Komwa v Chloride Batteries (MSCA Civil Appeal 50 of 2009) [2010] MWSC 2 (24 November 2010)

JUDTUIAKY INTHEMALAWISUPREMEcoURToFAPPEAL AT BLANTYRE MscAcIvEAPPEALcAsENo. SooF2oo9 (Being High Court Ciuil Appeal No' 59 of 2OOB) BETWEEN: FRANCIS KOMWA. -AND- APPELLANT CHLORIDE BATTERIES RESPONDENT CORAM: HON. JUSTICE TAMBALA, SC.' JA HON. JUSTICE TEMBO, SC., JA HON. JUSTICE SINGINI, SC., JA Mr. Chayekha, Counsel for the Appellant Mr. Lameck, Counsel for the Respondent Mr. Mwale, Official InterPreter JUDGMENT Tambala' J. A. Theappellantwhowasnotrepresentedbycounselin both the Industrial Reiations court and in the High court in Mzuzu, brought an action against the respondent seeking compensation for unfair d.ismissal. He was stlccessful in the Industrial Relations court. But the respondent was dissatisfied. with the decision and lodged an appeal with the High Court in the Mzuztt District Registry Th.- appeal was successful, the court below having been satisfied that the appellant's dismissal was not unfair. The appeliant takes the z view that the judgment of the Court below is wrong and brought the present appeal to this Court. The facts relating to this appea-l are simpie and straightforward. The respondent employed the appellant as a data clerk in 1989. He rose to the position of senior Sales supervisor and was heading the respondent's Mzuzu Branch when his services were terminated on 3oth March, 2AAT . There was a cashier Mr spy Msiska who worked immediateiy under the appeliant. It was the duty of Mr Msiska to conduct sales at the counter and receive cash or cheques from customers. He would eventually hand the cash and cheques to the appellant who did the banking. The money would have supporting documents such as receipts, invoices and a saLes summary. It was the duty of the appellant to ensure that the money was supported by the relevant documents which he received from Mr. Msiska before he banked the money. The dispute between the appellant and the respondent arose when a customer reported to the respondent that he had bought a battery at the Mzuzu Branch and paid a post dated cheque, but the appeilant who conducted the sale lajled to issue an invoice to the customer. An investigation conducted by the respondent disclosed anomalies connected with the banking of money in 2006 and, since the appellant was responsible for banking, suspicion was focused on him. on 19th Januarlr , 2OO7 , the appellant was suspended from empioyment. The General Man ager of the respondent travelled to Mzuzu where he conducted inquiries from various customers who dealt with the Mzrtzu Branch of the respondent. The General Manager also invited the appellant to a meeting where they discussed the relevant banking anomalies. At the end of the discussion the General Manager asked the appellant to make a written report. The appellant obliged and on 21"t Februartr,2oo7 he sent his written report to the General Manager of the respondent. It would appear that Spy Msiska was also required, by the respondent, to submit a written report on the matter and he also obliged. J The respondent's investigatiolg ^revea-led fraud which resulted in a financial loss of r5s, 960.00._ Both the fraud and the amount of loss were r.r.aily admitted by both Msiska and the appeliant in their reports io the respondent and in court when they testified befoie the IndustriJ Relations Court; but blt*"d the other for the fraud and loss' tftey "."h Therearethreegroundssrrpportinglheappeal-. Thefirst ground argues that the leam"J J;age in the lower court erred inlawinholdingthatthewrittenreportsandthemeeting between the appellant and the General Manager of the respond"rrt .*ol'rrted to u. t*i, hearing regard being had to the factthattfrerewerecontradictingreportsnecessitt-t]1q,Aot^l hearing. s""iiorr- sT -(2) of i'e b*ptoy*ent Act requires the 'hi*. befbre termination of employertogiveanemployeeanopportunitytodefendhimself against allegations *^d. ;;;" employment. Ground orr. ottrre appeal clearly addresses that right possessed bv every t*o1"tti'll:^]t*ned Judge in the court below i""rt with the issue raised by ground one as follows:- - "u"Lr. "Tlte respond'ent wrote a report about such allegation|s. Heeuenmettheappellant'sGeneral Manager. The respondent says he.utas not giuen a -remains howeuer that hearing ai Ttte trutf't krc met him in respect of this matter' Can it be said that the respondent *i" not Lrcard? The answer is that ?rc w,,s heard. The IRC also agreed that he was heard. iin poi"t of departure is that the IRc thinks the ,trp,onh"n inoia haue been giuen an oral hearing'and not by uaA of repgrts as was done' "o " t.g"t necessity? t1t the Is an" oral heaing altentatiue "tuas it a necetrsity in this case? we discussed" the matter of heaiigs in IVluandenga V ieatth and Populatlon Secretary for IYliscetlaneous ciait cause JVo' 9 of 2903 (unrepoft,ed)'Wereiteratedt\tatthereisnouniform fashion of heanng an employee' Prouided QTL emptoge'-ho"beengiueno*pl"noticeofthecharges against him and a chance to defend himself it mqtters ruot uthqt kind of hearing an employee is afforded. It might be an oral one. It might be bg waA of reports. It is not true therefore, as the IRC suggests herein, that a hearing equals only an oral hearing. The procedure emploged bA the appellant cannot therefore be faulted merelg because the respondent was not orally heard." That is how the learned Judge in the Court below dealt with the issue relating to the employee's right to be heard on allegations made against him before his employment is terminated. There are certain things this Court would agree with the learned Judge. We agree that there is no lega1 necessity for an oral hearing. we also agree that there is no uniform fashion of hearing an employee in the context of section 57 {2) of the Employment Act. But, is there no standard, no matter how flexible it might turn out to be, which employers would be ca11ed upon to follow, if the employee's right to be heard in the circumstances would be meaningful? Is an employer at liberty to choose whether it suits him to give the employee an oral hearing without more or to give him an opportunity to confront his principal accusers including informers, or an opportunity to contradict and cross-examine essentia-l witnesses or simply demand written representations from the employee? We are concerned that the learned Judge in the Court below took a simplistic and casual approach in dealing \Mith the issue of an employee's right to be heard at the work p1ace. How did the Industrial Relations Court deal with the matter? This is what the learned Deputy chairperson of the Industrial Relations Court, in her iucid and elaborate judgment, said:- "It would seem fro* the euidence that after the anomalies in the cheques and inuoices Luere reuealed, the respondent simply asked the appellant and cashier to write reports. The allegation mq"de being that of fraud. The respondent ought to haue done much better than this. They ought to haue conducted an oral hearing. This theg did not do' Moreouer the utritten reports bg the tttto were contradictory which would haue giuen the respondent a further giound to conduct an oral heanng. This notwitltstinding theg proceeded to summanly dismjss appellant without such oral hearing and confrontation with the cashier. This was pricedurattg unfair in terms of Section 57 - (2) of the Emplogment Act. we agree with the view expressed by the learned Deputy Chairperson that when the evidence between the principal acc'u.sef and the employee against whom an accusation is mad.e, is contradictory the correct approach is to require an oral hearing where the employee can contradict accusations made against him and, where necessary, be able to cross examinJprincipal witnesses who give adverse evidence against him. We also u.gt". that where the allegation made against the employee is of a serious nature, aS was the case in the present "ppri and that the employee',s story strongly contradicts that oi ift. principal witness or rn i.tnesses for the employer, an oral hearing with an opportunif to cross-examine those persons makin! ad.verse statements would be advisable. This view is by the statement made by Lord Denning in the case of Kanda v. Government of Malaya [1962] AC 322 at 337 "lrppoit"d Lord Denning said;- ,,If the right to be heard is to be a real right which is utorth anything, it must carry with it a rig?tt in the accused man- to knou.t the case which is made against him. He must knotu what euidence has been girun and. what statements haue been made affecting him: and then tte must be giuen a fair opporhtnity to correct or contradict them'" In the present case the respondent's General Manager visited customers who dealt with the respondent's branch in Mzuzu. He made inquiries with those witnesses. Obviously those customers mad.e statements affecting the appellant, but it would appear that the appellant was not told about what the General Manager gathered from those persons. That was unfair. The respondent deliberately chose to act without transparency. The apperlant rnras being ambushed. clearly the conduct of the respond.ent in the marner in which it coilected evidence, concealed it from the appellant and denied him the opportunity to orally contradi.i utt.gations made against him, was inconsistent with the statement made by Lord Denning in the Kanda's case. The cas e of zodetsa and others v. council for the university of Malawi lhgg4l M. L. R 4L2 approved and adopted. Lord Denning,s dictum in the Kanda's case. - It is important, however to state that while it is important to safeguard the empioyee's right to be heard before his empioyment is terminate, care must be taken by the court to ensure that onerous standards are not imposed on empioyers necessitating turning the workplace into some kind of an employment tribunal, as that would make doing business in Malawi a very difficult and frustrating exercise. ihrt is why it would be useful to heed what Kamwambe, J., said in Jamu v. Nurses and Midwives council of Malawi civil cause No. s 1 of Zoo9(Principal Registry unreported.) The learned Judge said:- "I sLtould state further that the right to be heard. must be considered in tlrc contert of each particular cc,se by looking at and analgzing all the circumstences that preuailed. circumstances maa differ from one ca.se to another as the principles of natural justice as important guidelines maa be apptied. differentty depending on the pecutiaities o7 eiin case." However, in the present case we would agree with the iearned Deputy chairperson that circumstances existed which should have compelled the respondent to conduct an oral hearing where the appellant would have ample opportunity to address and contradict alegations made againsl-him and a further opportunity to cross-examine Mr. spy Msiska or anv other witness who gave damaging evidence. we ciearly disagree with the view taken by the learned. Judge in the court below on the issue whether the respondent properly complied with_ its duty to hear the appellant before terminating his empioyment. Ground two of the appeal addressed the same issue revolving aro'nd the employee,s right to be heard before his employment is terminated, It *o,ild, therefore, not be necessary to give it a separate treatment. "rrd Ground three of the appeal lacks ciarity. But it probably is to the effect that the lower court should have decided that the respondent could not be herd to have fairiy dismissed the appellant if it.tailed to prove, in the Industria-l Relations Court, the exact misconduct the appellant was accused to have committed- what happened was that the appellant was accused of having committed fraud and dishone"ty *a. dismissed by the respondent for that reason. The industrial Relations court, after hearing evidence, came to the conclusion that the respondent tailed to prove that the appellant committed fraud and dishonesty, tut tnat it proved thaj the appellant was guilty of gross n.g1ig.r.".. ThaL court took the view that the offence proved was a valid ground for dismissing an empioyee and that it was immaterii that tne reason proved in court is different from the reason which the respondent gave the appeilant for terminating his employment. This is the way in which the Industrial Relations court dealt \Mith the issue raised in ground 3 of the appeal. The learned Deputy Chairperson of the industrial Relations Court quoted a statement of Lord Denning MR in the case of Abernethy v. Mott Hay and Andersoi gez+1IRLR 2rB, as follows: - "I do not think that the reason hq.s got to be correctlu labelled at the time of dismissa/. Il may b" d";1h. employer zs wrong in raw as tabetting it as a dismissq.l for redundancg. In that c'.se the zarong label can be set aside. The Deputy Chairperson continued:- In the aboue case an emploaer honestly belieued that the cz,se constituted redundancy. The tribunal concluded" howeuer afi.er looking at the facts to the capabilities of the emplogee to the uork Lrc LUas employed to d.o. (sic) Borrowing from the English ,.lurisprudence then and in accordance with section 6I ol the Employment Act, it uould seem in Malaui where an emploaer faits to prouide the reason for a dismissal or where hauing prouided the reason the court finds that the facts do not constitute the stated reason nor anA reason at all to dismiss then the court witt haue to find that the dismissal utas unfair. where howeuer as it happened in the aboue case, the courl finds that the employer simplg wrongfullg Iabelled the reason for dismissal and the court on assessing the facts finds that actualtg the reason is another one then the court would set aside the stated reasorL qnd make a determination on the fairness or unfairness of the dismissal based on the rleu) reason." what the learned Deputy chairperson was saying was that the dismissal of an employee will not be regarded by the Court as unfair merely because the employer, at the time of dismissal, incorrectly stated the reason for dismissal with the result that when the matter is tried in court, a new reason equally capable of constituting a valid reason for dismissal, is estaHi"ft.d. The Court is not so much concerned with the label1ing or packaging of the reason for dismissal as with the substance and. true nature of the reason for the termination of empioyment. We considered the approach taken by the Industria-1 Relations Court and the conclusion which it finaliy reached on the matter and we find no fault with both. We entirely agree with the decision which the Industrial Relations Court made on this matter. The approach taken by the learned Judge in the Court below was that the Industrial Rerations court found that the appellant was dismissed for a valid reason, but he did not cross-appeal against the decision of the Industrial Relations court on that issue. The lower court therefore took the view that the issue of the va-iidity of the reason for dismissa-l was therefore not open for discussion in the court below. The iearned Judge was entirely correct. The appelrant did not cross-appeal on the issue of the validity of the reason for dismissa-l. we also take the view that since the issue was not argued in the- court below, it would be wrong for the matter to be raised and argued in tiris court. we find ground three of the appeal to be idie and incompetent. It is unsuccessful. we have agreed with the Industrial Relations court that in terminating the appelrant's emproyment, the respondent violated the appellaniJ right to be heard as provided for in Section 57-(2).of the Employment Act. Therefore, this Court, as did the Industriar Relitions court, takes the view that the appellant's dismissal was unfair. The appeal is allowed. No order as to costs is made. The matter is remitted to the industrial Relations court to consider the relief, if arty, awardable to the appellant. Delivered in open court on this 25*, day of November, 2070 at Biantvre. Signed,. Dfuv'^t^- D. G. Tambala, SC., JA signed. Xjl A. K. Tembo, Sb. ,JA , ,1./\ Signed.'. E. M. Singini, SC., JA