IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

MATTER NO. IRC
14 OF 2000

BETWEEN:

LILIAN
LUHANGA………………………………..APPLICANT

-and-

GESTETNER
LIMITED………………….……….RESPONDENT

CORAM: 

HIS HONOUR, M.C.C.
MKANDAWIRE CHAIRMAN

Mr Nindi –
employers representative

Mr B. Manda –
employees representative

Applicant –
present/unrepresented

Respondent –
present/unrepresented

Mr W.Kumwenda –
Official Interpreter

J U D G M E N T

The applicant in this
case is Mrs Lilian Luhanga and the respondent is Gestetner Limited.
The applicant has sued the respondent alleging
that the respondent
wrongfully and unlawfully dismissed her. In her applicants’
statement, she is asking this Court to reinstate
her or to be awarded
damages. The applicant sued the respondent on the 28^th of
December, 1999 through the applicant’s statement of claim which was
officially acknowledged on the 18^th of January, 2000. The
respondent did respond through the respondent’s statement of claim
dated the 27^th of January, 2000. In their response, the
respondents averred that the applicant was dismissed for abscondment,
dishonest, refusal
to obey legitimate orders coupled by the
circumstances surrounding the commission of gross misconduct on 6^th
October 1999.

On the 18^th
of February, 2000 both parties appeared before the Registrar of the
Industrial Relations Court at the High Court Mzuzu for a pre-hearing
conference. The purpose of this pre-hearing conference is for the
parties to give a birds eye view and where possible, to narrow
down
the arguments. In some instances, these pre-hearing conferences have
acted as platforms for mediation and conciliation. This
particular
case proved to have been a difficult one because after the
pre-hearing conference, there were still so many issues unresolved
and the case was therefore set down for full hearing on the 2^nd
of June 2000. On this appointed day, the court heard both sides of
the case and reserved its judgment for today.

It is therefore
pertinent at this point in time to refer to the evidence as it came.
But before we do that, let us point it at the
outset that this is a
civil case. In all civil cases, the burden of proof is on he/she who
alleges to establish his/her case on a
balance of probability. In
cases where the applicant alleges wrongful or unlawful dismissal, the
burden is on the respondent to prove
to the court that the dismissal
was not wrongful or unlawful.

We should now delve
into the facts of the case. The applicant Lilian Luhanga was employed
by the respondent as a copy typist in 1981.
At that time, she was
based at the respondent’s offices in Blantyre. After a few months,
she was transferred to the Lilongwe office.
In 1992, the applicant
was transferred to Mzuzu where she was working as stores lady in the
stores department. She worked in the
stores department up to late
1994 then handed over to Mr Botomani. In 1995, she was promoted as an
administrator and the stores department
came back to her. Between
1995 and 1999, she was combining both administration and stores.

We have deliberately
narrated the career progression of the applicant in order to show
that management had confidence in her; or else,
she would not have
excelled up to a supervisory position.

The applicant told
this Court that on the 5^th of November 1999 she issued a
cash sale to Sugic Agencies who had come to purchase a ream of
photocopying paper. It is her evidence
that she forgot to put a
carbon paper and as such the duplicate copy did not reflect anything.
The cash sale was for K550:00. When
she discovered the mistake late
in the afternoon, she wrote another cash sale for K2.40 whilst
awaiting to raise another stock cash
sale. All this she said happened
on a Friday. The following Monday she said that she forgot to rectify
the mistake. On the 14^th of October, 1999, the applicant
said that she went to Zimbabwe to see her sick father. She came back
on the 27^th of October. Two days later, her father died
and she had to go back to Zimbabwe. She came back on the 11^th
of November, 1999. On the 16^th of November, 1999 her boss
Mr Munthali asked her about the cash sale and requested her to
explain in writing which she did through
a letter which is PexI. It
is pertinent to reproduce the contents of this letter which read as
follows:-

"Dear
Sir,

I wrote a cash sale for Sugic
Agencies but I forgot to put carbon papers. At the end of the day I
was supposed to have raised a fresh
cash sale of which I forgot
because I wanted to get the original for cancellation for a fresh one
but I kept the money. I am sorry
it was not intentional.

Yours
faithfully

Luhanga"

On the 19^th
of November, 1999 the Personnel Manager, from the Blantyre Office
came to Mzuzu on the same issue. The applicant said that she
explained
to him as she had done to Mr Munthali.

On the 1^st
of December, 1999, there was a stock taking at the office and after
the stock taking, her boss handed her a letter from Head Office
in
which she was being asked to resign.

The contents of this
letter are to the effect that the applicant had not put a carbon copy
when she sold a ream of paper to Sugic
Agencies at K550:00. Later on,
the applicant had issued a fresh receipt of K2.40 which was wrong
information. The net result was
that this amounted to gross
misconduct which Management was not happy with and that such a
misconduct warranted an instant dismissal.
But it was the opinion of
Management that the applicant be asked to resign with immediate
effect. This letter is tendered as Pex2.
The applicant told the Court
that the following day when she reported at the office, she got a
telephone call from the Personnel
Manager in Blantyre who informed
her to hand-over everything at the office. The hand-over notes are
tendered as Pex3 dated the 2^nd of December, 1999.

After handing over
everything the applicant said that she went to bid farewell her boss
Mr Munthali who later on told her that the
General Manager was very
upset and that this would be treated as a police case. After that
discussion, she went home.

On the 6^th
of December, 1999, the applicant said that she phoned the Financial
Controller requesting him if her case could be reviewed by their
office. The Financial Controller informed her to put it in writing
which she did on the 8^th
of December, 1999 through a letter tendered as Pex4. In this letter,
the applicant was mitigating with the respondent that she had
been in
the service with them for 18 years and that prior to this incident,
she had not received any warning in any way whatsoever.
The applicant
further mitigated that to error is human and she was of the view that
she had received a very severe punishment taking
into account all the
circumstances of the case. The applicant finally requested the
respondent to revisit their stand on the matter.
This letter was
addressed to the General Manager but with copies to the Financial
Controller, Personnel Manager and the Operations
Manager.

On the 10^th
of December, 1999, Mr Munthali wrote a Memo to the General Manager
that the applicant was not reporting for work. The Memo was entitled
"Abscondment from Work". This Memo is Pex5. The contents of
the Memo read as follows:

"Mrs
Lilian Luhanga has not been reporting for duties since 6^th
of December, 1999 and I have no report about her abscondment".

On the 17^th
of December, 1999, the applicant got a letter of dismissal which is
Pex6. This letter is dated the 14^th of December, 1999. It
would appear that the applicant used to date letters whenever she got
letters from her employers. Thus the
Memo was received by her on 16^th
December and the letter of dismissal was received on the 17^th
of December. We shall be commenting on these letters later on in our
judgment.

The respondents were
represented by Mr Felix Munthali who is the Operations Manager based
in Mzuzu. Mr Munthali told the Court that
he has been with Gestetner
since 1975 but has known the applicant since 1981 when he employed
her. Mr Munthali further told this
Court that he worked with the
applicant in Lilongwe since 1987 and he is the one who facilitated
her transfer to Mzuzu following
her husband. Mr Munthali further said
that he is the one who also facilitated that she becomes
administrator in Mzuzu. In 1998, he
joined her in Mzuzu as Operations
Manager. It is his evidence that through out his stay with her in
Mzuzu there have been lots of
rumours about the applicant but he does
not work on these rumours.

Mr Munthali told the
Court that on the 4^th of October, 1999, Miss Mwahimba a
shop attendant showed her a ream of paper which was hidden in the
drawer where the applicant used
to sit. At that time, the applicant
was at the bank. Later on, the ream was removed and sold to Sugic
Agencies. The stock sheets
and all the bank documents balanced but
upon proper scrutiny, it was found that the applicant could disguise
figures in such a way
that it was difficult to discover. She could
sell reams and issue a proper original. But on the duplicate, she
could record as if
a customer had come to photocopy things. Miss
Mwahimba informed him that this had been happening on several
occasions. Mr Munthali
said that when the applicant came from
Zimbabwe, she was confronted to produce proper receipts for the paper
sold to Sugic Agencies.
Later on she confessed that she had made a
mistake although the cash was there. The matter was referred to
Management in Blantyre
and later on Management took steps as
described by the applicant. The applicant was asked to resign after
that, she was requested
to hand-over. The applicant later on came to
bid farewell and Mr Munthali said that this could have been a police
case. The following
week she did not report for duties and Mr
Munthali said that he reported the matter to Management. The
following week, Management
dismissed her.

Miss Mwahimba was
witness number two for the respondent. She joined Gestetner at Mzuzu
office in 1998 and has worked with the applicant
from 1998 to 1999.
This witness said a lot of damaging things against the applicant. She
narrated the alleged fraud that the applicant
was doing at this
office. It would appear that this lady knew a lot of alleged
malpractices about the applicant within the short
time she was with
her. The unfortunate part about her testimony is that Management did
not take any concrete steps to verify those
things either through a
thorough audit or anything close to an audit. As a Court therefore,
we have completely put such issues out
of our minds because they
might just make our minds be poisoned with bias. If the respondents
had found any scintilla of truth in
these very strong allegations
against the applicant, they should have confronted her and call for
experts to audit the office. The
respondents are a very reputable
institution and have the capacity to hire the best auditors we have
on the land, but one wonders
why they did not take concrete steps on
these allegations. It is however this Mwahimba who tipped Mr Munthali
about the last straw
that broke the camel’s back. Her version is as
good as that of Mr Munthali thus we shall not re-narrate it.

The starting point
here is the issue about the K550:00 which sparked the whole case.

After having
listened to both sides, we were of the view that the applicant indeed
failed to give a plausible explanation about this
duplicate. If she
had forgotten to put the carbon, why did she write the figure K2.40
instead of K550:00? We had no problems here
but to believe that
indeed, there was some malpractice here which was tantamount to
dishonesty.

Having concluded
that, the respondent found it imperative to take steps against the
applicant. The decision which Management made
was to ask the
applicant to resign. We have looked at the surrounding circumstances
of this case. Whilst we do appreciate that the
applicant had
disappointed her employers by not being honest with them, we however
found that the decision made by the employers
was not a fair one. The
decision to request the applicant to resign was quite improportional
to the wrong which she had displayed.
The applicant had not embezzled
the K550:00 which was the cause of all this. Before this incident,
the applicant was a very honest
person. Since she joined the
respondent in 1981, she had never been warned either orally or in
written form. She had a very clean
record and she had been trusted by
her employer hence the promotions which she got up to the rank of
supervisor or administrator.
We therefore found it very difficult to
appreciate the punitive measure which the respondents had meted out
on the applicant. We
asked ourselves one question that is was there
no any other action which they could have taken on the applicant?
Certainly, we failed
to find any fairness in the action taken. The
applicant had worked for the respondent for 18 years with no bad
record at all. Shortly
before this incident, Mr Munthali who came as
a witness who was her direct supervisor had just caused an evaluation
or assessment
of her. He gave an opinion that she was very reliable
and honest. Then came this incident where the same honest applicant
was totally
treated as if she was an extremely dishonest person. We
fail to come to terms with this.

After the request
that the applicant made to have her case reviewed, the respondent did
not answer her. All that time the applicant
was awaiting from them
that may be they would reconsider her position. Instead of looking at
her application for review, the immediate
supervisor wrote to the
General Manager that the applicant had absconded from work since the
6^th of December, 1999. There is something very funny which
we observed. The applicant was told to immediately hand-over the
office and
immediately resign. The applicant got the letter informing
her to resign on the 1^st of December, 1999. On the 2^nd
of December, 1999 she handed over the office. It is on record that
the applicant came to the office to bid farewell to Mr Munthali.
There is nothing on record which suggests that Mr Munthali had given
the applicant instructions that she keeps on reporting at the
office.
Moreover, that could have been contrary to common-sense for her to be
reporting to an office where she had been told to hand-over
and
resign with immediate effect. What could she have been doing there?
We really wondered. One should also appreciate that as a
human being
she might as well have been psychologically affected and also felt
humiliated. It was therefore unrealistic that Mr Munthali
quickly
wrote the General Manager that the applicant had absconded. We would
even go further here by saying that the respondent did
not take any
steps to find out what was happening with the applicant. Mr Munthali
wanted to sound as if he had sent someone to the
applicant’s house
to warn her about her absence at work but upon cross-examination Mr
Munthali could not tell this Court as to
who went to the house of the
applicant and when.

This Court found
that the respondent acted very hastily without taking into account
other factors. This is an Industrial Relations
Court which believes
in fairness in all actions that parties take towards one another. We
feel that the respondent herein acted out
of proportion. Although the
applicant had displayed some form of dishonesty which was the first
of its kind and of very little degree,
the decision to ask the
applicant to resign can not be described to have been a fair one. The
next step which the respondent took
to dismiss the applicant was even
worse than the first option because it was totally unwarranted. We
have looked at the relief being
sought by the applicant, we feel that
the best relief to her is to be paid her benefits on early retirement
which is the most fair
thing for both parties. We order that the
Registrar should work out the figures with the parties. We feel that
the respondent went
a bridge too far. In all labour or industrial
disputes, fairness has to be done. It should not only be done but it
should manifestly
be seen to be done. When we talk of fairness, we
mean a wholistic approach to it. It should not only be procedural
fairness but should
also be substantive fairness.

There are several
reasons why we have found that the decision to dismiss the applicant
was totally unfair and therefore wrongful.
Firstly, even if one
concedes that the applicant was dishonest not to have a proper
duplicate receipt of K550:00, this wrong can
certainly not overshadow
the good character displayed by the applicant for the past 18 years
or so. The K550:00 was not even stolen.
The applicant upon being
asked accounted for it and therefore the respondent had lost nothing.
The respondent should also have considered
in the first place that
here was a person who had dedicated all her services to them for 18
years. All her future investment and
expectation was in the
respondent. The applicant had diligently worked for the respondent
without any warning whatsoever. Could the
issue of K550:00 really
have eclipsed all the good things she had done for them? We do not
think so.

Coming to their
letter of dismissal, we found that the respondent were blowing both
hot and cold. They stated in there that the applicant
did not obey
legitimate orders and that she was absent from work without leave,
permission or reasonable cause. In the first place,
we failed to
appreciate what the respondent meant by the words "not obey
legitimate orders". Which orders did she not obey. If they
were referring to their letter asking her to resign, we thought that
the Financial Controller
had given her permission to appeal to higher
authorities for review of her case which she did. But they did not
come back to her.
Was this fair on their part? We do not think so.
Coming to the issue of absence from work, we found that the
respondent are contradicting
themselves.

Having asked her to
resign immediately and hand over everything which she did, we do not
think that any reasonable person could have
been lingering at the
same office. Moreover, we observed that the respondent’s
representative in Mzuzu who is the Operations Manager
did not act
fairly on this issue. He did not make a proper follow up with her at
her house. We are very certain that had he done
that and specifically
informed her to be at work of course doing nothing since she had
handed over everything, the applicant could
have come. When we looked
at the rate at which letters were written by Management to the
applicant, we observed that someone some
where was in such a big
hurry to get her out of the system.

In dealing with
human rights, one has to be extremely patient. We therefore found
that the decision to dismiss the applicant was both
unfair and
wrongful. It can not be entertained by this Court. After having
looked at the relief the applicant sought and reconciling
it with the
Conditions of Service of the respondent, we order that instead of
re-instating her, the applicant should be given early
retirement so
that she does not throw her 18 years in the deep seas. Certainly the
issue of dishonesty here involving K550:00 only
which is not lost
does not even warrant a call for resignation. That was very punitive;
and industrial justice does not accept that.

DELIVERED
in Open Court this 30^th
day of June, 2000 at Mzuzu.

His Honour, M.C.C.
Mkandawire

Chairman

Mr Nindi

Employer’s
Representative

Mr B. Manda 

Employee’s
Representative