Charles Kazembe v Auction Holdings (Misc. Matter 13 of 2001) [2002] MWIRC 35 (11 July 2002);
CHARLES KAZEMBE…………………….……………….APPLICANT
Payment for all the days worked up to the 1st of November, 1999; One month’s salary in lieu of notice. The Respondents however deducted the cost of the lost items from these payments.
HON. M.C.C. MKANDAWIRE, CHAIRMAN
Applicant – Present
Matters in Issue : Claim for wrongful dismissal (unfair termination)
Introduction
This matter is brought by Charles Kazembe the Applicant, against Auction Holdings
Limited the Respondents. In his Statement of Claim, the Applicant says that he was wrongfully dismissed therefore he would like this
Court to order that the Respondent should pay him notice of pay, leave pay and that they should also furnish him with reasons for
the dismissal. The Respondents have denied the allegations made by the Applicant.
Survey of Evidence
The Applicant was employed by the Respondents as a Machine Operator on 15th November 1995. He later got elevated to the rank of garden boy which saw him work at different residential houses for senior officers
of the Respondent. When the matter herein arose, the Applicant was working at the house of Mr. Kammalere. On the 10th of September 1999, the Respondents had an official party at their head office at Kanengo in Lilongwe. This appears to be an annual
event. The Applicant went to attend this party and reported back for work on the 11th of September. When the Applicant reported for work; he found that all his utensils for work were missing from the small storeroom
which was being used at his place of work. Also missing was a horse pipe plus his uniform. The Applicant reported the matter to his
boss Mr. Kammalere who he says assured him that he would report at his place of work. At a later stage, the Applicant was confronted
by his bosses about the missing items. Together with the night watchman on duty, they were asked to give statements. The Applicant’s
statement is tendered in evidence. The watchman gave two statements which were conflicting. In the first statement, he said that
when he reported for work, he did not find the items in the storeroom. In the second statement, the watchman said that he found the
items in the storeroom but during night hours there came armed robbers who stole the items.
The two were brought before a disciplinary hearing and later on they were dismissed.
In relation to the Applicant, he was charged with the offence of failing to account for company property. After the termination of
the Applicant’s employment which was through a letter, the Respondents paid him the following:-
when this constitutional provision was already in force. The old Employment Act which was repealed in September 2000 did not contain
any statutory rights in relation to what the employer would do before the termination of employment. The Employment Act 2000 does
however contain a specific provision in Section 57 as to what would amount to fair or unfair dismissal. The Court shall thus heavily
rely on Section 31 of the Constitution because it would be wrong to apply the provisions of Section 57 retrospectively.
only came back to work the following day. In his evidence in-chief, the Applicant introduced a new subject matter that because the
owner of the house Mr. Kammalere was in the habit of moulding bricks, he was now and again left with no option but to leave the horse
pipe as he did. The Applicant further said that on this particular day, he was informed by the wife of Mr. Kammalere to leave the
horse pipe as he did. The Court found it very difficult to believe the Applicant on this point. The Applicant was given two opportunities
by the Respondents. Firstly, he wrote his own statement as to what had happened. He never mentioned about the issue of bricks and
about Mrs. Kammalere. Then there came a detailed hearing at the boardroom where the Applicant was formally charged. He never mentioned
about the bricks and Mr. Kammalere. It is really difficult to swallow his story today. The Court takes it that the Applicant just
left the horse pipe unattended to and off he dashed for the party.
When the things were lost, the Applicant did not bother to make a report to his office. He of course says that he reported direct
to Mr. Kammalere. But that was not enough. He had not received those items from Mr. Kammalere. He was not at all employed by Mr.
Kammalere. His masters were the Respondents. His conduct was indeed in issue and any reasonable employer should have raised eyebrows.
The Court has looked at the procedure that was followed by the Respondents before they terminated his employment. The Applicant was
given adequate opportunity to be heard. He first gave a written statement. Then there was the formal hearing where he and the watchman
were charged. They both defended their side. Later on a decision was taken. This Court finds that the Respondents complied with what
would be defined to as fair labour practice. They had valid reasons to charge the Applicant which they did. They afforded the Applicant
with an opportunity to be heard. As regards the deductions made, they were indeed entitled to effect those in order to make good
the loss incurred due to the negligence of the Applicant. As regards reasons for the termination, the Applicant was made aware of
the reasons. The Court finds that this was fair termination. The Applicant’s case therefore fails.
DELIVERED this 12th day of July 2002 at Lilongwe.