IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE
REGISTRY

MATTER NO. 42
OF 2001

BETWEEN:

ANDREW W.
BESENI…………………………….……….APPLICANT

-vs-

EDUCATION
DEPARTMENT OF
NKHOMA SYNOD………………….………………RESPONDENT

CORAM: 

HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant – Present

Respondent – Absent

Mr. Davie Mpakani –
Official Interpreter

J U D G M E N T

This matter has been
brought by Andrew Beseni the applicant against the Education
Department of Nkhoma Synod who is the respondent.
The trade dispute
between the two parties is that of unfair termination of employment.
The applicant is seeking the relief of re-instatement.
After the
matter was served on the respondent, they filed in a response and in
that response, the respondent did deny the matter.
They said that:-

(i) That the applicant was
indeed employed by them in the education department and had worked
for one and a half years and that his
services were terminated whilst
he was on probation and that the termination was in accordance with
the conditions of service for
Nkhoma Synod Christian Private Schools.

(ii) That the Synod has its own
hierarchy for dealing with matters concerning its employees in the
department, which allows departmental
workers to appeal to the next
level. Only after the higher levels have failed to resolve the
problems of departmental employees would
it be justified for the
employee to seek relief elsewhere.

(iii)
That in the case of Mr. Beseni he has not sought relief from the next
layer of the hierarchy which is the Office of the General
Secretary
of the Nkhoma Synod and the Moderator.

(iv) That Mr. Beseni should be
advised to lodge his complaint to the office of the General Secretary
of the Synod for consideration.

The matter was set
down for hearing for the 15^th of April 2002. The
respondent did not turn up for hearing. They however wrote a letter
dated the 9^th of April 2002 requesting the Court to refer
Mr. Beseni to the General Secretary so that the General Secretary
should hear his complaint.
The Court tried to reason with Mr. Beseni
if he was willing to go and discuss the matter with the General
Secretary. Unfortunately,
Mr. Beseni declined to do that. He said
that as per the conditions of service that are in place, there is no
grievance mechanism
in place thus he has no duty to be bound by what
the respondent is talking about. He produced the conditions of
service and indeed
there is nowhere in them where there is reference
to what the respondent are talking about. The Court thus found that
there is indeed
the office of the Secretary General, but that should
not be interpreted to mean that an aggrieved employee should first
appeal to
him/her before taking up the matter with the Court.
Moreover, the applicant’s employment was terminated and he has all
the right
to seek redress in a Court of law. The Court therefore
ordered that the matter should proceed because the respondent were
fully aware
that the Court had called them for hearing. It should be
stressed here that when the Court has set down a matter for hearing,
the
parties to the case have to obey the call. Courts are not
supposed to enter into correspondence with the parties. If that is
done,
matters shall not be finalized because there shall be a feast
of correspondence. In this matter, we gave all the necessary notice
to the respondent. If they were serious minded, they should have sent
their representative to Court. The request should have been
made in
the presence of Mr. Beseni. But since Mr. Beseni is unwilling to
follow what the respondent is thinking about and since that
this is
not even in the conditions of services, the Court found no
justification in adjourning the case.

The Applicant told
the Court that he was employed as a bursar on the 4^th of
January 1999. He was based at Dedza C.C.A.P. Private Primary School.
It is his evidence that when the schools opened on the 4^th
of January 2000, the Headmaster of the school started to receive
school fees on his own. The Applicant said that he sensed dangers
with this system. It is his evidence that he as the bursar was the
one who had the mandate to receive the fees. He was more worried
because he was not in a position to ascertain as to how much fees the
Headmaster was receiving and whether what the Headmaster was
handing
over to him tallied with what he had received. As a result of this,
the applicant together with the Deputy Headmaster approached
the
Headmaster and pleaded with him not to receive the fees. But the
Headmaster continued receiving the fees. On the 7^th of
January 2000, the applicant went to the Education Secretary of the
Nkhoma Synod and reported the matter. He was however advised
by the
Education Secretary that he saw nothing wrong with that as long as
the Headmaster was giving him the fees and he was issuing
out the
receipts. The applicant said the he still expressed the worry as to
whether the Headmaster was bringing to him the correct
amounts which
he had received. To his surprise, the Education Secretary threatened
him and told him to go back to the school and
follow the
instructions.

On the 27^th
and 28^th January 2000, the Education Secretary convened
two meetings. One meeting was for the Headmasters and the other was
for the bursars.
The objective of their meeting was to explain to
them how they should carry out their duties as per the circular of
the 28^th of January 2000, which the secretary had sent to
all the six schools in the Synod. After the meeting all the bursars
said that they
would wait for the circular to come to their school
and work according to that circular since it had not reached their
respective
schools. Unfortunately for him, although the Headmaster
got the circular on the 10^th of February 2000, he did not
bring it to the attention of the applicant until the 2^nd
of March 2000 when he was literally invited by the secretary to his
office and told to release the circular. Thus on the 6^th
of March 2000 the applicant started implementing the contents of the
circular. On the 10^th of March 2000, the applicant said
that he went to the head office to collect receipts. On the same 10^th
of March 2000, the Headmaster announced that school tests or
examinations for end of the term would start on the 13^th
of March 2000. He deliberately announced the commencement of the
tests in the applicant’s absence so that the applicant has no
opportunity to make suggestions as to what would happen to those
pupils who had not paid school fees. On the 16^th of March
2000, the applicant said that he went back to the Education Secretary
and informed him about the large number of fees defaulters
who were
however sitting for the examinations. The following day, the
Education Secretary sent an accountant to audit the school.
A report
called "Outstanding Fees" was compiled which is App
Ex No.2. On the 22^nd of March 2000, the Headmaster and the
applicant were called to explain as to how the outstanding fees was
to be recovered as the
term was closing on the 24^th of
March 2000. The arrangement made was that during the school holiday
between March and April 2000, the outstanding fees had to
be
collected. It was further agreed that those pupils who reported with
balances of previous term would be returned to their homes.

It is the evidence
of the applicant that before the second term opened, the Headmaster
was demoted to the position of mere teacher
at the same school. This
was done after several parents had confronted him during the holiday
about the school fees which they had
personally handed over to him,
which he could not account for. During the holiday, the applicant
said that he receive over K100,000
out of the K137,575:00 outstanding
fees.

On the 3^rd
of May 2000 the same accountant came to make a snap audit. By then
the applicant had K133,000 in the school safe of which K12,000
was
for the creditors who were still paying the outstanding school fees.
A separate report was compiled by the applicant, which was
delivered
to the Education Secretary by Mr. Dzimwe the Cashier from the
Education Secretary. Thus the snap audit report by the accountant
did
mislead the head office because the auditor did not bother to
physically count the cash of K133,000 which was in the safe. He
only
made a snap audit. The snap audit report is App Ex 3.

By the 13^th
of May 2000, it was found that the remaining balance was K26,000 but
the rest had been misused by the Headmaster. The applicant said
that
he compiled another report on the update and again sent it to the
Education Secretary through Mr. Dzimwe. On the 19^th of May
2000, the Education Secretary personally assured him that he had
received the report and that everything was not okay; and
that by the
22^nd of May 2000, he should be at the school since he had
been temporarily suspended through the snap audit report letter App
Ex 3. But
the Headmaster was called to the office of the Education
Secretary and asked as to how he would refund the fees that he had
misused
since he had admitted. It was also the applicant’s evidence
that the Headmaster was the one who kept the records of the students
who were admitted at the school plus those who were day scholars and
those who were boarders; and that this is clear on point no.
5 of the
guideline notes.

The applicant
therefore says that his services were unfairly terminated. The
respondent did not follow the procedure. He was not given
a chance to
be properly heard. He was a victim of circumstances as it is the
Headmaster who had misused the money. His termination
was based on
the Headmaster’s wrongs. He also said that it is not true that he
was on probation as the conditions of service stipulate
that
probation was up to 12 months and he had exceeded that period. The
respondent had even increased his salary. That could not
be possible
if he was on probation.

This Court in
looking at cases of unfair dismissal or unfair termination, has
always referred to what the Employment Act has provided
for. Section
57 (1) of the Employment Act provides:-

"The employment of an
employee shall not be terminated by an employer unless there is a
valid reason for such termination connected
with the capacity or
conduct of the employee or based on the operational requirements of
the undertaking."

This provision in
labour or industrial jurisprudence is what has been referred to as
substantial justice. Then Section 57 (2) provides:-

"The employment of an
employee shall not be terminated for reasons connected with his
capacity or conduct before the employee
is provided an opportunity to
defend himself against the allegations made, unless the employer
cannot reasonably be expected to provide
the opportunity."

This provision is
what has now and again been referred to as procedural justice. This
Court has on times without numbers said that
a combination of
substantial justice and procedural justice would always amount to
fair dismissal. If one of them is missing or if
both are missing, the
result is always catastrophic because it always leads to unfair
dismissal. This has been vindicated in Section
58 which provides:-

"A dismissal is unfair if
it is not in conformity with Section 57 or is a constructive
dismissal pursuant to Section 60."

It is also important
to point it out on the onset that in all cases of dismissals, the
duty is on the employer to provide reasons
for the dismissal. This is
by virtue of Section 61 which provides:-

"(1) In any claim or
complaint arising out of a dismissal of an employee, it shall be for
the employer to provide the reason
for dismissal and if the employer
fails to do so, there shall be a conclusive presumption that the
dismissal was unfair.

(2) In addition to proving that
an employee was dismissed for reasons stated in Section 57 (1), an
employer shall be required to show
that in all circumstances of the
case he acted with justice and equity in dismissing the employee."

Having stated the
law as it stands, I should now analyse the evidence that came from
the applicant and marry with the applicable legal
provisions. I have
however not lost sight of the fact that the respondent did not argue
their case in Court. This was due to their
own choice.

A look at the
evidence clearly shows that what led to the termination of the
applicant’s employment is the issue about school fees.
The Court
listened to the evidence from the applicant. It is clear from the
evidence, which went unchallenged that the Headmaster
of the school
is to blame for this fees scam. He was receiving school fees and
pocketed a big proportion of it. The applicant who
was junior to this
Headmaster tried all he could in order to salvage the situation. He
personally approached the Headmaster in the
presence of the Deputy
Headmaster. This did not help. He personally went to the Education
Secretary to report about it. But he was
sent back and advised to
leave things as they are. Then there was a circular issued on how the
fees had to be collected. Amazingly,
but not strange with the conduct
of this Headmaster, he hid the circular for some weeks. He only
released it upon orders from the
Education Secretary. One cannot
therefore say that the applicant herein neglected his duties or
performed below expectation. You
do not expect a bursar to perform
efficiently and diligently where the Headmaster is so tricky and
fraudulent like in this present
situation. The Court looked at the
letter of termination, which is App Ex no.5. This letter was
referring to a letter of suspension,
which is App Ex no.3. The letter
App Ex no.5 further referred to a report by the Accountant which
report revealed that the record
keeping by the applicant was not
satisfactory. Then the letter finally summed up that in view of all
this, the Headmaster had ended
up misusing the fees.

It is thus clear
that the Headmaster indeed misused the fees. The respondent however
shift the blame on the applicant’s poor record
keeping being the
cause for the Head teacher to embezzle the funds. This Court found
the reasons given to be baseless and tantamount
to inequitable
approach on the part of the respondent. The applicant had tried all
his best to save the situation but he was not
at all helped. How
could the respondent expect proper record keeping from the applicant
where there was total confusion. Instead
of one person receiving
fees, there were two. Instead of the bursar having proper guidelines
on how to manage the fees and keep it
properly the Headmaster had
hidden the circular from him.

I found that the
Headmaster is the one who is to blame in this case. He had a hidden
agenda on the whole financial transaction no
wonder he embezzled the
fees. The whole system had become so chaotic and it is not because of
the applicant but the Headmaster and
Management itself. After the
applicant had made his report to Management, they should have acted
decisively. I therefore found that
there is no valid reason here for
the respondent to have terminated the employment of the bursar.

This Court also
looked at the procedure followed before the employment of the
employee was terminated. In the first place, it was
acknowledged by
the respondent after discussions that there was outstanding fees.
Through a letter App Ex no.2, both the Headmaster
and the bursar (now
applicant) were told to collect the outstanding fees before the end
of the term. In between, the applicant did
his best to collect part
of the outstanding fees apart from the one the Headmaster misused.
This was between March and April 2000.
Then on 3^rd May
2000, a snap audit was done by the Accountant. This revealed a
shortage and the Headmaster (now a new Headmaster) since the first
one was demoted was mandated to receive the fees. The applicant was
immediately put on suspension. The applicant was in the meantime
asked to make an explanation of the shortfall. Then through App Ex
no.5, the applicant’s services were terminated. The applicant
told
the Court that he was not at all heard. All he got was the letter of
termination. Indeed, there does not exist any evidence
that there was
a hearing of the applicant before the final letter of termination was
written. From the contents of this letter, it
is clear that the
respondent based its decision on the reports by the accountant. The
reports were not even made available to the
applicant so that he
should have defended himself. In actual fact, the applicant said that
the Accountant made his report without
physically counting the cash
that was in the applicant’s possession. This Court found that the
procedure the respondent followed
was very crude and unfair. They
should have leveled charges against the applicant and afford him a
chance to defend himself. This
was not done and it amounts to unfair
procedure. There was thus no procedural fairness in the matter.

The Court has
further found that the respondent were not truthful in their response
when they said that the applicant was on probation.
The applicant had
worked for one and half years (18 months). The applicant tendered in
Court conditions of service, which are App
Ex no.4. Clause 2
provides:-

"Probation period: The
employee will on first appointment be engaged on probation. The
period of probation shall be twelve months.
At the end of the
probation period the employee will either be confirmed, dismissed or
three given an additional probational period
of three months after
which no additional period will be given."

In this case, the
applicant had served the first twelve months on probation. He should
either have been confirmed or given another
three months. That took
him to 15 months. After the 15 months, it could either have been
confirmation or if he had problems, termination.
Thus having passed
the 15 months period, it should be taken that all was well with him.
This case and its resultant decision took
place when the applicant
was in the eighteenth month. At that time, he was out of the
probation period. If after the first 12 months
the applicant had any
problems with his performance, certainly the respondent would have
informed him and extend for 3 months. I
find this reason baseless and
just a face-saver.

This Court found
that the respondent acted with double standards. The Headmaster who
actually is the culprit in this case has gone
away with it. He is
still working and has been transferred to Ntchisi. The poor bursar
who did not misuse any fees has lost his job.

All in all, the
Court found that the dismissal was wholly unfair. I do order
therefore that the applicant be re-instated to his original
job of
bursar from the date the termination was effected.

MADE this
---------day of April 2002 at Lilongwe.

M.C.C. mkandawire

HON. CHAIRMAN