IN THE
INDUSTRIAL RELATIONS COURT
OF MALAWI

MATTER NO. 111
OF 2000

BETWEEN

NATHAN O.
BANDA………………………………..…APPLICANT

-and-

ADMARC
…………………………………………….RESPONDENT

CORAM: 

HON M.C.C.
MKANDAWIRE

CHAIRMAN

Mr. I. Kambuku,
Employers’ panelist

Mr. B. Manda,
Employees panelist

Mr. C. Ngwira of
counsel for the applicant

Mr. A. Limbe of
counsel for the respondent

Mr. Lora, official
interpreter

J U D G M E N T

HON M.C.C.
MKANDAWIRE

The applicant in
this case is Mr. Nathan Banda. The respondent is Agricultural
Development and Marketing Corporation (ADMARC). The
applicant has
brought this matter against the Respondent alleging that the
Respondent has terminated his employment without furnishing
him with
details of the audit report. The Applicant would therefore like this
court to order for his re-instatement or payment of
all his dues.

The Respondent
entered a defence in this matter. In their response, the Respondent
has said that the Applicants’ services were terminated
following
failure by the Applicant to account for stocks valued at K131,420:00
or thereabouts for which he gave an unsatisfactory
and unconvincing
explanation. In the alternative, the Respondent say that the
Applicant’s services were terminated due to his gross
negligence
which resulted in the Respondent’s corporation sustaining huge
losses. We heard three witnesses in this case. The Applicant
was the
only witness for his side whilst as the respondent invited two
witnesses. We shall first look at the Applicant’s story.

The Applicant got
employed by the respondent in 1992. The Applicant was initially
employed as an accounts officer and he worked in
various ADMARC
depots in Mzuzu and Karonga. In the year 1999, he was appointed as
Unit marked officer, and was posted to Ng’onga
in the district of
Rumphi. As in charge of the Ng’onga ADMARC Unit, the Applicant told
the court that he was also responsible for
buying tobacco. It is the
evidence of the Applicant that the year 1999 was the first time for
him to purchase tobacco. Before the
tobacco season started, the
respondent organized a workshop for all the Unit buyers so that they
get sensitized on the requirements
of buying this so called green
gold. That year, the workshop took place at Mzimba and he was exposed
to the type of tobacco and the
grades that the respondent expected
the buyers to purchase. It is his evidence that at Ng’onga he had a
shed which was only 8 meters
long. Half of it was occupied with maize
and a good part of the enclosure was occupied with pesticides. He
therefore said that he
had very little space where to keep the
tobacco. As the buying season went on, the Applicant said that he
bought a lot of tobacco.
But all this tobacco was packed in this very
narrow room.

He then asked for a
balling machine from the respondent. But there was no help coming
from them. He referred the matter to his immediate
supervisor at
Rumphi office who later on advised him to hire the machine. He hired
one which was costing K50.00 per bale. He only
managed to bale 25
bales thereafter, the respondent complained that the machine was too
expensive. Thus the balling exercise was
suspended. As a result of
the delay, the tobacco which he had purchased in very good condition
became burnt whilst on the grounds.
He explained that the condition
of the tobacco deteriorated as a result of the nature of space
available. He said that tobacco left
on grounds for months as his
tobacco had stayed could not maintain its good condition. He said
that there was no space in the shed
hence lack of fresh air hence the
tobacco generating moisture on itself and getting burnt.

The Applicant
further told the court that the Respondent only came to his rescue in
August, 1999 some four months after the tobacco
had been on the
grounds. As such, the tobacco which was underneath all got burnt
hence the poor quality and grading. The applicant
said that he
personally went to deliver the tobacco which in total was around 39
metric tonnes.

It is the
Applicant’s evidence that after having delivered all the tobacco to
Mzuzu at the respondent’s grading shed, he was later
on summoned to
Mzuzu. When he went there, he was invited to explain something about
his tobacco. The Respondent had established a
commission of enquiry
and he said that he explained to the Commission what he has told this
court. He was later on advised not to
repeat this. On the 15^th
of March, 2000, as he was busy at his station, that is when he
received a letter of termination through a delegation sent by the
Respondent. He tendered the letter in court as App Ex No 1. This
letter said that the Applicant had failed to account for stocks
valued at K131,420.00 and as such, the services were being terminated
immediately. The Respondent in the same letter advised the
Applicant
that he would get:

a)
three months salary
in lieu of notice amounting to K16,170.00

b)
three months housing allowance amounting to K10,500.00

c)
gratuity for your
services amounting to K48,510

d)
refund of your
accumulated credit from the
pension fund.

This letter finally
said that these benefits will be paid minus the outstanding shortage
of K131,142.00. The Applicant told this court
that he was not at al
informed about the exact tonnage which the stock of tobacco the
respondent had alleged he had failed to account
for. He tried to make
enquiries with the regional office in Mzuzu. But they told him that
the headquarters in Blantyre were in a
better position to explain.
The Applicant however tendered in court the document from Mzuzu
grading centre. It is App Ex No 3. This
document summarizes what
tobacco the Applicant had brought and the classifications after
grading.

The first
Respondent’s witness was Mr. Chinseu. Mr. Chinseu is the grading
Manager for the Respondent based at the grading centre
in the city of
Mzuzu. He told this court that he received 39437 metric tonnes of
tobacco from the Applicant. When this tobacco arrived
at the grading
centre, the Applicant had classified it as follows:-

i. 29854 kgs grade 1

ii. 3984 kgs grade 2

iii. 5599 kgs grade 3

But when this tobacco was re-graded
at the centre it was actually

found that the
tobacco was in the following categories:-

i. 5235 kgs grade 1

ii. 7196 kgs grade 2

iii. 21601 kgs grade 3

There was also
3.3283 tonnes which could not even be sold. The witness said that
later on a Commission of enquiry followed up the
matter. As per this
witness he said that this tobacco was bad and had black leaf. He said
this could only arise as a result of the
Applicant purchasing wet
tobacco or deliberately spreading water on the tobacco. He said this
is sometimes done in order to increase
weight. The witness said that
he confronted the Applicant about the state of his tobacco. The
Applicant said that he had problems
at his station like lack of
balling machine and space. He advised him that this was management
problem. It is his evidence that in
relation to the nesting of the
tobacco; the Applicant may be thought that the responsibility will be
transferred to the grading centre.
Fortunately, things were
discovered.

The second witness
is Mr. Julious Kawalewale. He is the Deputy Audit and Evaluation
Manager based at the Respondent’s head office
in Limbe. This
witness told the court that he was a member of the commission of
enquiry which visited Mzuzu. According to the witness,
the Applicant
had told the commission that cause of black leaf was as a result of
delay in collecting the tobacco from his unit.
The commission he
stated found that the Applicant’s tobacco must have been bought
when it was still wet or if it was bought in
good condition, then the
Applicant must have deliberately over-conditioned it. As per the
evidence of this witness who has vast experience
in tobacco, he said
that if tobacco is bought whilst in good condition, it can stay even
in squeezed condition without changing its
condition.

Mr. Kawalewale went
on to say that in this case, the Respondent has lost a lot of money.
This loss has come about because the Applicant
had indicated as if he
had purchased a lot of tobacco in grade I whereby pausing as if he
had paid prices for grade 1 yet what he
bought was trash and he
should have paid the prices for lesser grades. As such, the
Respondent put on the market tobacco of very
low grade yet it had
parted with a lot of cash for higher grades. As per the conditions of
service which he tendered as Res Ex No
2, the Applicant had violated
clause 16(b) (c) which are acts of misconduct, hence the termination
of his services.

Before we assess the
evidence on record, we would like to thank both counsel for their
wonderful submissions which they made in this
case. These submissions
have been of very big help to this court.

The pertinent issues
that this court would like to focus on are the following:

(i) whether or not the Applicant
incurred a stock shortage.

(ii) whether or not the
termination was justified.

We have pondered
over the evidence from both sides. We note that after the Applicant
had delivered his tobacco at the grading centre,
the grading Manager
confronted him about the condition of his tobacco. A close analysis
of the summary tendered in court by the grading
manager clearly shows
that the Applicant’s tobacco was contrary to what he had indicated
on delivery. The number of kilograms put
by him as being of grade 1
is in total contradiction with what the grading master had found. The
disparity is so wide that one can
not believe the Applicant that the
cause of it all was overstaying on the grounds. We were of the view
that apart from the sporadic
problems of space, balling machine and
transport, the Applicant should indeed have purchased bad tobacco. We
also observed on the
onset that the Applicant was aware that he had
space problem. Why did he keep on pilling the tobacco in that same
small space. These
are elements of an employee who does not want to
take care of the employer’s property. Certainly, the Applicant
should not have
continued loading the tobacco in a shed which had no
space. In other words, he should have stopped buying more tobacco. He
displayed
an element of carelessness or negligence. As a result of
all these things, the Respondent ended up receiving tobacco which was
bad.
This badness can be said to be two fold. Firstly, the buying of
poor tobacco. Secondly the overzealous attitude of the Applicant
by
buying too much tobacco whilst there is no room.

We therefore agreed
with the Respondent witness number two when he said that this led to
a stock shortage. We are aware that the Applicant
had delivered the
right number of kilogram at 39.4 tonnes. But the weight on its own is
not complete. We have also looked at the
quality. In the tobacco
industry, we were told that its not only weight that matters. It is
both weight and quality of the leaf.
One can have good weight of a
leaf yet the leaf is adultered with water and hence of very poor
quality. All these culminated into
stock shortage.

We would therefore
move to the next issue of termination of services. Termination of
services in employment relationship is looked
at from two facades.
These facades are:-

(a) substantive justice

(b) Procedural justice

We are aware that
this matter arose in April, 2000. By that time, the provisions of our
Employment Act, 2000 were not yet operational
because that Act was
operational from September, 2000. Moreover this Employment Act was
assented to by the President on the 14^th of May, 2000
after the matter herein had already arisen. In situations such as
these, we have always resulted to the provisions of
section 211 (1)
of the constitution which mandates these courts to have recourse to
International Law. This court has now and again
in the absence of any
relevant National Law on this issue referred to the International
Labour Standards of the International Labour
Organization. Convention
number 158 concerning Termination of Employment at the Initiative of
the Employer provides as follows:-

"The
employment of a worker shall not be terminated

unless there is a
valid reason for such termination connected

with the capacity
or conduct of the worker……………."

In this case before
us, we have looked at the reason why the Respondent had decided to
terminate the services of the Applicant. We
find that the Respondent
had valid reasons.

In relation to
procedural fairness, we have now and again referred to the provisions
of section 43 of the Constitution which says:

Every person shall
have the right to

(a) Lawful and procedurally fair
administrative action,

which is justifiable in relation
to reasons given where

his or her rights freedoms,
legitimate expectation or

interests are affected or
threatened ;"

Article 7 of
convention 158 of the ILO also provides:

"The
employment of a worker shall not be

terminated for reasons related to
the

workers conduct or performance
before he

is provided an opportunity to
defend himself

against the allegations made,
unless the

employer cannot reasonably be
expected to

provide this opportunity."

There is abundant
evidence in this case that the Respondent constituted a Commission of
enquiry. The Applicant was invited to Mzuzu.
He was asked to explain
about the state of his tobacco. He made his representations and later
on the Respondent came to a conclusion
that this case merited a
termination. We take it that this was a fair hearing of the Applicant
before any administrative action was
meted out. We are therefore
satisfied that the Applicant’s termination was justifiable.

We have however been
at pains to appreciated how the Respondent came to the conclusion
that the stock shortage was worth K131,420.00.
The Audit report has
not been well explained. The two witness representing the Respondent
were not even in a position to shed light
on that. Witness number two
who is the Deputy Audit and Evaluation Manager was himself at pains
to answer questions from the Applicant
as to how they came to that
amount. He could not even explain as to what rate in pricing they had
used in order to come to the this
amount. This we found to have been
very strange. Much as we do accept that there was a stock shortage,
the specific weight and value
in pricing should have been well
articulated by the audit team.

The court has also
observed that the Respondent would like to put the full blame of
negligence on the applicant. But our findings
are that to some
extent, the Respondent too should share the blame. It is very clear
and quite amazing that the Respondent did not
provide the necessary
equipment at the right time. Tobacco purchased in April was hipped on
grounds up to the month of August. We
find that such neglect by the
Respondent did compound things. Whilst as the Applicant must have
purchased some bad tobacco, but the
good tobacco due to overstaying
on grounds certainly got affected in quality. Thus we order that the
Respondent should be liable
to some extent for the laxity shown in
this case. The Respondent did not come to this court with clear
hands. We order that the Applicant’s
liability is 80% whilst that
of the Respondent is 20%. Thus from the total figure which has to be
ascertained, the percentage herein
have to be reflected. The
difference should be refunded to the Applicant with immediate effect.

DELIVERED
this……………………..day
of ………………2001 at Mzuzu Industrial Relations Court

Signed
……………………………………….

M.C.C. Mkandawire

Signed……………………………………….

I. Kambuku

Signed ………………………………………

B. Manda