IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU REGISTRY

MATTER NO. 117
OF 2001

BETWEEN:

BERNARD RICHARD
NGOMA……………..…………..APPLICANT

and

DIMON (MALAWI)
LIMITED…………………..…….RESPONDENT

CORAM: 

HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant – Present

Respondent – Absent

Mrs. Namponya/Mrs
Kalirani – Official Interpreter

J U D G M E N T

Matters in
Issue: Unfair termination of employment

The Applicant Bernard
Richard Ngoma claims against the Respondent Dimon (Malawi) Limited
that the Respondent unfairly terminated his
employment. He is thus
seeking the relief of re-instatement.

The Respondent did
not turn up for hearing in spite of the notice of hearing having been
personally served on them. There were no
reasons for such a failure.
The Court therefore ordered that this matter be heard in their
absence.

The Applicant told
the Court that he was employed by the Respondent as a warehouse
superintendent on the 13^th of April 1999. He was based at
Kanengo in the City of Lilongwe. Three months after employment, he
was sent to Zimbabwe for a computer
course since the Respondent were
in the process of computerizing the warehouse department where he was
the in-charge. In the year
2000, his counterparts from Zimbabwe came
to Malawi to make a follow up on what the Respondent were putting in
place in view of the
computerisation process in the warehouse
department. These Zimbabwean delegates were two one female and the
other male. The female
visitor departed for Zimbabwe earlier leaving
the male one behind. A day before departure, the male visitor
followed him at his house
at Area 25 together with Mr. Mkandawire the
Leaf Manager so that he the Applicant should take him around the City
of Lilongwe. They
gallivanted from area 18 to Lilongwe Hotel where
they had fun, drinking and dancing. After midnight, they both left
for Las Vegas
in Area 47 where they continued the fun. At Las Vegas,
they found a disco playing. They were there up to around 4:00 a.m.
when they
decided to leave for the guesthouse where the visitor was
lodging. This guesthouse belongs to the Respondent. It is the
evidence
of the Applicant that he personally escorted the visitor to
the guesthouse so that he sees to it that he was safe. They went
there
by taxi and according to his memory, time was between 4:00
a.m.-5 a.m. After escorting him there, he proceeded to his house in
order
to change clothes and leave for work.

The Applicant said
that some days after this visitor had left, he was summoned by his
boss who informed him that the Managing Director
had received
information that he and the Zimbabwean visitor had spent a night at
the guesthouse in the company of some women. The
Applicant said that
he explained how they had travelled and that he merely went there to
escort his friend. He was not believed.
Then on a certain Friday
which was 7^th of September, his boss called him and
informed him that the directors would be meeting to decide on his
fate and that he would later
on communicate to him the outcome. His
boss got the keys for the office and as such, the Applicant said that
he had to be at home
waiting for the decision. He was however
surprised that during the weekend some of his workmates came
enquiring about the news which
was on the e-mail that he had
resigned. This really puzzled him because he had not resigned but was
awaiting the Director’s verdict.
The following week on a Tuesday,
his boss wrote a letter on his behalf that the he had resigned. The
Applicant said that he was extremely
amazed about this letter which
he tendered as App Ex.2. The Respondent also paid him what they
called his terminal dues. He tendered
the voucher in support of this
payment. It is App. Ex.3.

Form the letter
which his boss wrote, the Applicant said that he was surprised that
the boss could write a letter of resignation on
his behalf. He again
said that if he had resigned, the boss could have been accepting his
resignation. The Applicant therefore said
that the Respondent
terminated his employment without any justification.

Before I analyse the
facts (evidence) let me point it out on the onset that the Respondent
had entered a defence to the claim. In
their defence which was filed
with this Court, the Respondent said that they denied the claim made
by the Applicant. All they knew
was that the Applicant had indicated
his intention to resign to his Manager. The Respondent attached an
explanatory note to their
defence. They further disclosed in that
statement that the Applicant had spent a night at the company
guesthouse together with the
visitor from Zimbabwe and that the two
were in the company of girl friends. They further disclosed that upon
being confronted by
Management, the Applicant denied but a report
from the guesthouse attendant indicated the contrary. They attached a
report from the
attendant. It was therefore found necessary that he
should humbly resign in order to maintain his reputation and the
Applicant verbally
accepted. But he did not do that. The Respondent
therefore denies the claim that the Applicant is making.

This case looks very
classical. Classical in the sense that the Respondent did not
terminate the services of the Applicant in the
normal understanding
of termination. What the Respondent did was to write a letter of
resignation on behalf of the Applicant one
therefore wonders where it
happens here on planet earth that an employer has to write a
resignation letter on behalf of its employee.

From the totality of
the evidence which went unchallenged, cause for the disagreement
between the Applicant and Respondent was the
alleged sleeping at the
guesthouse with girl friends or woman friends of the Zimbabwean
visitor and the Applicant. The approach which
the Respondent however
took was rather crude. The Respondent seem to have been over
influenced by the report of the guesthouse keeper.
I have read that
report written in vernacular (Chichewa) attached to the Respondent’s
defence. The report is rather vague and invites
more questions than
answers. It was therefore not fair that the Respondent did not bring
the two parties together that is the Applicant
and the guesthouse
keeper for a direct confrontation. A note such as the one attached to
the Statement here which is not explanatory
cannot be a basis for
decision by Management. Taking the matter further from this point,
the Respondent did not approach the Applicant’s
matter with
maturity. He was casually asked about the guesthouse incident. That
certainly was not a disciplinary charge. An employer
is required to
bring up charges in very certain terms so that the employee should
knowe again said that if he had resigned, the boss
could have He 

what rules or
regulations he/she has breached.

There is evidence on
record from the Applicant which evidence is uncontroverted that he
the Applicant was told to surrender keys for
the office and wait for
Management’s decision whilst at home. Amazingly, the same
Respondent claims that the Applicant had absconded.
This, the Court
found to be comical. The Respondent certainly knows where the
Applicant was. He was at his home because they are
the ones who
advised him to wait there for their decision; which decision came but
in a very crude fashion. The Respondent resigned
on behalf of the
Applicant and the letter of resignation is addressed to "WHOM IT
MAY CONCERN". The conduct of the Respondent
is indeed very crude
and uncivilized. They deal with the rights of the Applicant as if he
was a mere member of a social club and
not employee.

This Court found
this case to be rather strange and in a class of its own. Strange in
the sense that the Applicant’s services were
not at all terminated
by the Respondent. All they did was that they had just resigned on
his behalf. In labour relations, there shall
never be a situation
whereby an employer shall resign on behalf of an employee. It can
only be an employee who may opt to resign.

The Court also found
that the Respondent made very huge fundamental breaches on the Labour
Rights of the Applicant. They did not precisely
charge him with any
offence or wrong that he had committed at his place of work. If going
to the guesthouse with women friends was
a breach of company rules
and warranting disciplinary action, why did they not proffer charges
against him? That is assuming the
Applicant indeed went there with
women which he heavily denies. At the end of the day, this Court
found that the Applicant should
be given his job back with immediate
effect. He never absconded, he never resigned but all that happened
was that the Respondent
who I do describe as employers who have no
respect for labour rights of the employee treated him as if he was a
mere member of a
social club and not an employee. This type of
approach cannot be accepted by this Court.

The Applicant would
like to have his job back. Indeed, he deserves his job. The Court
therefore orders that he be re-instated to his
job.

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

M.C.C. Mkandawire

HON. CHAIRMAN