IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 16 OF 2006

BETWEEN

CHILONGO………………...
……………………………………………. APPLICANT

-and-

CHILEMBWE
LODGE………………………………………………..
RESPONDENT

CORAM: R.
ZIBELU BANDA (Ms); CHAIRPERSON

Malijani,
A; Employers’ Panellist

Kajombo
NC; Employees’ Panellist

Lipenga;
for the Respondent

Applicant; present

Gowa;
Official Interpreter

JUDGMENT

1. 
   Dismissal-Reason-Misconduct-Failure
   to account

2. 
   Deductions-Lawful
   deductions from employee-An employer entitled to deduct money from
   an employee’s wages as restitution-For
   property damaged by the
   employee

3. 
   Deductions- When making
   such decision employer must act reasonably and in any event a court
   must consider the penalty that the
   employer imposes on an employee
   

Facts

The
applicant was on the material day working
as a Receptionist. It was alleged that in that evening a client
booked a room from the applicant.
He was offered such room after
making payment of MK3 200-00. The next morning the applicant was
confronted by management alleging
that he had received money but did
not account for it. The transaction was not recorded in the register.
The applicant denied that
he had sold a room the previous night. The
client however confirmed booking and paying for a room but that he
did not get a receipt
for the transaction. The explanation according
to the respondent was that the client was in a hurry to proceed and
had booked and
paid for the room for his driver.

The
applicant was invited to a hearing on charge of selling
a room for MK3 200-00 without issuing a receipt and for failure to
account for the money. The applicant denied the charge.
The
respondent was not convinced. They dismissed the applicant. They also
refused to pay him his wages for days worked because
they believed
they had a right of lien over the wages as restitution for the MK3
200-00. The applicant challenged the dismissal
and the withholding of
wages.

The
Law

The Employment Act provides
that an employer is entitled to dismiss summarily an employee guilty
of serious misconduct inconsistent
with the fulfillment of the
expressed or implied conditions of his contract of employment such
that it would be unreasonable to
require the employer to continue the
employment relationship, see section 59. It has been held in this
court that dishonesty is
an act of misconduct warranting summary
dismissal; see generally Ibrahim v Suncrest Creameries Ltd
[Matter Number IRC 73 of 2003 (unreported)]IRC.

In
the instant case the court was of the view that the applicant acted
dishonestly. He received money for a room but failed to record
the
transaction and to account the money to management. It was only
through an inquiry by the client that the matter was disclosed.
There
was no doubt that the applicant had received the money. The evidence
of the client was overwhelming. The respondent had valid
reason to
dismiss the applicant.

Procedure

The
applicant was invited to a hearing. He was asked to explain the
transaction as reported by the client. The applicant denied
the
allegation. However his explanation was not
satisfactory. The court found that the applicant had been given a
fair opportunity to explain his side and defend
himself.

Finding

The
termination was fair. The applicant was
dismissed for a valid reason. He was given an opportunity to be
heard. The action is dismissed
in its entirety.

Deductions

The
applicant had his wages forfeited to
reimburse the respondent for money received and not accounted for by
the applicant. Section 56(4) and (5) of the Employment Act
provide that an employer may deduct a sum of money from an employee
as restitution for
property damaged by that employee. It provides
further that in taking this decision the employer must take into
consideration among
others the duties of the employee and the penalty
imposed on the employee.

In the
instant case the court heard that the applicant’s duties were that
of serving customers. He would take money and give services
to
clients. The court heard that it was the responsibility of the
applicant to ensure that clients paid for services which he,
the
applicant provided. In this particular case the applicant served a
client who paid for the services. However the applicant
did not
record the transaction and did not account for the money. The
respondent withheld money from the applicant as restitution.

Section
56(5) provides that the employer must act reasonably and in any event
a court must consider the penalty that the employer
imposes on an
employee. The court found that this deduction was unjustified. The
respondent dismissed the applicant. This was harsh
punishment. Over
and above this penalty the employer imposed second penalty that of
withholding the applicant’s wages. The court
found that this was
unfair as it constituted double punishment. The court orders that the
respondent pay the applicant wages for
the days worked. This order is
with immediate effect.

Any
party aggrieved by this decision is at liberty to appeal to the High
Court in accordance with section 65 of the Labour Relations
Act.

Made
this 26^th
day of May 2008 at BLANTYRE

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Nick
Chifundo Kajombo

EMPLOYEES’ PANELIST