Court name
Industrial Relations Court
Case number
IRC Matter 365 of 2005

Chamba & Ors. v Tourism Investments Ltd t/a Hotel Victoria (IRC Matter 365 of 2005) [2008] MWIRC 2 (29 January 2008);

Law report citations
Media neutral citation
[2008] MWIRC 2
Coram
Null





IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI




PRINCIPAL
REGISTRY




MATTER
NO. IRC 365 OF 2005




BETWEEN





CHAMBA
AND OTHERS …………………………………………….
APPLICANTS





-and-





TOURISM
INVESTMENTS LTD T/A
HOTEL VICTORIA
…….. RESPONDENT




CORAM: R.
ZIBELU BANDA (Ms); CHAIRPERSON

Malijani,
A; Employers’ Panellist

Padambo
M; Employees’ Panellist

Chirwa,
JM; Of Counsel for the Respondent

Kacheche;
O
f Counsel for the Applicants

Chinkudzu
(Ms); Official Interpreter





JUDGMENT


  1. Dismissal-Reason-Refusal
    to take lawful instructions-Refusal to go on transfer


  2. Overtime-Proof-Employee
    to prove entitlement to overtime


  3. Deductions-Lawful
    deductions from employee-An employer entitled to deduct money from
    an employee’s wages as restitution-For
    property damaged by the
    employee


Facts


The
applicants were employed by the respondent as Waiter, Porter and
Conference Assistant. They were dismissed for refusing to take
lawful
instructions from their Supervisor. They
were advised to go on transfer to another of the respondent’s
establishments. They were
to perform the same functions and to retain
the same terms and conditions of employment. The applicants refused
to take this transfer.
The respondent invited them to explain why
they were not willing to take the order. The applicants’
explanations were not satisfactory,
hence the termination. They
alleged that the reason for termination was unfair and took out this
action. The respondent’s averred
that the reason was valid, the
applicants were given an opportunity to be heard and the termination
was therefore fair.




The
first applicant Mr Chamba also claimed overtime pay. He alleged that
he worked overtime but he was not paid. The respondent
disputed this
claim. The first applicant also claimed MK 3 840-00 which he said was
unfairly deducted from his salary. The respondent
contested this
claim as well.








The
Law


Refusal
to take lawful instructions from a Supervisor is a valid reason for
dismissal; see section 59 of the Employment
Act. Refusing to go on transfer is an act of insubordination. It is
tantamount to refusing
to take lawful instructions from an employer.
In this court it has been held that refusal to go on transfer without
any valid grounds
is a valid reason for dismissal see:
Mendulo
v Malawi Revennue Authority
[Matter
Number IRC 161 of 2003 (unreported)]IRC.




In
the instant case it was not in dispute that the applicants refused to
go on transfer. Their reasons for refusing to take this
instruction
was not valid. Their terms and conditions of employment were not
going to change and they were to operate from within
the same city of
Blantyre. There was not any substantial detriment or inconvenience
that was shown to affect the applicants by
reason of this transfer.




Finding


The
termination was fair. Th
e applicants were
dismissed for a valid reason. They were given an opportunity to be
heard. The action is dismissed in its entirety.




Overtime


There
was a claim for Overtime. This claim was not substantiated. No
evidence was given to prove that the applicant had worked overtime

and that he was not paid. In all overtime
claims the onus is on the employee to prove that he had worked
overtime and that he was not paid. This claim fails.




Deductions


One of
the applicants
, Mr chamba, had his wages
deducted to reimburse the respondent for services provided to a
client served by the applicant but not
paid for. The conditions of
service for the respondent did not provide for such deductions.

However, section 56(4) and (5)
of the Employment Act provide that an employer may deduct a sum of
money from an employee as restitution for
property damaged by that
employee. It provides further that in taking this decision the
employer must take into consideration among
others the duties of the
employee and the penalty imposed on the employee.




In the
instant case the court heard that the applicant’s duties were that
of serving customers. He would take orders and provide
for the
client. The client would then make payment. The court heard that it
was the responsibility of the applicant to ensure that
clients paid
for services which he, the applicant provided. In this particular
case the applicant served a client who did not pay
for the services.
The respondent deducted money from the applicant as restitution.




Section
56(5) provides that the employer must act reasonably and in any event
a court must consider the penalty that the employer
imposes on an
employee. The court found that this deduction was unjustified. The
respondent did not convince the court that the
failure of the
applicant to get payment from the client arose out of negligence. The
court found that the applicant followed the
ordinary and normal
procedure for serving a client. It was unfair for the respondent to
deduct the money. The court orders that
this money MK 3 840-00 must
be reimbursed to the applicant with immediate effect.






Any
party aggrieved by this decision is at
liberty to appeal to the High Court in accordance with section 65 of
the Labour Relations
Act.








Made
this
30th
day of January 2008 at
BLANTYRE





Rachel
Zibelu Banda


CHAIRPERSON





Aiman
Malijani


EMPLOYERS’ PANELIST




Maxwell
R Padambo


EMPLOYEES’ PANELIST