IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 5 OF 2004

BETWEEN

MNELEMBA.……………….…………………………
……..…………...APPLICANT

-and-

BARLOWORLD PLASCOM LTD……..……………...
……………..RESPONDENT

CORAM: R ZIBELU
BANDA (MS.); CHAIRPERSON

J E CHILENGA;
EMPLOYERS’ PANELIST

PADAMBO; EMPLOYEES’
PANELIST

Chizuma; Ag. Deputy
Chairperson

Ngwira; Of Counsel for the
Respondent

Chitsakamire; Of Counsel
for the Applicant

Ngalauka; Official
Interpreter

JUDGMENT

1. Dismissal-
   Reason-Gross Misconduct-releasing goods to customer without vetting
   creditworthiness-Taking on private work

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

Facts

The applicant was employed
by the respondent as Senior Sales Representative for the respondent.
The respondents trade in paint.
The applicant was entitled to give
credit limit of up MK150 000-00 to a customer. In the event leading
to the dismissal, the applicant
gave credit facility of MK600 000-00
to a customer well above the authorized limit without any authority.
The applicant was further
accused of conducting private business with
the respondent’s business whereby the applicant received MK20 000-0
from the client
and did not remit it to the respondent although at
the time the client owed the respondent a lot of money. The applicant
was invited
to a hearing which took the form of a meeting to be asked
about these incidents. The applicant was specifically asked to
explain
why he offered credit facility to a new customer without
vetting his creditworthiness. He was also asked to explain the MK20
000-00
which he received from the respondent’s client but did not
credit it towards the client’s account.

The
applicant explained his side. His explanation did not convince the
respondent. They decided to dismissed him from employment.
The
applicant was aggrieved by this decision hence his claim to this
court. The respondent on the other hand averred that the dismissal

was fair.

The
applicant also claimed 13^th cheque for one year and
performance incentives. The applicant proved that every year the
respondent awarded its employees 13^th cheque. At the time
of dismissal the applicant had earned the 13^th cheque for
the year. The court agreed with the applicant. The applicant did not
prove his claim for performance incentive. He adduced
a document
exhibit ‘AP2’ to show that between January and February the sales
overshot the budgeted target. The applicant however
claimed
incentives for the whole year without any evidence that he had made
sales above agreed targets. If anything the applicant
is entitled to
his individual percentage as incentive for the months of January and
February 2003.

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 carrying on business in competition with the employer is an
unfair labour practice which is condemned in all
civilized labour
markets. Misconduct involving carrying out functions with negligence
is also an act of misconduct. The court found
that the applicant was
negligent when he offered credit facilities to a new client without
verifying his creditworthiness. The
court also found that the
applicant committed an act of misconduct when he carried on private
business with the respondent’s
client. The reasons for dismissal
were therefore valid.

Procedure

The tried to show that he
was not given a fair hearing. He stated that he was not aware of the
allegations against him until he
was asked to explain some anomalies
in the course of a meeting. He considered that this was a
disciplinary hearing. The court had
a contrary view. 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 al 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)],
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 heard that on 11 November the applicant was
informed in writing about the allegations enunciated above,

specifically about the account of Mr. Katsanga the client in
question. He was provided with documents for reference which alleged

that the applicant had received some money from the client. The
applicant was further advised to prepare for a meeting on 13 November

at 3.00 PM to discuss what he knew about the allegations. He was also
informed that the debt Collector assigned on the Katsanga
case would
be in attendance at the said meeting.

The
meeting did indeed take place and the Debt Collector was in
attendance. The applicant was asked to explain what he knew about
the
account and the allegations that he had received some money from the
client.

The court
failed to appreciate how the applicant could claim that this was not
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.

Order

As indicated earlier the
applicant proved that he was entitled to 13^th cheque for
2003. the respondent is ordered to pay the applicant what was due to
him as 13^th cheque before his dismissal.

The
applicant also proved that the company made some profits over and
above the target in January and February 2003. The respondent
is
ordered to pay the applicant his percentage for performance incentive
for January and February 2003. these orders are effective

immediately.

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 15^th day of November 2007 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Joel
Evalitso Chilenga

EMPLOYERS’ PANELIST

Maxwell
NR Padambo

EMPLOYEES’ PANELIST