IN THE INDUSTRIAL RELATIONS COURT OF
MALAWI

PRINCIPAL
REGISTRY

MATTER
NUMBER IRC 217 OF 2004

BETWEEN

ASIDI……..……..……...……………………………...…………………..
APPLICANT

-and-

MALAWI SAVINGS BANK
LTD…………..………...……………...RESPONDENT

CORAM: R
ZIBELU BANDA (MS); CHAIRPERSON

MRN PADAMBO;
EMPLOYEES’ PANELIST

JE CHILENGA;
EMPLOYERS’ PANELIST

Tchaka; For the
Respondent

Applicants; Present

Nyabanga;
Official Interpreter

JUDGMENT

1. 
   Dismissal-Reason for
   dismissal- Misconduct- Misuse of company vehicle
2. 
   Procedure- Opportunity
   to be heard- and defend oneself-Employee to be given a chance to
   explain his side and defend himself

Facts

The applicant was employed
as a Driver in 1996. On 4 April 2000 his services were terminated for
misusing company vehicle. It was
alleged that the applicant was seen
driving and picking up unauthorized passenger in a company vehicle at
a time when he was not
on duty. The applicant challenged the
termination because he was not given an opportunity to be heard. The
respondent alleged that
the applicant was heard through a telephone
conversation that the applicant’s immediate supervisor had with the
applicant while
the applicant was away on duty to Lilongwe.

Reason

An
employer is entitled to terminate the services of an employee who is
guilty of misconduct inconsistent with the fulfillment of
the
expressed or implied conditions of his contract of employment, see
section 59 of the Employment Act. In this case the applicant
was seen
driving a company vehicle at a time when he was not duty. The car
according to the respondent should have been packed
at the office.
Misuse of company property has been held in this court to constitute
a valid reason for termination of employment;
see Hamuza
and another v Dwangwa Sugar Corporation
[Matter Number IRC 169 of 2004 (unreported)]IRC.

Procedure

The applicant
alleged that the reason was not substantiated and that if he had been
given a chance to explain what happened he would
have defended
himself. He alleged that he was not given an opportunity to defend
himself. The court agreed with the applicant.
Although misuse of
company vehicle is a valid reason for termination, but before the
termination the employee must be afforded
an opportunity to explain
his side of the story and to defend himself. In this case, the
applicant was not given that opportunity.
A telephone conversation
like the one that happened in this matter could not be said to
constitute a fair hearing envisaged under
section 43 of the
Constitution.

Finding

The Court finds that the
respondent did not comply with the law. Although the reason might in
other cases be valid, in this matter
the procedure leading to
termination was not fair. Perhaps if the applicant was given a fair
hearing he would have defended himself
against termination. This
termination was therefore unfair.

Assessment
of Compensation

The applicant is entitled
to an award of compensation as pleaded. The court shall set down a
date to assess compensation. Both parties
shall be required to attend
the assessment.

Any party
aggrieved by this decision is at liberty to appeal to the High Court
within 30 days of this judgment.

Made
this 31^st
day of December 2007 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Maxwell
RN Padambo

EMPLOYEES’ PANELIST

Joel
Evalisto Chilenga

EMPLOYERS’ PANELIST