IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 21 OF 2006

BETWEEN

MAIDEN…….……………….…………………………
……..…………...APPLICANT

-and-

STANDARD BANK LTD………………..……………...
……………..RESPONDENT

CORAM: R ZIBELU
BANDA (MS.); CHAIRPERSON

A MALIJANI;
EMPLOYERS’ PANELIST

NC KAJOMBO; EMPLOYEES’
PANELIST

Bandawe; of Counsel for
the Respondent

Majamanda; of Counsel for
the Applicant

Kanyongolo; Law Intern for
the Respondent

Gowa; Official
Interpreter

JUDGMENT

1. Dismissal-
   Reason-Misconduct-Dishonesty-Making payment without cover-Concealing
   payment from management

2. 
   Procedure-Right to be
   heard-Disciplinary hearing- Fair

3. 
   Appeal-Appeal to cure
   defect-Defect to relate to the conduct of the hearing of the first
   instance-Right to appear on appeal depends
   on whether there is a
   defect to be cured

Facts

The applicant was dismissed
from the respondent’s employment. The reason for the dismissal was
that the applicant had committed
acts of misconduct. These acts
involved dishonesty where it was alleged that on the material day, 5
August 2005, the applicant
knowingly and deliberately sent SWIFT
Messages for payment of his examination fees to the Institute of
Bankers, South Africa without
cover and that he tried as much as
possible to conceal his actions from management. The applicant was
invited to a disciplinary
hearing to answer the charges. He explained
his side of the story and defended himself. The respondent dismissed
the applicant
after the hearing in accordance with Part 6 of the
Bank’s Disciplinary and Grievance Procedures. The applicant was not
satisfied
with this decision and lodged this action. He challenged
the reason for dismissal and the procedure.

The Law

Section 57(1) of the
Employment Act provides that before dismissal a person must be
provided with a valid reason. While section
57(2) of the Act provides
that where the reason is connected with a person’s conduct, he must
be given an opportunity to be heard.

It is held
that in all cases of dismissal, an employee must be given a valid
reason and an opportunity to state his case and defend
himself; if
one or both of these requirements are not complied with the dismissal
is unfair. See; Beseni v Education Department of Nkhoma Synod
[Matter Number IRC 320 of 2002 (unreported)] IRC.

Reason

Misconduct
involving dishonesty is an unfair labour practice which is condemned
in all civilized labour markets. It has been held
in this court that
misconduct involving dishonesty is a serious act of indiscipline
entitling an employer to terminate a contract
of employment, see for
instance, Mnenemba v Barloworld Plascom Ltd [Matter Number IRC
5 of 2004 (unreported)] IRC .

In the
instant case the court was convinced with the respondent’s
justification for the termination. The applicant acted dishonestly
by
transferring forex for his benefit without following bank procedures.
It was heard and proved that the applicant did not have
funds in his
account to facilitate the transfer. In essence the applicant ‘stole’
money from the bank to pay for his examination
fees. He concluded the
transaction without informing or seeking management’s authority as
required. One of the requirements was
that the applicant could have
applied for a loan facility from the bank as his employer to cover
the transaction. However the applicant
did not bother to follow any
of that.

His
explanation was lame and not justified. For instance the applicant
told court that he needed the fees urgently and that was
why he
omitted some procedures and that he could not apply for a loan
because he already had several other loans with the bank.
It was
observed that that the applicant was the one sitting for examinations
and that it was his responsibility to make preparations
for payment
of fees in good time. It was also observed that the transaction was
concluded several days before the due date, meaning
that the
applicant would have followed procedures if he had wanted and still
meet the deadline. In terms of having too many loans,
that was the
applicant’s problem and it could never justify taking money from an
employer without authority.

Procedure

The applicant tried to show
that he was not given a fair hearing. He stated that he was not heard
on appeal. The court found that
there was no defect at the first
hearing. An employee may be invited to be heard on appeal where he
shows that the hearing at the
first instance was flawed or had
defects that needed to be cured. In this matter the court found that
there was none to necessitate
an oral hearing on appeal. The facts
were the same and there was no material substance subject of an oral
appeal hearing.

The
standard in labour and administrative matters is that where an
employer has cause to discipline an employee and puts forward
to that
employee an allegation and asks him to respond, that fulfills the
right to be heard. It does not have to take judicial
or quasi
judicial form to be a disciplinary hearing. In Cornelios &
others v Howden Africa Ltd t/a M&B Pumps [1998] 19 ILJ 921,
the Labour Court in South Africa held that:

It
does not matter whether each of the procedural requirements has been
meticulously observed. What is required is for all relevant
facts to
be looked at in the aggregate to determine whether the procedure
adopted was fair. One must guard against the rigid
imposition of
judicial style proceedings in inappropriate situations.

In a local
case by this court; Kumwenda v Paralegal Advisory Service and
Youth Watch Society [Matter Number IRC 447/2003 (unreported)],
Hon. Mkandawire as he then was held that:

Section
57(2) demands that the employer should afford an employee the
opportunity to defend himself or herself. What this entails

therefore is that there should be specific charges or a specific
charge against the employee. The employee should then be given

adequate time to respond to the charges. The hearing shall depend on
the prevailing styles at the workplace. Some institutions
have a
disciplinary committee at their place of work. Some institutions
will appoint specific officers to conduct the hearing.
Some
institutions have a Board of trustees or Directors. But what is
important is that there should be a hearing whereby the
employee is
leveled with allegations. Some hearings will be orally conducted
with the employee having a chance even to cross-examine
potential
witnesses, whilst some hearings will take the form of the employee
responding to written allegations also in writing.

In the
instant case, the court failed to appreciate how the applicant could
claim that he was not given a fair hearing. It was found
in fact that
the applicant was given a fair hearing.

Finding

The court finds that the
reasons for dismissal were valid. The applicant was accorded an
opportunity to state his case before dismissal.
The respondent
complied with the requirements of the law. This action is therefore
dismissed.

Any party aggrieved by
this decision has the right of appeal to the High Court within 30
days of this decision. Appeal lies only
on matters of law and
jurisdiction and not facts: Section 65 (2) of the Labour Relations
Act.

Made
this 28^th day of May 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Aimani
Malijani

EMPLOYERS’ PANELIST

Nick
Chifundo Kajombo

EMPLOYEES’ PANELIST