IN THE INDUSTRIAL RELATIONS COURT OF
MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 193 OF 2002

BETWEEN

ZOLOWERE ……………………………………………………………
APPLICANT

-and-

TOTAL (MW) LIMITED …………………………………………...
RESPONDENT

CORAM:       R.
Zibelu Banda, Deputy Chairperson

                       
Kalua for Respondent

                       
Applicant

                       
Ngalauka – Court Clerk

JUDGMENT

Procedure for dismissal- Rules of natural justice-Flouting of
company regulations-Severance allowance.

FACTS

The applicant Leticia Zolowere was
employed by the respondent Total (Mw) Limited as Filling Station
Supervisor on 4^th
March 1998. On 16th May 2002 her services were
terminated on ground that she failed to report shortage of money to
her superiors. There were also allegations of
allowing staff under
her supervision to roll the shortage for some time, irregularities in
remittance of sales summaries; improper
usage of top cards; and under
declaration of metre readings. These short falls led to cumulative
shortage of about K40,000.00 belonging
to the company. The applicant
was not satisfied with the reasons for dismissal and she filed this
action claiming compensation for
unfair dismissal, long service pay,
medical bills and salary for May 2002. The respondent was heard and
he disputed the claim stating
that the applicant’s services were
fairly terminated and that upon such termination she was paid all her
dues including; one month
salary in lieu of notice, leave days and
pension.

ISSUES

The applicant averred that her services
were unfairly terminated because she did not actually misappropriate
the funds. It was one
of staff under her supervision that had
misappropriated the money and had promised to repay the company. She
did not dispute that
fact that she failed to report the loss when she
first heard about it. The allegation against her was that she had
failed to report
the shortage when she knew about it. The applicant
did not dispute the fact that she had been verbally warned before on
allegations
of similar nature. Further she did not dispute that there
were some irregularities within the filling station where she was
supervising,
for instance, that she did not remit summary of sales to
headquarters consistently as required and that her staff were under
declaring
metre readings and that at one time a fictitious top up
card had be used to cover up shortage. These were matters, which the
applicant
as supervisor was supposed to check. However the evidence
was that the applicant neglected such issues and therefore the
company
incurred loss to the tune of K40, 000.00.

When all these issues came to light the
applicant was confronted and asked to explain. Her explanation was
not satisfactory. Her employment
was consequently terminated. In
court she stated that she failed to report the loss because she was
afraid that this could lead to
her own account being deducted to
cover for the shortfall. Apparently such shortfalls had happened
before at the station and she
paid for the shortages.

Before termination, the applicant had
been warned and asked to improve in her performance. Until this time
the applicant had failed
to show much improvement. The respondent’s
business was adversely affected by the loss that was occasioned due
to the negligence.
The applicant was invited to explain her position.
She was informed of the allegations against her and she was given an
opportunity
to defend herself. It was after hearing the applicant
that her employment was terminated.

Upon termination she was paid her
notice pay for one month, she was paid salary for un taken leave days
and her pension benefits were
paid to her.

THE LAW.

After assessing the facts and issues
that arose in this case, the court finds that the respondent had
proved that there was a valid
reason for the dismissal in accordance
with section 57(1) of the Employment Act, which states that:

“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.”

The respondent had also complied with
rules of natural justice by giving the applicant notice of the
allegations leveled against her
and affording her the opportunity to
defend herself in accordance with section 57(2) of the Employment Act
which states that:

“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.”

FINDING

The court finds that termination of the
applicant’s employment was fair, it was done in accordance with the
law and the applicant’s
claim for compensation for unfair dismissal
is dismissed.

TERMINAL BENEFITS

The applicant claimed that she had not
been paid all her terminal benefits upon termination. In
cross-examination she admitted that
she received her salary for May,
her one-month notice pay, her salary for leave days and her pension.
She informed court that she
was not paid long service for the four
years that she had worked for the respondent.

SEVERANCE ALLOWANCE

The long service that the applicant was
claiming is severance allowance. The Employment Act section 35(1)
makes provision for severance
allowance. According to the schedule to
section 35 she could get severance allowance if the pension to which
she was entitled was
less than severance allowance. The applicant
received about K12,300.00 as pension benefit after tax. She had
worked for the respondent
for four years. Her salary at time of
termination was K5700.00. According to the formula provided in the
schedule to section 35 the
applicant would be entitled to the
equivalent of two weeks’ pay for each year of service. This comes
to K9800.00. Obviously this
is less than the pension benefit that she
received. The law states that the applicant can only get the greater
between severance
allowance and pension. (See Banda
and another v Blantyre Sports Club,
IRC Number 197 of 2001 (unreported)). In the instant case, it is the
pension, which she received because it was greater amount.
Therefore
the claim for long service is dismissed in its entirety.

MEDICAL BILLS.

The applicant claimed for medical
bills, which she incurred after being attended to by a private
medical practitioner. The respondent
refused to pay for the bill
because the applicant had received treatment from un authorized
hospital. The respondent company had
medical provision for its staff
at all levels. The applicant was entitled to receive medical
treatment at a designated hospital authorized
by the respondent. When
she got sick ion this occasion she deliberately without authority
from her employer received treatment from
un authorized hospital.
This was in violation of the scheme provided by the respondent. The
applicant has no claim for deliberately
violating company policy. The
claim for medical bills is thus dismissed.

Pronounced in Open Court
this ………. day of …………………………….at
LIMBE.

R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON