Appellants sought to
rely on the ruling of
Kapanda, J
in the case of Liquidator,
Import and Export (MW) Ltd –vs- J.L. Kankwangwa and others
Principal Registry Civil Appeal case No. 52 of 2003 (unreported)
wherein the court was asked to determine, among other issues,
whether
the respondents were entitled by law to be repatriated to their home
districts regardless of the circumstances and/or place
of
recruitment. Justice
Kapanda
in that case stated that his decision was based on the consideration
that the company was in liquidation. He therefore ruled that:

“in the
circumstances of this case, and in the light of what this court has
said constitutes fair labour practices fairness should
have entitled
repatriating the respondents to their respective places of
recruitment or home origin, whichever is nearer.”

The
Respondent gave evidence, which evidence has not been disputed by the
Appellant that he was recruited from Mzuzu and not Blantyre.
The
Appellant should therefore have repatriated him to Mzuzu as opposed
to Blantyre. The Respondent is asking for repatriation
only to his
home, Nkhata-Bay and not Mzuzu. Nkhata-Bay is nearer to Lilongwe
than Mzuzu and, in line with the ruling of Kapanda,
J,
I uphold the Chairman’s ruling for the repatriation of the
Respondent to his home Nkhata-Bay and not Blantyre.

The
Chairman had ruled that whatever repatriation costs will be given to
the Respondent K20,000.00 already given to him should be
subtracted
from the said sum; and I so order.

The
Appellant’s appeal must therefore fail in respect of all other
grounds except the issue of the unproved rentals. I award costs
to
the Respondent.

Made
in open Court this 21^st
July, 2004.

E.
Chombo

JUDGE