IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 196 OF 2001

BETWEEN

KAMUNGU..………………………………………………
……………...APPLICANT

-and-

ADMARC………………………………………………...
……………..RESPONDENT

CORAM: R. ZIBELU
BANDA (MS.); CHAIRPERSON

A MALIJANI;
EMPLOYERS’ PANELIST

M PADAMBO; EMPLOYEES’
PANELIST

Nchembe; For Respondent

Applicant; Present

Chimkudzu; Official
Interpreter

JUDGMENT

1. Dismissal-
   Reason-Misconduct-Shortage

2. 
   Procedure-Right to be
   heard-Disciplinary hearing- Fair

Facts

The applicant was employed
by the respondent. At the material time he was responsible for
handling the respondent’s stork including
tobacco. The applicant
used to buy tobacco and other farm produce from farmers. He would
then remit such produce to the respondent’s
depots. It was found
that the applicant had remitted less tobacco than what he had
purchased and recorded in his books. The applicant
was invited to a
disciplinary hearing to explain the shortage. However the applicant’s
explanation was not convincing, hence
the dismissal. The applicant
was aggrieved and brought this action. The respondent averred that
the dismissal was fair.

The Law

Section 57(1) of the
Employment Act provides that before dismissal a person must be
provided with a valid reason. While section
57(2) of the act provides
that where the reason is connected with a person’s conduct, he must
be given an opportunity to be heard.

Several
cases have held that in all cases of dismissal, an employee must be
given a valid reason and an opportunity to state his
case and defend
himself. See for example: Beseni v Education Department of Nkhoma
Synod [Matter Number IRC 320 of 2002 (unreported)] IRC.

Misconduct
involving incurring shortages has been held to constitute valid
ground for dismissal, see: Ulaya v SDV (AMI) (Mw) Ltd [Matter
Number IRC 133 of 2001 (unreported)] IRC.

In this
matter the applicant admitted that he had incurred shortages in
tobacco. He also admitted attending a disciplinary hearing.
He said
he had a good reason for the shortage. He attempted to explain the
reasons for the shortage. The court was not convinced
with the
applicant’s explanation. The court found as a fact that the
applicant had incurred tobacco shortages and that he had
no good
reasons for the shortage to offer to the respondent at the
disciplinary hearing on the issue.

Finding

The court finds that the
reason for dismissal was valid and that the applicant was accorded an
opportunity to state his case before
dismissal. The respondent
complied with the requirements of the law. This action is therefore
dismissed in its entirety.

Any party aggrieved by
this decision has the right of appeal to the High Court within 30
days of this decision. Appeal lies only
on matters of law and
jurisdiction and not facts: Section 65 (2) of the Labour Relations
Act.

Made
this 4^th day of March 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Maxwell
R Padambo

EMPLOYEES’ PANELIST