IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE
REGISTRY

MATTER NO. 25
OF 2001

BETWEEN:

FRASCO L.
MAJAWA………………………...…………..APPLICANT

-and-

AUCTION HOLDINGS
LIMITED……………………RESPONDENT

CORAM: HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant – Present
(Unrepresented)

Respondent –
Present (Represented by Counsel Likongwe)

George Chapalapata –
Official Interpreter

J U D G M E N T

Matters in
Issue : Unfair dismissal.

BACKGROUND

On the 25^th
of September 2001, the Applicant filed this case against the
Respondent on a trade dispute of unfair dismissal. The Applicant was
praying for a relief that he should be given his severance allowance
for all the 13 years that he had worked for the Respondent.
In
response, the Respondent said that the Applicant was fairly
dismissed.

SURVEY OF EVIDENCE

The Applicant Frasco
Majawa got employed by the Respondent on the 24^th of March
1988. He was initially employed as a seasonal mailing clerk. He rose
through the ranks up to the position of Senior Computer
Operator. It
is the evidence of the Applicant that as one of the conditions of
employment, as an employee of Auction Holdings (the
Respondent) he
was not supposed to grow tobacco, sell any tobacco to the Respondent
or deal in any tobacco transactions on someone’s
behalf. The
Applicant said that this was a serious condition of employment and
memos and circulars were issued out by Management
to remind all the
employees on the seriousness of this condition.

The Applicant told
the Court that his late father from whom he got all the names as
junior Majawa Mbewe was a tobacco grower. He had
an estate in Salima.
When he died in 1994, his father left all the names on him. Thus the
tobacco licence was also handed over to
him since they had similar
names. The family members unanimously agreed that the Applicant who
had similar names like those of the
deceased should continue using
the licence. The Applicant said that he even opened a bank account in
similar names like those on
his later father’s licence and he did
all this in order to assist members of his family sell tobacco since
he himself was not allowed
by the Respondents. The Applicant told the
Court that in the year 2000, a Mr. Dawa who was the Manager at
Tobacco Investment Limited
approached him if he could use his licence
number to sell his tobacco. It is important to note here that Tobacco
Investment Limited
was a wholly owned subsidiary of the Respondents
and that employees of this subsidiary were also barred from selling
their tobacco
at the Auction Holdings. The Applicant said that he
accepted to sell Mr. Dawa’s tobacco through his number and all the
money was
credited to his account. He later on withdrew the money and
handed over to Mr. Dawa.

In May 2001, the
Applicant said that he was amazed when the Floor Manage called him to
his office. Whilst at that office, the Floor
Manager accused him of
this and that in relation to the tobacco, which he sold on behalf of
Mr. Dawa. The floor Manager confronted
him to explain what he knew of
this tobacco. He explained as he has done here. Later on the matter
was referred to the police where
he was personally taken in the
company of the Company lawyer Mr. Likongwe. After interrogations the
police released him but later
on Mr. Dawa was locked up. It was then
that the Applicant heard that the tobacco was allegedly stolen at the
Tobacco Investment Limited.
The Applicant said that after he was
cleared by the police, he went back to his place of work. He worked
for 30 days only and on
the 1^st of June 2001, he got a
letter of dismissal. The Applicant said that he was thus very amazed
as to why he was not given the chance
to be heard before they
dismissed him. He told the Court that there is a disciplinary
committee at the Respondent’s place but he
never appeared before
this committee. He thus said that he was unfairly dismissed. The
Applicant said that he was discriminated against
because most people
appear before this committee and he further said that he was not even
aware of the charge he was facing.

The Applicant’s
brother came as witness number two. He confirmed about the Applicant
taking over his later father’s licence because
they had similar
names. He also told the Court that before Mr. Dawa’s tobacco was
sold through this number, the Applicant approached
them for
authority, which they gave.

The Respondent
brought one witness who is Mr. Patrick Chitokwe. He is the Assistant
Floors Manager at Auction Holdings. He told the
Court that there was
a time during this material time when they discovered that a lot of
tobacco bales went missing at the Tobacco
Investment Limited where
the tobacco had gone for rehandling. An enquiry was instituted and it
later on transpired that the Manager
of Tobacco Investment Limited
(TIL) Mr. Dawa had sold a lot of tobacco through the licence of the
Applicant. It would appear that
there was a syndicate between TIL and
Auction Holding Limited the witness said. Thus the stolen tobacco at
TIL was sold through the
Applicant’s number (licence) and the money
was transacted through the Applicant’s account.

After these
findings, the matter was reported to the Group General Manager of
Auction Holding Limited Mr. Msonthi. The Group General
Manager then
appointed the Floor Manager and the Assistant Floors Manager
(himself) to constitute a disciplinary committee to hear
the
Applicant. Thus on the 14^th of May 2001, the Applicant was
summoned to meet the two in the office. Whilst at the office, the
Applicant was asked to give his
side of the story in relation to the
stolen tobacco that was sold through his number. The Applicant gave
an explanation in great
details. He told them that he indeed sold the
tobacco for Mr. Dawa through the number in issue. After selling the
tobacco, the money
went through his account. The Applicant told them
that the number is not his but does belong to the family since their
later father
the original owner of the licence had died. The witness
said that a statement was written by the Applicant, which he tendered
as
Res Ex No. 5. After having heard the Applicant, the team submitted
its report to Management and Management thereafter took an action.

THE LAW

In a case of
termination of services, this Court is now governed by Section 57 of
the Employment Act. This Section has put in place
two fundamental
points that are supposed to be fulfilled before any termination
related to misconduct, incapacity or operation grounds
could be said
to be fair or justifiable. These are:-

(i) Valid reasons for the alleged
termination.

(ii) The employee has to be given
chance to be heard before any decision is taken.

Thus the Court in
looking at the case at hand will be addressing its mind towards these
requirements.

ANALYSIS

From the totality of
the evidence, it is clear that all employees of Auction Holdings and
those from Tobacco Investment Limited were
not allowed to sell
tobacco to Auction Holdings. This condition was spelt out in black
and white in the conditions of service. Clause
21 provides as
follows:-

"It is a condition of
service that under no circumstances may an employee of Auction
Holdings Limited or Agriculture Trading
Company Limited or Tobacco
Investment Limited be a registered grower or seller tobacco on the
Auction Floor."

Apart from this
condition, the Respondents sent reminders through circulars about
this prohibition not to sell tobacco. The Applicant
argued that the
licence was for the entire family only that it was with him because
he took over all the names of his deceased parents.

The Court had
problems to accept that. The Applicant had assumed ownership of this
licence and he even opened a bank account to which
he was the sole
signatory. He should not today hide under the guise of family
ownership. It was thus very clear that the Applicant
was the assumed
owner.

Certainly, this
policy that prohibits employees to sell or be registered growers of
tobacco should have some background to it and
it is not the province
of this Court to canvas on the merits or demerits of the policy. The
evidence on record is very clear that
the Applicant was aware of this
policy. It is again clear from the evidence that after the
Applicant’s father had died, he assumed
ownership of the licence to
grow in fragrant violation of the strict rules at his place of work
not to sell tobacco to the Auction
Floors. The Applicant not only
sold tobacco to Auction Floors but he sold tobacco on behalf of
another employee of a subsidiary of
Auction Holdings who was also
barred from transacting in tobacco. The Respondents therefore had
valid reasons to call that a misconduct.

I would now turn to
the issue of the procedure that the Respondents followed before
terminating the employment of the applicant. The
principal
requirement of procedural fairness in the event of alleged misconduct
is that the employee should be given a fair hearing.
Where there is a
disciplinary procedure laid down at the place of work, this procedure
should be substantially followed, failing
to do so will amount to
unfair labour practice. It is thus generally agreed that the employee
should be given reasonable notice of
the charge against him/her and
should receive adequate opportunity to answer it and bring
extenuating circumstances to the employer’s
notice.

In this case, there
is a heavy dispute about the issue whether what transpired in office
of the Floors Manager was a hearing as envisaged
in Section 57 )2) of
the Employment Act. The Applicant said that he never appeared before
a disciplinary committee as has been the
case with friends of his.

The Applicant
further said that he was not charged with any misconduct so that he
should have been given time to properly respond.
All he was
confronted with in the office of the Floors Manager were abuses,
castigations and threats. He said that he did not consider
this as a
hearing but interrogation. On the other hand, the Respondent’s
witness said that this was a hearing and that the two
of them
constituted a disciplinary committee as mandated by the Group General
Manager a Mr. Msonthi.

In order to properly
resolve this issue, the Court has looked at the Conditions of Service
tendered in Court by the Respondents. Clause
20 (5) (d) supported by
appendix M deal with the issue of discipline and it says:-

"An employee may be
required to appear before a disciplinary committee to answer any
charges that may be levelled against him.
Where an employee has been
summoned for a disciplinary hearing, he will be given at least 3 days
written notice advising the date
of the hearing and the charges to be
answered.

The employee will have the
right to bring his own witness and to be represented by a Company
employee if he so wishes.

(e) All proceedings in a
disciplinary matter will be reduced to writing and maintained on
record files."

The provisions of
this clause speak for themselves. The Respondents have an excellent
procedure laid won in black and white on procedural
fairness before
effecting termination. The billion question is did they follow this
procedure? I do not think so. If indeed the Floors
Manager and his
Assistant were a disciplinary committee, we could have seen the
outcome of that hearing reduced in writing. What
the Court has found
from the foregoing analysis is that there was no fair hearing of the
Applicant in this matter. He was not levelled
with any charge of
misconduct. He was not given any notice to prepare for any hearing.
In actual fact, there was no hearing. What
transpired in the office
of the Floors Manager was a mere interview which later on culminated
into an interrogation.

This Court has
stressed in several of its decisions on procedural fairness that it
should be an effective hearing and not just an
academic one. The
Court cannot hold here that there was a hearing as envisaged by
Section 57 (2) of the Employment Act.

FINDING

Although the
Respondents had a valid reason to hold the Applicant responsible for
misconduct, the Respondents on the other hand did
not use a
procedurally fair approach. Thus the dismissal of the Applicant
cannot be described to be fair. It was an unfair dismissal.
The
appropriate remedy here is that of compensation as laid down in
Section 63 (4) (5) of the Employment Act. The Applicant had worked
for more than 10 years but less than 15 years. He therefore falls in
the blanket of compensation, which should not be less than two
weeks
pay for each year of service. I therefore order that he be paid three
weeks pay for each year of service. This compensation
to be paid
immediately.

DELIVERED this
----------- day of May 2002 at Lilongwe Industrial Relations Court.

M.C.C. Mkandawire

HON. CHAIRMAN