IN THE INDUSTRIAL RELATIONS COURT
OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NUMBER IRC 360 OF 2002

BETWEEN

CHIMALIZENI……..……...……………………………..........................
APPLICANT

-and-

SECURICOR (MW)
LTD………..………...…………………………..RESPONDENT

CORAM: R
ZIBELU BANDA (MS); CHAIRPERSON

N KAJOMBO; EMPLOYEES’
PANELIST

J E CHILENGA;
EMPLOYERS’ PANELIST

Makalani;
for the Respondent

Applicant;
Present

Nyabanga;
Official Interpreter

JUDGMENT

1. 
   Dismissal-Reason-Loss
   of trust-Failure to safeguard client property

2. 
   Procedure-Hearing-Proof
   of hearing-Employer to show and convince court that employee given
   opportunity to explain his side and
   defend himself

Facts

The applicant was employed
on13 October 2000 as a Security Guard. He was dismissed on 22 April
2001. He was assigned to guard premises
of the respondent’s client.
On the material day the applicant knocked off from night duty after
guarding the respondent’s client’s
premises. Later it transpired
that some property had been stolen from the premises. The applicant
was responsible for ensuring
the safety of this property. However he
was not even aware of the theft. The applicant was dismissed with
notice for the reason
that the respondent had lost trust in him. The
applicant challenged the termination because he said he was not given
an opportunity
to explain his side and defend himself. He said that
he did not know the reason for the dismissal. The respondent alleged
that
the applicant was given a reason for dismissal and that he was
heard. They contended that the termination was fair.

The
respondent however was not able to show any record of the
disciplinary hearing. There was no notice to attend a hearing as is

the practice in the respondent’s organization. They did not inform
court who conducted the hearing, when it was heard and what

allegation was put to the applicant for his response. The court found
as a fact that the applicant was not given an opportunity
to defend
himself.

The Law

Section 57 of the
Employment Act 2000 provides that before a dismissal an employee must
be given an opportunity to be heard. He
must be allowed to explain
his side of the story; defend himself and make any submissions in
mitigation. This is to ensure that
a decision made does not
unnecessarily adversely affect the employee. It is aimed at
protecting employees from unilateral dismissal
without any valid
justification.

In this
case the applicant may have conducted himself in a manner that may
have warranted disciplinary action. Loss of trust is
a valid ground
for dismissal for an employer can not be compelled to retain in its
employment an employee that they have no trust
and confidence in. In
fact mutual trust is an implied condition of any contract more so an
employment contract.

However
before any termination is effected the employer is obliged by law to
give the employee a chance to explain his side. In
this case as
alluded to above, such opportunity was not given. There was no
evidence to suggest that the applicant was heard.
This made the
termination unfair.

Finding

The court finds that the
respondent violated the law more especially section 57(2) of the
Employment Act 2000. The termination was
unfair because the applicant
was not afforded an opportunity to defend himself.

Remedy

The applicant had worked
for less than one year. In fact he only worked for five months. The
reason for termination was valid. The
only mischief was that the
respondent did not give the applicant an opportunity to defend
himself. The applicant is still entitled
to a remedy. Under the
circumstances of this case, the factors leading to the termination,
the length of service and the nature
of the applicant’s job, the
court finds that an equivalent of two weeks wages will adequately
compensate the applicant. The applicant
was earning MK2 400-00 per
month. His compensation therefore is MK 1200.00. To be paid to
him through court with immediate effect.

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

Made this
30^th day of January 2008 at BLANTYRE

Rachel
Zibelu Banda

CHAIRPERSON

Nick
Chifundo Kajombo

EMPLOYEES’ PANELIST

Joel
Evalisto Chilenga

EMPLOYERS’ PANELIST

MY OPINION ON
THE MATTER NUMBER 360 OF 2002 OF CHIMALIZENI VERSUS SECURICOR.

REASON

NOT VALID
BECAUSE LACK OF TRUST IS NOT A VALID REASON AND WAS NOT EVEN
JUSTIFIED ALTHOUGH THERE WAS A DISCIPLINARY HEARING AS PER
EMPLOYMENT
ACT SECTION 61 SUBSECTION 2.

FACTS

3. HE WAS
   ACQUITED BY A COMPETENT COURT.

   
   

4. HE MADE
   HANDOVERS WHICH WAS NOT DISPUTED BY RESPONDENTS.

   
   

REMEDIES.

5. APPLICANT
   WAS CLAIMING SEVERANCE ALLOWANCE BUT ACCORDING TO RECORDS HE WAS
   PAID AND THEREFORE THIS FAILS.

   
   

6. I
   FEEL HE IS ENTITLED TO COMPENSATION ALTHOUGH HE WORKED FOR LESS THAN
   A YEAR.