IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CAUSE NO. 49 OF 1999

BETWEEN:

MRS E.N.
PHIRI………………………………………….PLAINTIFF

-
AND -

UNIVERSITY
OF MALAWI……………………………..DEFENDANT

CORAM: CHOMBO, J

Makono
of Counsel for the Plaintiff

Mtambo
of Counsel for the Defendant

Baziliyo,
Court Interpreter

Mbewe,
Court Reporter

JUDGMENT

By a writ of summons the plaintiff commenced
proceedings in this court against the defendant claiming a number of
reliefs according
to the Statement of claim:

1. 
   that she be
   reinstated in her employment

   
   

2. 
   or in the
   alternative, damages for unlawful termination of services to be
   assessed by the court

   
   

3. 
   costs of the
   action

   
   

The
background of the action was that the plaintiff was employed by the
defendant for the period of 2^nd
February, 1981 to 13^th
November, 1998. She was based at Kamuzu of College of Nursing as
the Home Sister responsible for the welfare of the students.
Her
duties included, among other things, looking after the linen at the
College. In 1998 it was alleged that she had failed to
return or
account for the said linen and therefore her services were terminated
without any benefits.

In
her evidence the plaintiff explained that the College had a system in
place for collecting and returning stores and that she
had to sign
for collections but when returning the linen the Store-keeper would
only ensure that the correct quantities had been
returned and no
document was signed. Apart from herself her assistant would also
collect linen on her behalf and the same was
not signed for. The
plaintiff stated that in 1997 she was sick and had to go to South
Africa for treatment. In her absence her
assistant used to collect
the linen from the stores on her behalf. The linen being queried was
collected by her assistant during
her time of illness and it was
never properly accounted for. She further testified that the College
only started demanding for
signing of documents on return of linen
after her case. She categorically denied being responsible for the
alleged missing linen
which she returned to the stores but the Store
keeper failed to account for it because of lack of proper stores
systems.

It
was also in her evidence that it was the practice at the College to
use old linen as cleaning materials, which were never signed
for. It
was also on record that there were other heads of departments who
used to requisition for and collect items from the stores
and they
too did not sign any document when returning these.

It
was learnt from the plaintiff that before her services were
terminated she had received letters asking her to explain the issue

of the missing linen and later she was called by the Disciplinary
Committee to clarify the matter further. As a result of the
hearings
at the Disciplinary Committee her services were terminated and she
was only given three months’ notice pay. She had
hoped that since
she only had 1½ years to go before her retirement that consideration
would have been made and a retirement package
included with her
terminal benefits. Instead she only got her pension contribution for
the 18 years, and even that without any
interest. In her evidence the
plaintiff tendered the letter terminating her services, marked as
exhibit P1. A copy of the minutes
of the Disciplinary Committee were
tendered and marked as exhibit P2 by the court. Exhibit P3 was the
Stores Issue Voucher that
the plaintiff had signed for the issue of
the linen in issue. The plaintiff elected not to call any witnesses
and she closed her
case. The defendant, in denying the plaintiff’s
claims called two witnesses and tendered a number of documents.

The
evidence of DW1 was that he is the Stores and Purchases Officer at
Kamuzu College of Nursing Lilongwe Campus. The plaintiff
was in
charge of students’ welfare and in charge of linen for workshops
and conferences at the campus. At one time the plaintiff
did not
return all linen taken by her. He asked her about the linen but she
did not give any explanation. He therefore wrote
her a memo dated
10^th
June, 1998 indicating the linen items taken and he attached to the
memo a copy of the Stores Issue Voucher (SIV) that the plaintiff
had
signed before the linen was drawn from the stores. The memo and SIV
were tendered by DW1 and court marked them as exhibit
D1.

DW1
testified that he reminded the plaintiff about the linen on several
occasions but there was no responsive action taken by the
plaintiff.
DW1 therefore brought the matter to the attention of the Finance
Officer by his memo of 21^st
July, 1998 with copies to the Principal and Registrar. This was
marked as exhibit D2. The Register followed up the matter with
a
memo dated 28^th
July, 1998 with a copy to DW1. The same was marked as exhibit D3.
After this memo the plaintiff brought back some of the linen

complained off and a Stores Receipt Voucher (SRV) dated 31^st
July, 1998 was issued to her as acknowledgement of receipt of the
goods returned. The same was marked as exhibit DW4. It was
noted,
and brought to the attention of the plaintiff, that there still
remained a balance of various linen items to be returned
by her
viz: 21 white bed sheets

25
white pillow cases

2
double bed sheets

6
double bed pillow cases

2
new pink bed sheets

2
pick pillow cases

The
Registrar wrote the plaintiff again on 7^th
September, 1998 reminding her about the outstanding linen items. But
the items were not returned. The memo was tendered as exhibit
DW5.
The witness also tendered the conditions of services which gives the
disciplinary procedures followed at the College – marked
as exhibit
DW6.

Prior
to the issue of the linen in question the plaintiff had failed to
account for various items and warning letters had accordingly
been
issued to her. When the plaintiff failed to return the linen items
the issue was referred to the Disciplinary Committee.
The plaintiff
was summoned by the Committee but failed to give satisfactory
explanation about the linen; and therefore her services
were
terminated in accordance with the conditions of service.

It
was the evidence of DW1 that when he joined the college in 1996 he
found that there were no proper stores systems in place.
He devised
his own systems and all linen leaving the stores was signed for both
on issue and on return. The linen in question
was issued to the
plaintiff and she signed for it and not her assistant but she never
returned all the items. Whatever she had
returned was acknowledged
by the plaintiff signing the SRV – exhibit D4.

Then
DW1 testified further that there was a time that the plaintiff’s
assistant was asked to collect items from the stores. All
linen
collected by Mrs Chiwoko on behalf of the plaintiff was signed for on
return. There were occasions when the plaintiff would
either collect
the things herself or send somebody else to collect the things on her
behalf. If she sent somebody she would always
phone to confirm she
had received the things in question. If there was any old linen to
be disposed off, DW1 explained, it was
the Board that would authorize
such disposals and not any employee single-handedly. DW1 showed from
conditions of service, marked
as exhibit DW6, that the respondent had
satisfied all the conditions set therein before terminating the
services of the plaintiff.

DW2
testified that he is the acting Registrar at the College. His duties
include management of human resources, College property
and secretary
to the CTC Disciplinary Committee.

He
joined Kamuzu College of Nursing in 2002 after the plaintiff’s
services had already been terminated. He learnt about the case

through files. He noted that the plaintiff’s services were
terminated on the recommendation of the Disciplinary Committee.

Prior to the said termination the plaintiff had received two warning
letters. The first warning letter was dated 18^th
November, 1993 and it was in connection with 16 missing mosquito nets
at the College. The second warning letter was dated 21^st
August, 1995 and it was in connection with missing beds at CHSU and
other management issues at CHSU. These were marked as exhibits
DW7
and DW8 respectively. The plaintiff’s services were terminated
after a Disciplinary Committee deliberated on the issue and
found the
plaintiff at fault. The minutes of the Disciplinary Committee
recommending the termination of the plaintiff’s service
were
tendered and marked as exhibit DW9.

The
evidence on record is to the effect that the plaintiff was employed
as a Home sister at the Kamuzu Collage of Nursing for a
period of
about 18 years. Among other things the plaintiff was in charge of
students’ welfare and linen. The plaintiff used
to get linen from
the stores in the course of executing her duties. She would sign for
the said collection personally or send
her assistant to collect on
her behalf. When DW1 checked through his records at one time he
noticed that linen collected by the
plaintiff had not been returned.
Several follow-ups were made and part of the linen was returned. DW1
kept pursing the plaintiff
to return the rest of the linen that she
had signed for but to avail. DW1 reported the matter to high
authorities who in turn
urged the plaintiff to return the linen but
to date the said linen has not been returned. DW1 clearly testified
that the particular
linen in question had been signed for by the
plaintiff. At no point in time did the plaintiff inform DW1 that the
linen under
query had been signed for by her assistant nor that the
plaintiff had given it to the drivers to use as cleaning material.
The
plaintiff does not dispute the main thrust of the case but only
complains that she was sent home without her terminal benefits after

serving the college for 8 years.

In
her evidence the plaintiff did not disclose that during the said
period she had received 2 warning letters on similar grounds.
But
when the issue of the warning letters was brought to light by the
defence witness she did not dispute the authenticity of
the letters
thereof. According to the conditions of services operative at the
time the plaintiff was in D-J category – Clerical
staff. In
matters of misconduct she was governed by the terms under Section G –
Conduct and Discipline and according to provision
2 of that Section
Misconduct is defined as:

“A staff
member is guilty of misconduct who:-

2(2) performs
his duties negligently.”

It was submitted that the plaintiff had performed
her duties negligently by failing to return the linen in question; in
addition
to the earlier acts of misconduct for which she had received
both verbal and written warnings.

According
to the Section B, No. 31

“A staff member who is guilty of
an act of misconduct as defined in Section C may be dismissed without
notice and without salary
in lieu of notice.”

The
Disciplinary Committee recommended, and the then Principal approved,
that the services of the plaintiff be terminated as opposed
to the
plaintiff being dismissed. The plaintiff therefore, in line with
provision 29 under the heading Termination:
received three months’ salary in lieu of notice and pension
contribution.

The
plaintiff in her evidence did agree that as far as requirements under
the conditions of service were concerned the University
had fulfilled
its part. She admitted being given an opportunity to be heard, being
paid three months’ salary in lieu of notice
and her pension
contributions. The cry of the plaintiff, in so far as I can decipher
through all the evidence on record is for
humanitarian consideration
for the termination to be turned into a retirement with full benefits
thereof.

The
question before court is to consider whether the plaintiff’s
termination was fairly done; and whether, in the light of the

circumstances, the plaintiff should be given her retirement benefits.
The conditions of service, exhibit DW6 defines misconduct
in Section
G – Conduct and Discipline under paragraph 2(2) and (13) as:

2. 
   performs his
   duties negligently.

   
   

13. 
    fails to take
    reasonable care of any University property in his custody or on
    charge to him or take such steps as are within his
    power to ensure
    that reasonable care is taken of any such property.

    
    

Evidence
has been given that the plaintiff after taking linen from the Stores
Department failed to return the same. Several reminders
were sent
which yielded some resulted. After several more reminders efforts of
the University to recover the linen were in vain.
Memos and letters
were submitted in evidence showing earlier incidences by the
plaintiff that had resulted in the loss of University
property or
negligence in the performance of the plaintiff’s duties.

The
plaintiff made efforts to absolve herself of the responsibility and
place it on her assistant. The efforts, I am afraid were
futile, as
evidence clearly indicates that the particular linen not returned to
stores was actually taken out and signed off by
her and remains
unaccounted for to date.

The
question one should ask therefore is whether the termination was
fair. The plaintiff admits being given an opportunity by the

Disciplinary Committee to be heard. After the said hearing the
commit recommended, after taking into consideration the plaintiff’s

past conduct, that the plaintiff’s services be terminated. The
plaintiff had earlier received warning letters on similar issues
and
it was felt that there had been no improvement in her conduct and
thus the termination. The defendant had done everything
needed to be
done to caution the plaintiff about her conduct with seemingly little
change. Then the defendant held a disciplinary
committee at which
the recommendation was finally made to terminate the plaintiff’s
service. The termination was therefore fair.
The plaintiff did
indicate that she still had about two or so years of service before
retirement and she was of the view that
the Principal should have
exercised discretion and allowed her to retire instead of her
services being terminated. But discretion
and entitlement are
completely different. As at the time that the plaintiff was being
terminated she had not fully served the
University to earn her
retirement. I want to believe that the Disciplinary Committee took
into account a number of issues before
recommending the termination.
According to the Minutes, exhibit DW8, it was the plaintiff’s past
conduct and the loss occasioned
to the University; and also how other
staff members with similar incidences had been treated that
determined the action taken.
I have no doubt at all that if this was
the first main incident, with a good past track record, the decision
would have been totally
different.

Having
said all that has been said, I therefore find that the plaintiff’s
claim must fail in its totality and I dismiss it. I
order that each
party bears its own costs of the proceedings.

MADE
in court this 12^th
April, 2006.

E.J. Chombo

JUDGE