Henderson v Paladin (Africa) Limited (IRC MATTER 26 of 2013) [2014] MWIRC 2 (9 September 2014)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 26 OF 2013 BETWEEN CHROSLEY HENDERSON... cssswsescsenccusscamaesaencxe APPLICANT PALADIN (AFRICA) LIMITED 3 tessscscvessaissaevesseee RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MISS CECILIA T. NYIRENDA, EMPLOYERS’ PANELISTS MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST MISS CHISOMO NYEMBA, RESPONDENT’S COUNSEL APPLICANTS / PRESENT / UNREPRESENTED MR. WASHINGTON MWENELUPEMBE, COURT CLERK JUDGEMENT 1. BACKGROUND The applicant commenced this action against the Respondent claiming compensation for alleged unfair dismissal. The applicant was employed by the Respondent as a Carpenter at Kayelekera Mine in Karonga. 2. APPLICANT'S EVIDENCE In his evidence in brief, the applicant stated that on 16" June, 2012, whilst undergoing a bag inspection at the main gate, he was found with the take away of pieces of chicken. As such the security officer/supervisor Mr Mwalirino told him to leave it with him and he went out to board a bus home. He said that after two weeks, on 26th June, 2012, he received a letter inviting him for a disciplinary hearing on 28' June, 2012 on the charge of unauthorized removal of the company property meaning the said take away which they alleged were eight pieces. At the hearing the panel showed him a picture/ photo of three pieces. He told the panel that he had sought permission from the kitchen supervisor, a Mr Axel fo take the said takeaway so that he could eat it around 16.00 hours as he was fasting on this day and since he knocked off at 15.00 hours, he had to take the food out of the camp. On 4th July, 2012, the Respondent summarily dismissed him. In cross - examination he stated that clause 11 of the Employment contract is to the effect that as employees, they were supposed jo familiarize themselves with the company’s policies and that for one to get things/items out of the premises he/she has to have a permit but to him, food like takeaway is not property requiring a permit. He went on to say that it was possible to get food out from the mess upon signing in the cafeteria book or getting authorized by the mess crew and that during the disciplinary hearing, he did not get hold of this cafeteria book where he signed as it was gd company book. He continued to say that the said book was found and he had signed in it but that he did not sign on the gate pass. The applicant further said that they were not given a book on Camp Rules as he was not staying at the Camp but Knew that beer consumption was prohibited at the camp through their passing by the gate. He concluded by saying that during the disciplinary hearing, he was accorded all his right'’s and he had no issues /qualms with the way the disciplinary hearing was conducted except to dispute that exhibit RK 1 is not the picture of the chicken take away he was talking about. 3. THE RESPONDENT’S EVIDENCE The Respondent's witness was Mr Ronald Kapira, the Company's Security Manager since August, 2017. He adopted and tendered his witness statement which was marked as R. K. This piece of evidence will not be reproduced here as it will be referred to during the analysis of the evidence and the applicable law, 2 During cross — examination, he stated that at the main gate where the applicant was found with the said item, he was directed at a table where they had a separate Security Officer who was registering the items found with different employees and he did not see where the applicant signed. He went on to say that the applicant was not supposed to get a Gate pass when taking the food oui but those employees who were bringing the food in and that there were rules regulating the taking in and out of foods, namely, authorization from the Responsible supervisor. He concluded by saying that the applicant did not have any warning prior fo this incident but that the offence he was charged with was a serious one as per the Disciplinary Code. When asked for clarification from the Employers’ Panelist, he stated that on this material date being a Friday, they were acting on a tip as most employees were going out with various items like food stuffs, toiletries, etcetra. Hence the apprehension of many employees with these items. When asked further by the employees’ Panelist, he said that he could not tell whether this food stuff was the applicant's portion/meal but the rule is that the food, (buffet), must be consumed within the cafeteria. If one want to have a take away, then one has to get permission or authority in a written form. 4, THE APPLICABLE LAW Section 57 (1) of the Employment Act provides that: ‘The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.” Section 59 of the Employment Act provides that: “(1) An employer is entitled to dismiss summarily an employee on the following grounds, interalia,: (a) Where an employee is guilty of a serious misconduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment such that it would be unreasonable to require the employer to continue in the employment relationship; (d) Wilful disobedience to lawful orders given by the employer. On Burden and Standard of proof of misconduct, the Court in Kandiado V. Total (Malawi) Limited, Matter No. IRC 99 OF 2002, had this to say: “In order to establish a misconduct, one does not need proof beyond reasonable doubt. It is a different thing if one is on suspension or interdiction and the lifting of suspension or interdiction is subject to the outcome of a criminal prosecution”. In considering the validity of a reason for the dismissal, the court do also have recourse to the conditions of service or the contract of employment itself. In Gerald Chimutu Ndeule V. ADMARC Maiter No. IRC 109 of 2000 (unreported), the court had this to say: “In terms of substantive justice we look at the reasons that led to the dismissal. We also look at the Conditions of Service which were in place at fhe Respondent’s place of work. In particular, we pay special attention to provisions relating to dismissals.” Whilst the employer has the liberty to dismiss an employee on reasons to do with conduct or capacity, the employee must first be afforded a right to be heard. Sections 57 (2) of the Employment Act provides: “The employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity.” In the case of Chakhaza V. Portland Cement Company (2008) MLLR 118 (HC}, after quoting section 57 of the Employment Act, the Court made the following observations at page 126: “What clearly emerges from fhe above quoted provisions of section 57 of the Employment Act is that while an employer can terminate an employee's employment for reasons to do with the employee’s conduct, the law places a burden on the employer fo ensure that the employee is given an an opportunity to be heard on the alleged misconduct before the termination can be effected. Otherwise it would amount fo unfair dismissal. The law is to the effect that decision of the employer should not be tampered with if the right to be heard has been complied with if there is no allegation that the process to arrive at the decision was not fair. See Mawaya and Others V. ADMARC, Matter No. IRC13 of 2005; Kachingwe and Others V. Southern Bottlers (Malawi) Limited, Matter No. 162 of 2003 (unrep.} Section 58 of the Employment Act provides “A dismissal is unfair if it is not in conformity with section 57 or is a constructive dismissal pursuant to section 60". The Respondent contends that it is a requirement that any employee wishing to remove property belonging to the Respondent seek the consent of their department head and the form which was fendered and marked as exhibit RK2 should be completed listing the items cleared for removal from site and signed by the department head. This is then handed to security at the main gate on exiting. In this present case the applicant had no such consent fo remove the pieces of chicken. In our analysis we agree with the Respondent that a closer look at the evidence herein tendered, the applicant did not follow the standard operating procedures in removing the cooked chicken pieces and whatever he was said as getting authorization from the kitchen supervisor has not been proven in any way. Even if that was the case, still the standard operating procedures could not have been complied with anyway. So such being the case, it can be concluded ihat the applicant removed the said food item without permission. But the story does not end here. It is now about the punishment which the Respondent meted out to or imposed on the applicant for such unauthorized removal of the cooked chicken pieces. The respondent in its final suomissions states that the Respondent's Disciplinary Code which the applicant was very much aware of and part of the employment contract between the applicant and the Respondent, under the guidelines provides that for offences that are sufficiently serious, in such a manner that they pose significant risk to the interests or operations of the company or its employees may attract a termination of employment or a summary dismissal on the first occurrence. The said code, it is submitted, as it was not tendered in evidence, that at page2, paragraph 9, it states as follows: “Some serious offences may evoke a first penalty or a written warning. Termination may be justified in cases such as gross negligence, dishonesty, refusal to work, extended absence without permission, intoxication, assault and insubordination” To that end the Respondent submits that it is justified to impose the sanction of summary dismissal on the applicant as it had a valid reason at both the law and the Disciplinary Code. The Respondent further submits that the applicant breached the duty of mutual trust and confidence he had with the Respondent and the Respondent could not be reasonably be expected to continue keeping the applicant herein; and that the applicant herein was thus guilfy of misconduct which was incompatible or inconsistent with the fulfillment of the express or implied conditions of his duties and accordingly the Respondent was entitled to dismiss him. Lastly, the Respondent submits that all in all, the applicant was guilty of misconduct and the decision to terminate his employment was in all circumstances fair and equitable and cannot be faulted at all. Having discussed the Respondent's submission on ihe penalty imposed upon the applicant, this court proceeds as follows: As a general rule, a court may not interfere with the employer's sanction. It is only in cases where the employee pleads that the employer did not act with justice and equity that a court may consider the sanction imposed and interfere with it where appropriate. See R. S Sikwese, Labour law in Malawi, Lexis Nexis (2010) p. 97. The applicant herein submits that he thinks his dismissal was unfair because when he was being employed he was told that if he commits an employment offence, he will at first be warned verbally, then in writing before dismissal depending on the particular case. As such he thinks the outright dismissal herein was unfair, See Pre-hearing proceedings. On the court's interference with the sanction, the learned author continued by quoting the case of Kachingwe and Others V. Southern Bottlers (MW) Ltd, Matter Number IRC 162 of 2003 (Unreported) IRC quoting from County Fair Foods (Ply) Ltd V. CCMA and others (1993) 11 BLLR 1117 (LAC) per Kroon, JA which held that: “The decision of the court as to the fairness or unfairness of the employer's decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all evidential material before the court, To that extent the proceedings are a hearing denovo” Thus, it is trite law that punishment must fit the offence and it is also an element of natural justice. It is unfair to impose a disciplinary action which is more excessive than is reasonable under the circumstances of a case. Again an employee is entitled to raise factors in mitigation so that the sanction is reduced and the employer is entitled to consider the mitigating factors depending on the nature of the job and operational requirements of the enterprise. Thus, when a court is deciding on fairness of the disciplinary action taken it ought to have regard to section 56 and 57 of the Employment Act. So in the case of Matipwiri V. Securicor Malawi Ltd IRC Matter No. 131 of 2001, it was held that “the fact that the applicant was absent for five days without permission on one occasion could not constitute a ground for termination of services. The Respondent should have exercised lenience towards the applicant after hearing the reasons for the absence in an impartial disciplinary hearing. The court finds that the punishment did not fit the offence” Again in Kalidozo V. Illovo Sugar (mw) Lid IRC Matter No. PR 181 of 2007, the court held that theft by the applicant of sacks which fhe Respondent would dispose of anyway was not serious enough to warrant a dismissal. The Respondent would have opted for other disciplinary actions such as a warning, given that the applicant had worked for the Respondent for over 21 years. This court, is of the opinion that the Respondent's submission that the guidelines under the Respondent's Disciplinary Code provides that for offences that are sufficiently serious, in such a manner that ihey pose significant risks to the interests or operations of the Company of its employees may attract a termination of employment or a summary dismissal on the first occurrence, does not include the circumstances of the present case. Surely, the taking of cooked meal or food which was served to the applicant out of the premises cannot be said to fall in the above cited categories. We think this is a proper case where the court ought to interfere with the Respondent's decision with regard to section 56 and 61 (2) of the Employment Act. The circumstances of the case herein are not sufficient enough fo warrant a summary dismissal but other forms of disciplinary action such as a final written warning. The Respondent acted with heavy handedness in dealing with the applicant herein. It did not act with justice and equity in dismissing the applicant. The Respondent ought to have considered the mitigation factors of the applicant such as that he has never commitied any offence prior fo the one herein and did not have any prior warning. Such being the case we find that the applicant's dismissal was unfair entitling him to the remedy of compensation as prayed for in his IRC Form 1. Having so found, we will proceed to the issue of quantum of the damages herein regard being had to section 63 (4) of the Employment Act. This court observes that circumstances of the applicant’s dismissal has a bearing on the quantum of compensation payable. The applicant contributed to his dismissal. We have only find fault with the sanction imposed, In Mbale V. National Bank of Malawi Ltd. IRC Matter No. 23 of 2002 where the applicant despite being unfairly dismissed for his prosecution arising out of fraudulent activities was awarded a lesser amount of compensation. The court took into account the financial risk the applicant posed to the Respondents. In Majawa V. Auction Holdings Ltd IRC Matter No. 25 of 2001, where the applicant was dismissed for violating a condition of his employment not to grow tobacco or sell his own or third parties tobacco to the Respondent. He was not given an opportunity to be heard. As he had worked for more than 10 years but less than 15 years, relying on section 63 (5) (c) the court awarded him 3 weeks pay for each of the completed year of service. This was because the applicant had caused his own dismissal and such he should only be awarded the very basic award for a person of that period of service. See also A. Muhome, Labour Law in Malawi (2012) p.p 84-85. In the present case, the applicant worked for the Respondent for almost three years. As such under section (63) (5) of the Employment Act, the minimum compensation awardable is one week pay for each year of service. However, this court exercise ifs discretion as per section 63 (4) of the Employment act by awarding the applicant a sum equivalent to eight months’ salary. This becomes (K38, 600.00 x 8) = MK308, 800.00 The said amount to be paid within 14 days from the date of this judgment. Any dissatisfied party has got appeal to the High Court within 30 days from the date here under. MADE This 9th Day of September at Mzuzu. H/H K. DAALUNGU DEPUTY CHAIRPERSON ats ae MISS C. T. NYIRENDA (MISS) EMPLOYERS’ PANELIST fini) borg MR ALEXANDER LUNGU EMPLOYEES’ PANELIST 9