Tomoka v AHL Group Limited (IRC MATTER 98 of 2016) [2020] MWIRC 8 (16 November 2020)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 98 OF 2016 BETWEEN PER TOMO A oo oscseronntaaivsncna te veewediewnantnassbiny APPLICANT BUL BROUP UID ss ssscceseseansnsscnerenoennnskkepeumanvecever RESPONDENT CORAM: _ HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MR HAXWELL MKANDAWIRE, EMPLOYERS’ PANELIST MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR MOSES CHINKHUNTHA, APPLICANT'S COUNSEL MR FRANCIS M'MAME, RESPONDENT'S COUNSEL MR HEZRONE MHONE, COURT CLERK JUDGEMENT 1. INTRODUCTION The applicant commenced this action by way of IRC Form | claiming damages for unfair dismissal, withheld salary, severance allowance and Notice Pay. In defence, the Respondent filed IRC Form 2 denying the claims. Hearing of the matter took place and both parties herein paraded two witnesses respectively and they also adduced documentary evidence in support of their cases. 2. ISSUES (i) Whether or not the applicant’s dismissal was unfair, both substantively and procedurally. (ii) | Whether or not the applicant is entitled to the reliefs sought herein. 3. THE EVIDENCE As already alluded to above, the parties herein tendered oral and documentary evidence before this Court and we will be referring to the same when applying the applicable law other than wholly reproducing it herein. 3.1 APPLICANT’S EVIDENCE PW1: PWEKU TOMOKA He adopted and tendered his witness statement which was marked as exhibit PT and the attachments thereto which were marked as exhibits PT! to PT9. During cross ~ examination he stated that he was not then working and has never worked with the Airport club. He went on to say that before being engaged in 2008 he worked as a seasonal employee and was being paid accordingly. He also worked as a Barrow Runner before he worked as a Messenger and that being a Barrow Runner is tougher than being a Messenger which position he applied for on 10"" March, 2008. When shown an application letter, he confirmed it to be his and that the job applied for was that of a messenger or a cleaner; it was not a promotional letter but an application letter. He went on to state that exhibit PT4 was an Appointment letter for a job as a cleaner grade 8 and it was offered as a seasonal employment but accepted to work as a messenger and not a cleaner. He confirmed that PT 4 talked of probation period being one selling season. He continued by saying that one of the duties of a messenger includes cleaning around the premises. He admitted that as per exhibit PT9, his employment status changed from seasonal to permanent but not to staff grade. On PT7, he said that there is no position asthat of a messenger or a cleaner and that there is no lower Grade as a Grade there. He went on to say that by 15"" November, 2015, the Tobacco Season had closed and denied that in the year 2013 he was accused of misappropriating a netball but was requested by the company to replace it which he did. He said that he was working every Sundays and he was authorized to work on 15" November, 2015 as per the authorization of their supervisor, MrZenengeya. . He said that on this day, he played bawo with LysonKumwenda but it was after knocking off. He said he would not be able to confirm that the cups which he reported missing resembled the ones which were found at his house after a search. He conceded that full details of the case which were on the Notice of hearing were read out to him during the disciplinary hearing including his rights there at and that only four Security Guards testified against him. He said that MrKachione, his supervisor was present at the hearing by virtue of his position as a Head of Department and that the said four witnesses failed to adduce evidence against him that he had stolen the cups which were found at his house as these cups were not brought forth during the hearing. 2 During Re- examination, he stated that he replaced the netball because it was dumped in the basket bin twice; he threw it away to the outside bin as it was a torn one. After six months management asked him about this netball and when he explained that he had threw it away, he was told to replace it which he did. He said the Appointment letter (PT4) was a promotion to him because it was a mistake on the part of the Respondent to offer him that position instead of the messengerial one which was also offered to his friend Andrew Nakhwema who was also a Barrow Runner and that upon asking management on the same, they said that they will offer him the correct letter with the correct position of a messenger on his confirmation of appointment but they never did that until his dismissal. He maintained that he never worked as a cleaner as all along his job description was one of a messenger and even his salary. When asked by Member Panelists, he said that information on the correctness of his job status was made verbally by the Human Resources Manager, MrChakuma and upon following up with him he said that the same would be done during his confirmation. He went on to say that this was even discussed with the Manager, MrKanjaza verbally as well. He concluded his testimony by saying that he was never given conditions of service by the company. PW2: MR KHUMBO MSOWOYA He adopted and tendered his witness statement marked as KM. During cross - examination, he stated that he was a former employee of AHL Group having been dismissed due to misconduct at SS1 Grade which is that of a clerk and he rose to from Grade $4 which duties were that of distribution of Hessian sacksto the growers. He stated that in 2012 he was working at Mpherembe and in 2015 he went back to Mzuzu and that he worked at Mpherembe from 18" April, 2011 to 27" March, 2015. He went on to say that he used to come at TIL Office in Mzuzu and that it was in 2012 when he knew about the breaking of a window there in Mzuzu. He said he would not be able to know all the cups at Pweku’s house and that he was not in Luwinga, Mzuzu on 15" November, 2015. He said that about the shoe prints evidence, he saw them on Monday, 16" November, 2015 after the window was already broken into on Sunday the day the cups were stolen. He continued to say that based on the shoe prints, he concluded that the suspect was a KK Security Guard as the shoe prints resembled his shoes and that these cups were exposed for a long time. He concluded by saying that he did not know the reason why he was not called as the applicant’s witness during the disciplinary hearing. When asked by Member Panelists, he stated that six cups were stolen and it was the applicant who reported this to management and that he did not know whether the matter was reported to KK Security. at He also said that the works order form which he had seen in 2012 made by the applicant about the said broken glass and signed by the TIL Assistant manager to the Human Resources Manager was not honoured. 3.2. THE RESPONDENT’S EVIDENCE RW1: CHARLES KALIMBAKATHA BANDA He adopted his witness statement which he tendered and it was marked as Exhbit CKB. He stated that he was working with AHL Group PLC as the Security Officer in Mzuzu and that on one Monday, 16" November, 2016, the Regional Manager, MrMasanjala instructed him to conduct an investigation following theft of Company utensils. That as part of the investigations, together with KK Security guards being LysonKumwenda, Raphael Chunga and Blessings Josia Gama and himself went to search for the stolen items at the house of the applicant where they found six cups of tea which were suspected to have been stolen from the company, though the applicant insisted that the cups belonged to him. During cross — examination, he stated that on 15" November, 2015 he was not at the material office and that on paragraph 6.3 of his witness statement, he was just stating what he was told by the applicant and also other people and further that on paragraph 6.4, it is also what he was just told. He also stated that he also conducted the search at the night guards’ houses, namely, LysonKumwenda, RapaelChunga and Blessings Gama and LysonKumwenda played bawo with the applicant during day time. When shown two cups, a white one and another, grey with yellow patches, he stated that he had only seen the white one at the Assistant Manager’s office and not at the applicant’s house and that these were not the cups he had collected from the applicant’s office. He went on to say that during the material night he does not remember maize cobs having been stolen but remembered having seen the foot prints of a KK Security boot behind the applicant’s office. He stated further that the report of the missing cups came from the Regional Human Resources Officer and not the applicant and that during the disciplinary hearing of the applicant, he went out as per the traditional of the company. He also said that the AHL Office compound is fully secured. During Re- examination, he stated that on paragraph 6.3 said it was hearsay but with an explanation which was that all security companys do change shifts on Sundays as such if one is proceeding to another shift, he/she does not normally go home and this was the case with LysonKumwenda, hence his presence during day time on the said Sunday. RW2: JSB MASANJALA He stated that during the material period, he was working as the Respondent’s Regional Human Resources and Administration Manager in Mzuzu. He then adopted and tendered his witness statement which was marked as JM and the attachments there to as JM1 toJM3. During cross - examination he stated that paragraphs 6.4 to 6.6 of his witness statement is what he was told by other people and he did not know if the night guards were searched or not and he would not be able to identify the stolen cups or those collected from the applicant’s house. He went further to state that on paragraphs 6.7, what he stated was just a Report and on 6.8 it is what he was told as well and he could not for sure say whether he was advised or not. And that on paragraph 6.9, what he saying is that the netball herein was thrown away and not necessarily stolen as it was found in the dustbin and the applicant threw it away into a rubbish bin and that the applicant was neither charged nor invited for a disciplinary hearing for this issue. He continued to say that with regard to paragraph 6.11 the minutes did not indicate that the applicant refused to call any witness and that on 6.13, he was not talking of a formal warning letter but just a caution. He went on to say that he is not aware if the applicant was instructed to be throwing away whatever he found in the dust bin and that if there is a damage somewhere, the user must give the works order to the Human Resources Manager and in this case the window was not fixed as there was no works order. On the cups shown to him, he stated that there were certain cups which resembled with those at their office and that amongst the cups collected at the applicant’s house and those showed to him, he would not be able to show if they resemble as he did not bring those from the office. On the applicant’s employment, he stated that the applicant moved from seasonal to permanent employment within the Labour Grade position and that he was a Messenger/Cleaner but the minutes did not indicate the Cleaner Position and Andrew Mlotha was just a messenger and salaries were different with that of the applicant. He also said that one is allowed to work odd hours after approval for overtime sake and also for security purposes. He concluded by saying that he has never used the said stolen cups for taking tea and that the applicant was the sole witness of his case during his disciplinary hearing. In Re- examination, he stated that on paragraph 6.8 of his witness statement, the explanation is that the applicant was advised by his supervisor not to keep the kitchen utensils in the kitchen as he kept it closer to the windows but his advice was not taken. He said that at AHL Group, they have different grading systems of which one is labour grade and that the applicant’s movement from a Barrow Runner to take up a messengerial position was not a promotion but rather a change in position. 4. THE APPLICABLE LAW Section 31 (1) of the Constitution states that: “Every person shall have the right to fair and safe labour practices, and tofair remuneration.” Section 57 of the Employment Act provides as follows: (1) 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 requirement of the undertaking. (2) 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 expected to provide the opportunity.” Section 58 provides that ‘A dismissal is unfair if it is not in conformity with section 57 or is a constructive dismissal pursuant to section 60. Commenting on section 31 of the Constitution as well as sections 57 and 58 of the Employment Act, Potani J, had this to say in Chakhaza v. Portland Cement (2008) MLLR 118: “Regarding the claim arising from the termination of the plaintiff's employment, it must be acknowledged, as a starting point, that while an employer can bring to an end an employee’s employment, that has to be done in accordance with the law. The supreme law of the land, that is, the Constitution in section 31 accords to every person the right to fair labour practices. As a way of reinforcing section 31 of the Constitution, section 57 of the Employment Act lays down the parameters within which termination of employment can be properly and legally effected. In terms of section 58 of the Act, any termination done without conforming with section 57 amounts to unfair dismissal and entitles the dismissed employee to the remedies provided for in section 63 of the Act. The question the Court has to deal with is therefore whether in terminating the plaintiffs employment the defendant acted in conformity with section 57 of the Employment Act. A negative answer would entitle the plaintiff to appropriate remedy.” Again in Kachinjka v. Portland Cement Limited (2008) MLLR 161, Chikopa J.as he was then opined as follows on these sections: “Giving a Fair hearing to a worker before taking disciplinary action is a fair labour practice. Terminating for a justifiable reason is also a fair labour practice. The reverse of foregoing would, we think, be equal to unfair labour practices. See sections 57and 58 of the Employment Act of 2000. We are aware that the Employment Act of 2000 had not, at the time the issues giving arise to this litigation arose, not yet come into effect. We therefore speak of the said Act and the guidance it gives vis —avis fair and unfair labour practices. If we may conclude the debate about what constitutes fair or unfair labour practices it is our view that section 31 of the Constitution and (now) sections 56, 57 and 58 of the Employment Act give a good idea of what fair or unfair labour practices are and Court would do well to seek and heed such sections collective guidance.” Section 6] of the Employment Act provides that: (1) In any claim or complaint arising out of a dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair. (2) In addition to proving that an employee was dismissed for reasons stated in Section 57 (1), an employer shall be required to show that in all circumstances of case he acted with justice and equity in dismissing the employee.” In Mahowe v. Malawi Housing Corporation, Civil Cause No. 3687 of 2000, the High Court explained the need for the employer to supply the employee with the reason for dismissal and that such a reason must be one that is supported with evidence: “A Court will go further and examine the reasons given for the termination of employment and the acts of misconduct complained of and try to find out if the termination is justified. If the reason is not supported by evidence the Court may conclude that there was no justification for the applicant’s dismissal.” And in Jawadu v. Malawi Revenue Authority (2008) MLLR 397, Her Honour Rachel Zibelu Banda (as she was then) agreed with the sentiments of the Court in Mahowe case, supra, when she stated at 408 that: “It is therefore not enough to just allege a reason. The employer must justify it with evidence, see also Mahowe. Counsel for the Respondent was therefore wrong in law to suggest that the employer’s obligation in termination of employment was just to provide an opportunity to be heard and not to prove the allegations by calling witnesses and requiring the employee to defend himself.” The Court went further to state as follows: ‘In considering whether a termination is fair or unfair the Court must consider whether there was a valid reason for termination. In determining whether a reason was valid under section 57 (1) of the Employment Act, 2000, the Court must consider whether the employer acted with justice and equity in considering that reason as valid for dismissal, see section 61 (2) of the Employment Act, 2000, which is an extension of Section 57 (1) and also See Masamba v. IllovoSugar (Malawi) Ltd Matter No. IRC 23/2006 IRC,” 5. ANALYSIS OF THE APPLICABLE LAW AND THE EVIDENCE The applicant herein was dismissed following a disciplinary hearing which found him guilty of misappropriation of company property, failure to take reasonable precaution to protect company property and failure to obey reasonable instructions from a superior. The task of this Court therefore is to assess whether the said employment offences were valid, justified and supported by evidence in as far as they form the basis for the termination of the applicant’s employment. Further the Court will also have to consider if the Respondent gave the applicant a fair hearing and acted with equity and justice in dismissing the applicant herein. In the case of Henry MukhumaPhiri v, Chibuku Products Limited Matter No. IRC. 7 of 2008, the Court held that: “The employer in accordance with section 61 of the Employment Act has to discharge the burden of proof that the employee was dismissed for valid reasons. The standard of proof in this case, as if the case in all civil cases is a proof on the balance of probabilities.” Qn the right to be heard, Courts have expounded the law as follows: The right to be heard is complete and meaningful where a person who is condemned is made aware of the charges, allegations or suggestions which are levelled against him and that he is given an adequate time to prepare his defence. He should be given a chance to call witnesses even if the witnesses are the employer’ employees and also to cross — examine the prosecution/Respondent’s witnesses. Further, the tribunal which is set forth to hear the matter must be seen to be impartial and the hearing must not be a cosmetic one but a meaningful one in that the decision should not be a pre — determined one. Besides these, where investigations were conducted before the employee was invited to a disciplinary hearing, the employee should first be invited to learn the conclusions of the investigations so that, if he was guilty of the misconduct, he should adequately answer to it. SeeKalinda v. White Leaf Tobacco Ltd, Civil Cause No. 542 of 1995 (HC). Kanda V. Government of Malaya (1962) AC 322. HCKasambala v. SOBO Ltd, Matter No. IRC 305 of 2002. Thus failure to abide by these principles of natural justice will render the decision of dismissal unfair warranting the employee to remedies under Section 63 of the Employment Act. On this right to be heard, the applicant submitted as follows: “Reverting to the present matter, at the day of the hearing, the applicant requested the disciplinary committee to invite MrNyangulu who was working with the applicant at all material times in the same office as an invoice clerk; Andrew Nakhwema, the applicant’s predecessor who was using the same room and keeping the cups and tea utensils on the same place the applicant was keeping as per their handover, and he also knew the cups which had been stolen, Martin Banda a cook who knew the cups which were stolen; and KhumboMsowoya who was also using the cups which were stolen. All these witnesses, who the applicant wanted to come as his witnesses before proceeding with the Disciplinary hearing, were all still working with the Respondent at the time of the hearing. These people were the applicant’s crucial/principal witnesses and it was more than necessary that they should have been called as per the applicant’s request to substantiate the applicant’s case and contradict the Respondent’s evidence. Despite this request, the Disciplinary Committee refused to do this thereby depriving the applicant of an opportunity to properly and fully defend himself in the fullest sense as required by law, but also as indicated in the suspension letter dated the 26" day of November, 2015. The applicant was denied an opportunity to have witnesses to enable him to properly, adequately and reasonably defend himself. Thus he was subjected to improper, inadequate, unfair, unreasonable and unjust hearing. Despite the applicant’s resistance to proceed with the hearing in the absence of the said witnesses, the Respondent through the said Disciplinary Committee, proceeded with the Disciplinary hearing to the detriment of the applicant thereby predudicing the applicant’s case. To this submission, the Respondent’s evidence as per the witness statement of Mr JSB Masanjala is as follows: “6.11” I was on the panel of the Disciplinary hearing. At the Disciplinary hearing, the applicant was informed that he had the right to speak in a language of his choice and he chose to testify in Chitumbuka, to bring witnesses and he stated that he did not have witnesses; to cross — examine the Respondent’s witnesses and also to ask a fellow employee to speak for him. He did not object to the disciplinary hearing proceeding on the scheduled date.” When cross — examined on this paragraph, MrMasanjala stated that the minutes of the Disciplinary hearing did not indicate that the applicant refused to call any witnesses. Now, this Court having analysed the evidence on this aspect do proceed to find that on balance of probabilities the applicant has proved that he suggested that he call the above said crucial witnesses who were at the material time in the employ of the applicant but was refused. This being the case, we hereby agree with the applicant’s submission above as his case was seriously predudiced. It can thus safely be concluded that the Respondent feared that the testimony of these witnesses may have been adverse to the Respondent’s case. On the submission of impartially of the Disciplinary Committee in that Mr J. S. B Masanjala had an interest, we observe that much as the applicant suggests that MrMasanjala wanted by all means to dismiss the applicant hence his failure to capture a lot of anomalies during the hearing in the Report, the same has not conclusively been proved. On the justifiability of the reasons for dismissing the applicant herein, the case of Ifaye V. Malawi Distilleries Ltd, Matter No, IRC 25 of 2001 is very enlightening. In this case the Court stated that the answer as to whether the reason was valid to necessitate a dismissal can be found by considering factors raised in Polkey V. A. E Dayton Services Ltd (1987) 3 ALL ER at 983, where the House of Lords quoted with approval the following factors enunciated by Neill L. J, sitting in the Court of appeal in the same case at 989. “Where an employee is dismissed for alleged misconduct and he then complains that he was unfairly dismissed, it is to be anticipated that the industrial tribunal will usually need to consider (a) The nature and gravity of the alleged misconduct; (b) The information on which the employer based his decision; (c) Whether there was any other information, which the employer could or should have obtained or any other step which he should have taken before he dismissed the employee.” Submitting on this aspect, the applicant stated as follows: “Reverting to the case at hand, first and foremost, ... the applicant ... was not afforded a right to be heard or indeed a fair, adequate, reasonable or indeed proper opportunity to defend himself. 3 .... Beside this, the dismissal letter does not state or provide the reasons for the applicant’s dismissal. Infact the dismissal letter does not even state that the applicant was found guilty of the charges levelled against him or indeed any of them. It just goes to punishment. This is a clear evidence that the decision was really pre-determined. These notwithstanding and assuming that the reason for dismissal was that the applicant was dismissed upon being found guilty of the charges..., then the said reasons cannot be said to have been supported by any evidence for it to be valid. Evidence and allegations are two different things. To begin with it is stated in the dismissal letter that the Respondent’s story was that the applicant was playing Bawo on the said Sunday and since his supervisor was not aware, that he was to work on that day, then there was no work for him on that Sunday. However, and indeed unfortunately, these two observations were not part of the charges which the applicant was answering. Secondly, the said dismissal letter also stated that the Respondent informed them that he allegedly failed to take heed of advice that he should be leaving the items in the office of the Assistant TIL Manager, but he allegedly chose not to listen to the same. However, and indeed unfortunately, the Respondent never adduced evidence to that effect and during the hearing to which the said Assistant TIL Manager was one of the panelists, the said Assistant TILManager admitted, upon being asked by the applicant during the hearing, that he only told the applicant to prepare a works Order Form, nothing else and he failed to mention the date when those instructions/advice was stated/ given and who was present. Above all, instructions of transfer of goods and their quantity from one office to another at the Respondent’s institution are done in writing and not verbally. Accordingly, this allegation was never substantiated with any evidence and in fact there was no such instructions/advice, On the 4" point, it was in the first place, the duty of the Respondent to bring evidence to the fact that the cups which were stolen were the ones which were found and taken from the applicant’s house. Unfortunately, the Respondent failed to do this. Instead it was the applicant who requested that one of the said 6 small cups which was stolen, but was broken and left, should be brought to be compared with those which were taken from his house, but they refused. However, finally they went to a scene visit where after comparing the said cups, they found that:- (a) The cups which were stolen were smaller compared to the ones which were picked from the applicant’s house which were big. (b) Those taken from the applicant’s house were mug cups while the ones which were stolen were not ...” (c) The ones which were stolen were white in colour without any marks while ones which were taken from the applicant’s house were not ... and had different colour spots like orange, green and red. (d) The cups which were stolen were not broken, but the ones which were taken from the applicant’s house 3 out of 12 cups of the same size and colour were broken. Besides this, the applicant was searched when he was leaving the main gate and he went out with nothing. Indeed even from the observation of the Respondent’s case, point number, (4) in the dismissal letter, the Respondent never stated that people said that they saw the applicant taking the said cups to his home. It infact say that he failed to produce evidence that the cups that were found at his home were not the one that had been stolen, yet the difference in the same was clearly seen during scene 10 visit as indicated above, besides being the Respondent’s duty to prove that the cups which stolen were the ones which they found at his house. These aside, and assuming that there was no scene visit which verified the applicant’s assertion, which is not the case herein, how could he provide more evidence than the one he gave when the Respondent denied him an opportunity to call his witnesses to disprove the Respondent’s case on the cups, interalia? Indeed the Respondent invited four guards as the Respondent’s witnesses and all of them denied to have seen the applicant carrying the said cups. As for their 4" and last witness Raphael, he was not even on duty on the said Sunday and any evidence which he said, which infact never implicated the applicant herein, in any was hearsay. In totality of the foregoing, it is indeed clear that the no evidence was tendered before the disciplinary hearing which substantiated the charges which were levelled against the applicant. If at all there was any reason justifying the applicant’s dismissal then the same was not part of the charges and the applicant was not even given an opportunity to be heard on the same and the same the same do not appear in the dismissal letter.” This Court having analysed the evidence presented before this Court agrees to a larger extent with the applicant’s submissions and observation in light of what the Respondent’s witnesses stated during theirs cross — examinations as highlighted above. It was in the evidence of Charles KalimbaKatha Banda that he was not present on the material date at the office and what he stated in his witness statements was what he was told by the applicant and some other people apart from what he observed / find himself during the search at the applicant’ house. Equally so, is the evidence of MrJ. S. B Masanjala in as far as the evidence on what transpired at the applicant’s office on the material date and the description of the cups is concerned. On the 1 charge, the same was not substantiated with any evidence as the facts spoke for themselves when one of the small remaining cups which were stolen, was compared with the ones which were taken from the applicant’s house during the search. None of the four guards who testified as the Respondent’s witnesses said that they saw the applicant taking these cups or that the cups found from the applicant’s house were the stolen cups. They just stated that the cups resembled the stolen ones or were similar. Further none of these guards testified on the other charges. It was only Mr P. B Kachione the Til Manager who testified on the same, i.e. charges number | and 2. However his evidence was largely contradicted by that of KhumboMsowoya who stated as follows: “20. As regards other charges, the applicant was keeping the tea utensils at a place where his predecessor was keeping and he had at no time transferred or moved the tea utensils from the Assistant TIL Manager’s Office or indeed the office of any manager and kept them at a place different from where his predecessor, Andrew Nakhowema, was keeping. a1 21. In any event the applicant just continued what his predecessor was doing and the safety aspect of the office was the negligence of the Human Resources Manager by not replacing the glass which was broken despite several requests. 22. Furthermore, the place was well secured with two guards manning the applicant’s office. 23. Besides these, I verily believe that from the evidence and the security set up at the material Respondent’s premises, it was clear that the ones who stole the items were the guards who wore the shoes as per the shoe prints and not the applicant. 25. Furthermore, any instruction to move property from one office to another is done in writing at the Respondent’s office, for future reference and not just verbally. During cross -examination, he stated that he know of the broken window which was broken by thieves in 2012 because he used to come to TIL Office in Mzuzu including the issue about the people who reported to the Human Resources Manager about this broken window and he actually saw the signed works order form for the said glass. On the issue of shoe prints, he said he actually saw them on Monday, 16" November, 2015 after the window was broken into on Sunday, 15" November, 2015 the day the cups herein were stolen. He went on to say that based on the shoe prints which he saw he concluded that they were those of the shoes which the KK Security guards used to wear. 6. FINDINGS AND CONCLUSIONS Thus, having subjected the entire evidence hereinto scrutiny with the applicable law expounded above, and in view of the foregoing analysis, this Court finds that the Respondent did not have any valid reason for the applicant’s dismissal implying that the said dismissal was conclusively unfair as the charges which were proferred against the applicant were not supported / proved by evidence. Furthermore even if the charges herein were proved against the applicant, the punishment meted out to him would have been held to be unjust and unfair looking at the magnitude of the offence and the circumstances of the case generally and in particular the years of the applicant’s good service record. Accordingly, it is concluded that the Respondent herein failed to meet the provisions of sections 57, 58 and 61 of the Employment Act in dismissing the applicant thereby rendering the dismissal unfair entitling the applicant to the remedy of compensation as provided for in section63of the Employment Act; The same to be assessed by the Registrar of this Court. We note that the applicant prayed for the remedy of reinstatement, but having weighed the Respondent’s skeleton arguments and indeed regard being has to the circumstances of this case, the same is not tenable and it is not granted. Any dissatisfied party has got the right to appeal to the High Court as per section 65 of the Labour Relations Act. Dated the 16" Day of November, 2020. 12 K. D MLUNGU DEPUTY CHAIRPERSON HAXWELT-MKANDAWIRE EMPLOYERS’ PANELIST [uve hoe ALEXANDER LUNGU EMPLOYEES’ PANALIST 13