Kagwa v People's Trading Centre Limited (MATTER NUMBER IRC 161 of 2016) [2020] MWIRC 9 (28 July 2020)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY MATTER NUMBER I. R. C. 161 OF 2016 BETWEEN ROBLES AG WA ince Gis annsian'minanhobvpvasosisanniwnelovisens:.. 25... APPLICANT AND PEOPLES TRADING CENTRE LIMITED ...........ccccecceceeceecsececeseses, RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MR KISSA MWAFULIRWA, EMPLOYERS’ PANELIST MR ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR WILLIAM CHIWAYA, COUNSEL FOR THE APPLICANT MR GOVERN MPAGAJA, RESPONDENT'S H. R. O MR WASHINGTON MWENELUPEMBE, COURT CLERK JUDGEMENT 1, BACKGROUND The applicant herein was employed by the Respondent on 14!h May, 2003 as a Shelf Filler and rose to the position of a Shop Manager for Dwangwa Peoples Trading Centre until his dismissal on 20th September, 2016. ot - i “~ The basis for the dismissal was an allegation by the Respondent that the applicant failed to account for ration meat amounting to K75,800.00 and that he collected K56,850 from a customer for ration meat which was not printed in the cash register. The applicant then commenced the present action claiming damages for unfair dismissal: severance allowance and three months’ notice pay since the dismissal was based on non-valid reasons as the allegation by the Respondent are being denied in its entirety. The applicant further contends that at no point in time did any amount of ration meat never got printed and that at all times he accounted for the money that originated from day to day transactions within the shop. 2. THE EVIDENCE 2.1 THE APPLICANT'S EVIDENCE The applicant gave evidence orally under oath and tendered his witness statement which had attachments to it as part of his evidence. He testified that on 15! July, 2016 there came a customer who bought meat at the said shop and was assisted by workers at the shop's butchery whilst he was at the shop's bakery. He returned to the main shop and assisted this customer to carry the meat to his car believing that all payments and confirmations had been already done. He was later surprised to hear an allegation had been made against him by unknown co-workers that he was assisting customers to take out meat from the shop without first ringing the same on the till and also that he had assisted one Dada Maggie, a regular customer to take out ration meat from the shop worth K56,850.00 without ringing the same on the till. Following these allegation, internal auditors were sent to the shop to verify the allegations and he only read in his dismissal letter that the auditors in the end found that for the sales from 10th - 16! July, 2016 total meat transactions worth MK434,109.00 could not be traced on the till’s audit rolls. As part of further auditing, stock takers were also sent to the shop to have an emergency stock taking on 27'" July, 2016 whereby they found that there was a surplus Of MK77,007.78 contrary to the initial audit results. He tendered this stock reconciliation statement as exhibit CH3. However, despite this finding showing the surplus, the Respondent suspended him from employment the following day, 28'r July, 2016 pending ‘an investigation into his conduct / performance’ - the copy of the said notice was exhibited and marked as CK4. The same day he received a Notice to attend disciplinary hearing on 301 July, 2016 over dishonesty conduct in his work on the charges which were particularized an failure to account for ration meat money amounting to K75,800.00 and collecting money for ration meat from a customer in the sum of K56,850.00. He went on to state that despite the short notice he attended the hearing on the set date but that he failed to cross - examine some of the key witnesses for the Respondent such as Kumbukani Gondwe, (A Butchery Assistant) who the Respondent said that he had admitted assisting him to take the meat to Dada Maggies as he was not available / present That apart from categorically denying the allegations the majority of the employees who were invited to the hearing (15 out of 18) never testified that he was involved in any malpractice. That as such he was shocked on the 20h of September, 2016 to receive a dismissal letter on the ground of dishonesty and negligence as, interalia, (i) (ii (iv) (v) (vi) He was only given two days’ notice to attend disciplinary hearing and thus he had no enough time to prepare for the same implying that his right to defend himself was not properly adhered to; That after going through the disciplinary hearing report, some statements were added when the same were not made by the witnesses themselves as for example, Mr Levison Banda never testified during the hearing that he had answered one Mr Chivute Mwafulirwa that it was none of his business when he approached him asking why he had escorted a customer out of the shop without first making a ring at the till for the ration meat; That he was only charged with dishonesty and not with negligence as well implying that his dismissal was based on allegations that he was never accorded a chance to respond to; That in his invitation to attend a disciplinary hearing, the only allegations were with respect to the two instances involving meat amounting to MK75,800.00 and MK5é6,850.00 yet in his dismissal letter he was condemned with meat loss of MK434,109.00. That the finding of the disciplinary hearing committee and the subsequent recommendation which was followed by the Respondent, was contrary to the evidence which was brought before the committee with regard to his involvement in the said alleged acts such that no reasonable tribunal could have arrived at the decision to dismiss him in the circumstances; Finally, that he had never committed any offence and he has never been dishonest during the entire 13 years of service with the 3 Respondent. As such he believes that his dismissal was a calculated move to get rid of him as he suspect that the allegations were ‘cooked up’ by the till operators who had received warning letters from him. 2.2. THE RESPONDENT'S EVIDENCE RW: CAROLINE MAKHALA She stated under oath that she was a till operator at Dwangwa People Trading Centre Shop and that on 16! July, 2017 around 08.00 hours there came a customer who bought 20 kgs of meat amounting to K56,850.00 and instead of paying at the till, he came to the bulk store where the applicant and a cashier were and gave the manager some cash before going out without collecting the meat. The applicant then came to the till with the Butcher man and showed the cashier the meat which they had packed before taking the same out of the shop and delivered it fo this customer. Later, Mr Kumwenda, the Regional Manager came for investigations which revealed that the said meat was not tilled and she was told to write a Report just like other till operators did and other employees who were present on the material date before she was called as a witness at the applicant’s disciplinary hearing. During cross — examination she stated that she was not manning a till on that day but was working as a shelf filler since the applicant had removed her from the till because of a shortage. She said she was not bitter with the applicant for removing her. She maintained what she said in examination in chief of seeing the customer paying the money to the applicant and both him and the butcher man taking it out of the shop thereby confirming her suspicion that the money was meant for this meat as the same was not paid for by the customer at the fill. RW 2: CHIKUMBUTSO MAUDZU She said that he is the Respondent's Human Resources Officer. He gave evidence under oath concerning the procedures of recruitment at Peoples Trading Centre and which documents are shown to the employee for his acknowledgement and signature so as to work according to the applicable Rules and regulations of the Respondent. He tendered these documents as part of his evidence and were marked as exhibits CM1 to CMé. During cross — examination, he stated that the tendered documents did not go to the root of proving that the applicant was dishonesty or fraudulent. RW 3: DINGISWAYO KUMWENDA He stated under oath that he was the Respondent's Regional Manager and was then based in Lilongwe but prior to that he was overseer of Northern and Central regions. He gave evidence that having gotten a tip off from a member of staff at Dwangwa Peoples Trading Centre shop alleging that the applicant (ihen a Branch Manager) were involved in some fraudulent malpractice in 2016, he advised this well-wisher to gather tangible evidence and then on 16" July, 2016, this informant called him alleging that Kumbukani Gondwe the Butchery Assistant and the applicant had taken out of the store ration meat which was not ring in the till. He informed Regional Manager, Paul Tembo and together they immediately rushed to the said shop where they found that the butchery’s control sheet for the said day showed that 30kgs of ration meat worth K56,850.00 was sold out as the second item for the day. However, an audit report did not show this transaction. Concurrently, there was no record at the check out area to confirm this transaction but Mr Kagwa was present on this day. . They then summoned the applicant, Miss Gladys Chapabwenzi who was manning the fill then and staff members from the Butchery section namely, Kumbukani Gondwe and Fredrick Chawinga in order to enquire from them with regard to the said suspicious transaction. The applicant and Miss Chapabwenzi vehemently denied serving any customer meat that morning where as the two Butchery staff admitted doing so to a customer known as Dada Maggie who owned a Restaurant within the Township and that Mr Gondwe further revealed that he together with the applicant escorted this customer to her Restaurant which was strange as staff members can only escort a customer outside the shop. Then he and Mr Tembo visited Maggie's Restaurant whereby she confirmed having bought the said meat from the shop the same morning. This prompted the two to further investigate the previous day meat transactions and established that meat transactions worth MK75,800.00 could not be traced on audit rolls whose till operator was Mrs Everess Moyo and the applicant was the manager on duty. Both failed to satisfactorily account for this transaction. Afterwards an internal auditor came and conducted investigations on 18! July, 2016 which revealed that between 10! and 16!" July, 2016 meat transactions totaling MK434,109.00 could not be traced on the till’s audit rolls. Then due to these findings the applicant, Miss Gladys Chapabweni, Miss Linda Ngwira and Mrs Everess Moyo were charged with disciplinary acts of misconducts. The applicant was charged with (1) failing to account for ration meat worth MK75,800.00 and (2) collecting MK56,850.00 for ration meat from a customer, which meat was not printed in the cash register Then a disciplinary hearing was conducted on 30! July, 2016 whose committee comprised Mr Jonathan Mhone, Mr Charles Matita and Mr Chifuniro Banda. Mr Pqul Tembo and himself attended as witnesses for the Respondent and other members who attended the hearing included the following. (i) Mr Gerald Ajusu, Shop Assistant; (ii) Mr Levinson Banda, Shop Assistant; (iii) Mr Chibvute Mwafulirwa, ShopAssistant; (iv) | Mr Christopher Chinula, Shop Assistant; (v) | Miss Jane Mhone, Till Operator: (vi) Miss Carolyne Makhala; Till Operator; (vii) Mr Fredrick Chawinga, Bakery Assistant (vill) Mr Simeon Kamanga, Bakery Assistant ix) | Mr Kumbukani Gondwe, Butchery Assistant, and (x) Mr Yollam Kachali. Assistant Branch Manager. That the following members of staff also attended the hearing, although they were not directly involved with Till transactions: (i) Mr Goodwin Chirambo (ii) | MR Jepliter Chikolokoto (iii) = Mr Jonas Phiri (iv) Mr Brighton Kaunda and (v) Mr Peace Kanyimbo And that Mr Gerald Silungwe did not attend the hearing because he had left the service by then; and further that Dada Maggie excused herself from attending. He went on to state that the Disciplinary Committee submitted their Report in which they concluded that the missing of MK434,109.00 worth of meat transactions on the audit rolls within 7 days was a clear indication of dishonesty and gross negligence on the part of the charged till operators and Mr Kagwa and they were accordingly found guilty of the same. He continued to say that the guilty finding was per the evidence tendered and pursuant to Peoples Trading Centre Conditions of Service which stipulate that such offences attract the penalty of summary dismissal as the applicant did not 6 ensure that meat reconciliation procedures between the Butchery and Till Point were adhered to implying that he deliberately ignored the use of Control Sheet on Till Point so as to conceal the missing quantities of meat which was not ringing the fill. The witness concluded by saying that the disciplinary hearing herein followed all due procedures and fair administrative process as all relevant documenis were served on the applicant prior to the hearing herein. The witness then tendered these relevant documents as part of his evidence including copies of voucher and a cheque oroving due terminal dues payment. The applicant's copy of a letter for the Refund of his Pension and the Response from the Pension Fund administrator. All these were marked as exhibits DK 1 to DK i RW 4: MARIO SAMU He stated that he was Respondent's Internal Auditor based at the Respondent's Head Office, Blantyre and much of his evidence is materially similar to that of RW 3, Dingiswayo Kumwenda. Just to add that he said that the audit findings and conclusions at Dwangwa People Trading Centre Shop were made based on the analysis of Butchery Receipts, Production and sales transactions from 10! to 16! July, 2016 plus information gathered from staff members thereat. He went on to say that the audit findings were submitted to management as an internal Audit Report which he tendered herein as exhibit MS 1 and that staff members also submitted Written Reports beside their oral presentations which were marked as exhibit MS 2. The Butchery Control sheets dated 15! July, 2016 and 16! July, 2016 were tendered as exhibits MS 3 and MS 4 respectively. He concluded by saying that in a nutshell, the audit contended that the non - adherence to procedure was a deliberate ploy by the shops and management staff to misappropriate butchery sales proceeds. 3. LEGAL ISSUES TO BE DETERMINED (a)Whether the Respondent unfairly dismissed the applicant herein from its employ, or not; (b) Whether if (a) is answered in the affirmative, the applicant is then entitled to the reliefs sought in his IRC Form 1 or not 4. THE APPLICABLE LAW 4.1 THE CONSTITUTION Section 31 of the Republican Constitution of Malawi provides: “Every person shall have the right to fair and safe labour practices and fair remuneration.” Section 43 of the said Constitution provides as follows: “Every person shall have the right to- (a) Lawful and procedurally fair administrative action, which is justifiable in relation to reason given where his or her rights, freedoms, legitimate expectations or interest are affected or threated; and (b) Be furnished with reasons, in writing, for administrative action where his or her rights, freedoms, legitimate expectations or interests are affected.” 4.2 THE EMPLOYMENT ACT, 2000 Section 58 of the Employment Act provides that: “A dismissal is unfair if it is not in conformity with section 57.” The said section 57 provides that: “(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 requirements 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 herself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity.” Section 61 (1) of the same provides that: “In any claim or complaint arising out of the 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. Section 61 (2) provides that “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 the case, he acted with justice and equity in dismissing the employee.” 4.3 CASE LAW. Legal commentators have said that section 31 (1) of the Constitution introduces the public law concept of natural justice into what has traditionally been a private law domain. As Wilcox C. J of the Industrial Relation Court of Australia stated in the case of Nicholson V. Heaven & Earth Gallery PVT Ltd (1994) IRCA 43: ‘The relevant principle is that a person should not exercise legal power over another, to that other person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.” Similarly Lord Reid remarked as follows in Ridge V Baldwin (1964) AC at pp 113- 114: “The essential requirement of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations ... which he has to meet.” Thus, all this entails that there must be a disciplinary hearing. Now, considering that the Employment Act does not provide for the specific procedures in conducting a fair disciplinary hearing, courts have and are still developing rules as to what constitutes a fair procedure such that an employer must endeavour to follow the following stages: (i) Investigation so as to ascertain whether the alleged offence was committed and how serious it is/was; (ii) Notice, the employee must be given reasonable notice of all the factual allegations against him in a form he can reasonably understand and in sufficient detail to allow him to prepare for his case. See Illovo Sugar Co. Ltd V. Phiri Civil /Appeal No. 60 of 2008. (iii) Charge and Confrontation: where a matter concerns serious allegations, the applicants must be given details of the allegations with particulars properly outlined and they should be afforded the opportunity to confront those who accuse them.” lt was stated in the case of The State V. Council of University of Malawi, Ex - parte Msukumwa (H. C) Misc. Civil Cause No. 50 of 2006 as follows: “If one is to answer any charge, particulars of the same should be given to afford the accused a clear ouiline of the nature of the charge so that he is able to ably defend himself or herself. | say to ably defend himself to mean to equip oneself with the necessary ammunition. If is not 9 enough to give someone the right to be heard or to defend himself if he or she was deprived of adequate notice to ably defend oneself or the charge was so general that the accused fails to make a meaningful defence. One should not say, | understand | have a charge, they will make it clear to me during hearing time. Before the time of hearing the accused must be clear in his mind about the nature of the charge. Just to say come and answer charges ... and no more is so lacking and inadequate since it is devoid of particulars.” Where the facts are in dispute, written representations will not be enough. In that case the judicial recommendation is that the employer should hold an oral hearing ‘to satisfy the rules of natural justice or the duty to act fairly. A hearing becomes the employer's justification for termination of employment where there is disagreement of facts. The Judge went further to state as follows: “It is also a fundamental principle of natural justice that where the duty to act fairly demands an oral hearing, there is a right to cross - examine. Per Chimasula J. in Kwisongole and Others V. Toyota Malawi Ltd, Civ. Cause No. 3071 of 2000. 5. ANALYSIS OF THE EVIDENCE AND THE APPLICABLE LAW Section 57 of the Employment Act provides for three reasons that entitle an employer to dismiss an employee, namely: employee's conduct, his capacity and reasons relating to the operational requirements of the employer. Section 58 of the said Act provides for situations when a Court may find that a dismissal was unfair, to wit, validity of the reason (reason not being valid) and or the employer's failure to carry out a fair procedure before dismissing an employee and due to constructive dismissal. Thus, section 57 (1) and (2) have produced what is commonly referred to as rules of natural justice in employment such that every employee accused of misconduct or in capacity must be given a valid reason and must be afforded an opportunity to defend himself/ herself before any disciplinary action can be taken against him / her. These two requirements of reason and hearing have been classified into two well used terms of substantive fairness and procedural fairness. See R. S Sikwese, Labour Law in Malawi, 2010, P. P 77-79. Commenting on these two terms, Dr Cassim Chilumpha SC in his book, Unfair Dismissal: underlying Principles and Remedies (2008) at pp/ 28 — 29 had this to say: 10 “Before proceeding it should be noted that although substantive fairness and procedural fairness are discussed separately, that is for the sake of convenience and clarity of analysis only. The Act makes no explicit or implicit mention of them. In fact in their application the two are not discrete legal concepts. Only procedural fairness can be discussed as a distinct legal concept. By contrast, substantive fairness is intricately interwoven with the procedural fairness so that it cannot be independently of the latter .... Unproven allegations are not ‘valid reasons’ under section 57 (1) or ‘grounds’ for terminating employment under section 59 (1). Whether they are ‘grounds’ or ‘valid reasons’ within the respective meanings of the two provisions can only be legally established after the employee has been heard and account has been taken of his response to the allegations. Prior to that, all the employer would have are mere unproven allegations. In other words, the requirement to give the employee an opportunity to be heard is not a mere procedural technicality. On the contrary, it affects substantive fairness of the dismissal itself. As a result, it is difficult to see how, where allegations are not formally made against the employee before the employer terminates his employment, the employer can legally be said to have had at the time ‘grounds’ or ‘valid reasons ‘ for the termination. Put differently, in that case the dismissal cannot be legally said to have been substantively fair. The learned author then went on to state as below: “As the New South wales Industrial Relations Commission observed in Stuart Hill V. Department of Juvenile Justice (2000) NSWRIR Comm 128 para. 98 ‘The distrinction between procedure and substance is elusive. Thus it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational and unreasonable’. Therefore the question whether a dismissal is substantively unfair cannot be correctly decided by simply imposing a disjunction between procedure and substance. Steps taken or omitted to be taken by the employer before terminating employment have a bearing on whether the ensuing dismissal is unfair. An employee is entitled (as of right) to know prior to dismissal the nature of the material known to the employer against him. He is also entitled to an opportunity to respond to the material. If the employer fails to disclose it and to give him that opportunity, those are matter that the Court can correctly take into account in determining the substantive fairness (or otherwise) of the dismissal. The author then cited the case of Antona Kopoules V. State Bank of New South Wales (1999) NSWIR Comm. 328 which held that: ‘Procedural issues, that is failure to deal with the matter in a procedurally fair way, may... of themselves, constitute the basis for a determination that a dismissal is L1 (substantively unfair). A failure to adopt a procedure which constitutes a breach of “an essential perliquisite to, or inviolable limitation on, the exercise of the employer's right to dismiss” or a failure to afford procedural fairness which cause a ‘substantial and irrevocable prejudice to the employee’ will often vitiate the decision of the employer and warrant, in itself, a determination that the dismissal was (substantively unfair) (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the procedures, which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is (substantively unfair). And in Chakhanza V. Portland Cement (2008) MLLR 118, Potani J. commenting on section 31 of the Constitution as well as sections 57 and 58 of the Employment Act had this to say: - “Regarding the claim arising from the termination of the Plaintiff's employment, if 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 accord 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 sections 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 to section 63 of the Act. The question the Court has to deal with therefore is whether in terminating the plaintiff's employment the defendant acted in conformity with section 57 of the Employment Act. A negative answer would entitle the plaintiff to appropriate remedy." We have deliberately belaboured ourselves with the analysis of the law as above so as to be able address the arguendos raised in the applicant's final submissions and also by the Respondent in their IRC Form 2. The applicant addressed this Court in his submission on the shortness of the period between receiving a Notice to the disciplinary hearing, the suspension pending a disciplinary hearing and the actual conducting of the disciplinary hearing as follows: The Respondent terminated the applicant's employment on unfounded allegations including that of dishonesty. The Respondent suspended the applicant on the same allegations on the 28'h day of July 2016. It is, as shown, clear that the applicant was given a too short period of time to properly prepare for his defence to the Respondent's allegations. 12 To begin with, reasonable notice is one of the components of the right to be heard. An accused employee must be given adequate time to prepare for his case. In R V. Thames Magistrates Court, Ex - parte Polemis (1949) 2 ALLER 1220, Lord Widgery CJ commented as follows as to the need of sufficient time- “But versions of breach of rules of natural justice with which in this Court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the Court, and of course the opportunity to present a case to the Court is not confined to being given an opportunity to stand up and say what you want to say; It necessarily extends to a reasonable opportunity to prepare your case before you are called on to present it. A mere allocation of Court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.” In the instant case, we agree with the applicant submission on this aspect. The applicant herein was served with a’ Notice to attend a disciplinary hearing’ on 28th July, 2016 at 15.30 hours and the said hearing was scheduled on 30" July, 2016 at 8.00 hours implying that the applicant had only a day to go through the charges and be able to prepare for a defence on the charges of dishonesty with two counts. Honestly, this was too short a period of time. As if that was not enough, the Respondent served the applicant with a Notice of suspension on the same date of 28h July, 2016 pending investigations and at the same time inform him that there was a possibility of disciplinary hearing on 30' July, 2016 implying that there was not going to be any meeting when he will have to be called specifically for him to be told of the results or the findings of the investigations. In the case Kalinda V. Limbe Leaf Tobacco Ltd civil cause No. 542 of 1995 (unreported), the High Court stated that the question of whether rules of natural justice has been complied with is also depended upon the nature and seriousness of the allegations. Mwangulu J. had this to say: “The original understanding of the concept of natural justice is based on public law and understanding that the procedural fairness required should be as close as possible to the juridical process. It is clear that riginity need not be in cases of the nature this court is dealing with suffice to say that the extent to which the right to natural justice has been achieved in a particular case will depend on the nature of the allegation, the evidence in support and other surrounding 13 circumstances. Obviously, more is required for serious allegation, which affect the reputation and livelihood of an employee. The court later commented on the facts of the case:- “In my judgment, while the Company did establish a modicum of investigations, Mr Kalinda's Complaint that he was not given an adequate opportunity to answer the serious and consequential allegations against him appeals to this Court. Definitely, Mr Kalinda should have been invited to learn the conclusions of the investigations so that, if as it appeared to be, he was guilty of the misconduct which, in my judgment justified summary dismissal, he should have adequately answered to it. | come to the conclusion that the modicum of enquiry and treatment of Mr Kalinda fell short of adequately providing the employee with an opportunity fo answer the allegation of the nature made against him” Thus it is our holding that the applicant's submission that he was not given adequate and or enough time by the Respondent to prepare his defence should carry the day. Secondly, the applicant also testified before this Court that he was initially charged with two counts of failure to account for ration meat money worth Mk75,000.00 and collection of MK56,850.00 for ration meat from a customer. It was further the applicant's testimony that during the disciplinary hearing, the Respondent added a third charge of negligence and this was not rebutted by the Respondent. This charge is also coming out clear in the Disciplinary Committee Report on page 11 of 11, first sentence and also in the Dismissal letter to the applicant. The applicant submits that, it was, in the circumstances, impossible for him to properly appreciate the negligence charge, sketch his defence thereto and then plead to the same or find witnesses to testify on his part. In Kanda V. Government of Malaya (1962) AC 322 at 337, the Court explained what constitutes the right to be heard as follows: ‘If the right to be heard is to be a real thing which is worth anything, it must carry with it a right in the accused man to know what evidence has been given and what statements have been made affecting him, and then he must be given an opportunity to correct or contradict them” Furthermore, the right to defend oneself should not be cosmetic. in H. C Kasambala V. SOBO (mw) Ltd, Matter No. IRC305 of 2002, His Honour M. C. C. Mkandawire as he then was, expressed his sentiments as follows on this aspect: 14 “The first test here is whether the applicant was provided with an opportunity to be heard before he was discharged. This Court has now and again emphasized the point that the term ‘to defend oneself’ should be given a practical meaning. Employer should not conduct a cosmetic hearing and later on say that the employee was heard and he defended himself. This Court has now set down a litmus test in order for a hearing to qualify as a fair hearing because other hearings are a mere sham and not worth being called hearings. These conditions are:- (1) That the employee should be specifically charged with a conduct, which does exist as misconduct in the conditions of service. (2) That such a charge should be brought to the notice of the employee in very clear terms. (3) That the employee should be provided with an opportunity to give the side of his story. (4) That where necessary, witnesses should: be called and the employee should be given an opportunity to cross-examine them and where necessary; the employee should also summon his witnesses.” Accordingly we agree with the applicant’s submission on this aspect that the conduct displayed by the Respondent during the disciplinary hearing in adding another charge of negligence to the applicant when the same did not appear in the Notice was unjust and unfair such that one can conclude that the applicant herein was not afforded the right to be heard on this charge. Thirdly, it was the applicant's contention that he was never afforded a chance to cross — examine his accusers, for instance the Respondent's Butchery Assistant, Kumbukani Gondwe who it was alleged admitted to have assisted the applicant to take meat to one Dada Maggie. The cross — examination of this witness was very crucial since in his report exhibited in “MS2'dated 16 July, 2016 he states nothing of that sort, but he has been quoted in the Disciplinary Hearing Committee's Report on page 9 as having made such an assertion. We cannot emphasise more on the need for cross - examination of adverse witnesses and calling of one’s witnesses during a disciplinary hearing. See the Kasambala V. SOBO case, supra; Khoswe V. National Bank of Malawi (2008) MLLR 201. The observation is further strengthened when we take into account the applicant's evidence in his witness statement that Kumbukani Gondwe was not available for cross - examination and on para. 18 where the applicant deponed as follows: 15 “| was further surprised to read on the report by the disciplinary hearing committee some statements were added when the same were not made by the witnesses themselves. For example, Mr Levison Banda never testified during the hearing that | had answered one Mr Chivute Mwafulirwa that it was none of his business when he approached me asking why | had escorted a customer out of the shop without first making a ring at the till of the ration meat. Fourthly, the Respondent's evidence that the applicant herein collided with one Dada Maggie, a Restaurant owner at Dwangwa, on diverse dates to take meat from the Respondent's shop without first ringing it in the till has been greatly discredited by the applicant in the following manner. ‘The Respondent herein however suppressed a material fact before the Court that the said Dada Maggie vehemently denied the allegations when she was queried; We note indeed from the Disciplinary Hearing’s Report exhibited as DK 1 that this is so. See page 9 Of 11. Further, there is a contradiction as Mr Dingiswayo Kumwenda, the Respondent's witness. stated on para. 7 of his witness statement that when him and Mr Tembo visited Maggies Restraurant, Maggie confirmed to have the same morning purchased from People store the meat she served them; and again on paragraph 16, it is stated that Dada Maggie failed to attend the hearing after excusing herself from doing so. AS such we don't know in what mode this denial was made as we did not find any report of Dada Maggie within the exhibited bundle of the Reports and on the Disciplinary’s Committee Report, page 10 of 11 it is said as follows on Dada Maggie - last sentence: “When asked to write a report on how her transactions are handled at the store, she declined.” And finally, with regard to the fifth submission, We find it worth not to be discussed as the same was not referred to by the Respondent in its dismissal letter to the applicant. 6. CONCLUSIONS YY This Court, having analysed the evidence and the applicable law, comes to the conclusion that the dismissal of the applicant herein violated principles of natural justice or due process of the applicant's right. The law discussed above has its position that failure to observe the applicant's process rights will have an effect on the validity of the reason for the employee's dismissal since the allegations are just as such — allegations, which are not proven and therefore not grounds. See the case of Kachinjika V. Portland Cement (2008) MLLR 161 (HC) Polkey V. AE Dayton Services Ltd (1987) 3 ALL ER 974 at 983. 16 it was held in the case of Ridge V. Baldwin, supra as to what are effects of failure to observe Rules of Natural Justice, per Lord Reid: “A decision given without regard to the principles of natural justice is void.” And in General Medical Council V. Spackman (1943) AC 627; per Lord Wright at 644 -645 that: “If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived atin the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.” Accordingly, it is established that the applicant was unfairly dismissed from the Respondent's employment and he is consequently entitled to the damages there of which are to be assessed before the Registrar of this Court. He is also entitled to severance pay; also to be assed. Any aggrieved party has got the right to appeal to the High Court within 30 days from the date here below as per the provisions of section 65 of the Labour Relations Act. Made This 28!» Day of July, 2020 at Mzuzu. DEPUTY CHAIRPERSON MR KISSA'MWAFULIRWA EMPLOYERS’ PANELIST Ze ee MR ALEXANDER LUNGU EMPLOYEES’ PANELIST 17