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The Malawi Judiciary

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU REGISTRY

MATTER NUMBER I.R.C. 146 OF 2016

BETWEEN

MUSTAFA JAWADU ........................................................................ APPLICANT

AND

G4S MALAWI LIMTED ..................................................................... RESPONDENT

CORAM: HIS HONOUR KINGSLEY DON MLUNGU, DEPUTY CHAIPERSON

MISS CECILIA T. NYIRENDA, EMPLOYERS' PANELIST

ALEXANDER LUNGU, EMPLOYEES' PANELIST

APPLICANT /PRESENT /UNREPRESENTED

MR. KHUMBO PHIRI, RESPONPONDENT'S HUMAN RESOURCES OFFICER

MR. WASHINGTON MWENELUPEMBE, COURT CLERK

JUDGEMENT

The applicant commenced this action against the respondent alleging unfair

dismissal and claims a remedy thereof, gratuity and notice pay.

Briefly, his evidence is that on 281h September, 2016, when he had reported for

duties he was asked to be tested for alcohol at the gate but he refused because

his religion does not allow him to take or drink alcohol (Islam) but his boss told him

that this was the work policy and he has to go by it. All in all, he was assigned

duties and after knocking off, he was told by the Human Resource Officer that

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they were summoning him for a disciplinary hearing to be held on Friday, three days after he had refused to take the breathlyser test but he refused.

The disciplinary hearing failed to take place twice but on the third time the hearing took place where allegedly some panelists talked bad of his religion especially on foods. He got angry as this was insulting his religion especially on foods. He got angry as this was insulting his religion and opted to leave. The verdict came dismissing him from employment.

The respondent's case through its Human Resources Officer Mr. Khumbo Phiri was to the effect that after the applicant had reported for duties on 28th September, 2016, he was asked to do a breathlyser test by the Company's Operations Manager, Mr. Kubwalo as per procedure but he refused. He then exchanged 'bad words' with the said boss. All in all, he was allowed to go for duties assigned to him. The following day, the then Human Resources officer, Mr. Kelvin Kantchowa issued a suspension letter to the applicant which when served to the applicant, refused to sign. He was then issued with a notice of hearing for charges on 'failure to comply with company instructions 'and' use of insulting language. The disciplinary hearing took place on 7th October, 2016, but his witness statement was recorded on 28th October, 2016. The hearing was chaired by Mr. Derrick Chirwa and records were produced. During the hearing, the applicant walked out of the hearing so as per the company's procedure, the hearing proceeded in the applicant's absence. He went on to say that as per the Respondent's Disciplinary Code, the charge of use of insulting/ abusive

language warrants a summary dismissal and that of failure to comply with instructions, is a final written warning and a. second offence, is a dismissal. On 141h

April, 2017, the pension dues were duly paid to him .

The evidence of Mr. Khumbo Phiri was corroborated by that of Mr. Rashid Mtawali, the Respondent's Security Supervisor who was the complainant at the disciplinary hearing of the applicant and was the one doing the breathlyser test on the material day. He added that when his boss told the applicant to take a test he refused saying 'even his mother has never tested him for beer and that 'Zopusa pakamwa panga ayi.' He was saying this loudly and the boss just instructed him (Mr. Rashid) to temporarily leave the applicant aside and to proceed testing other employees.

The respondent also called Mr. Derrick Chirwa who was the chairman of the applicant's disciplinary hearing and his evidence was that during the hearing at first the applicant admitted the charge but when he was asked questions, he insulted them (the Panelists) and walked out on them. The committee recommended disciplinary as per the Disciplinary Code.

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During cross -- examination, he denied ever discussing about pork and that the panel was set to look at the applicant's guilty and find evidence on insulting language.

THE APPLICABLE LAW

Section 57 ( 1) of the Employment Act provides that:

"The employment of the employee shall not be terminated unless there is a valid reason for such a termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking ."

Section 57 (2) of the Employment Act provides that:

"The Employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is provided with an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity."

Section 58 of the Employment Act provides that"

"A dismissal is unfair if it is not in conformity with section 57, or is a constructive dismissal pursuant to section 60."

On summary dismissal, section 59( 1 )(a)(b) and (d) of the Employment Act states that :

"An employer is entitled to dismiss summarily an employee on the following

grounds:-

• Where an employee is guilty of misconduct in consistent with the fulfilment of the expressed or implied conditions of his contract of employment such that it would be unreasonable to require the employer to continue the employment relationship.

• Habitual or substantial neglect of his duties. • Willful disobedience to lawful orders given by the employer.

PROOF OF REASON FOR DISMISSAL

Section 61 ( 1) of the Employment Act states 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 the dismissal of an employee and if

the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair."

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Section 61 (2) states that: "In addition to proving tha t an employee w as dismissea for reasons stated in section 57 ( 1), an employer shall be req uired to show that in all circumstances of the case, he acted with justice and equity in dismissing the employee.

ANALYSIS OF THE EVIDENCE AND THE LAW

The applicant was summarily dismissed by the respondent through a letter dated 18th October, 2016 effective 291h September, 2016 on the following grounds:

( 1) Failure to comply with company instructions; (2) Use of abusive language/ insulting language

It shou ld be stated at the very outset that the law on misconduct is as follows:

"In all cases of misconduct, investigations form part and parcel of the disciplinary process. Disciplinary action cannot be taken against the employee for allegations of misconduct without enquiries being made into the alleged

misconduct unless the employee is caught red handed."

See: R.S SIKWESE, LABOUR LAW IN MALAWI, P.91

As it has been held in POLKEY -V- A.E DAYTON SERVICES LIMITED (1987) 1 ALLER 984 that:

"In a case where an employee is dismissed because the employer suspects or believes that he/she has committed an act of misconduct, in determining whether that dismissal is unfair, the court must decide whether the employer who discharged the employee ... entertained a reasonable suspicion amounting to a belief in the quilt of the employee of that misconduct at that time. This involves three elements. First there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the

employer had in mind reasonable grounds upon which to sustain that belief. And third, the employer at that stage at which he formed that belief on these grounds must have carried out as much investigation into the matter as was reasonable in the circumstances of the case."

So, in this court's analysis as to whether the employer's reason for dismissing the applicant was justified or not, we proceed as follows:

It was stated in the case of MAHOWE -V- MALAWI HOUSING CORPORATION Civil Cause Number 3687 of 2000 (H .C) that :

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' . I "The court usually examines the reason for termination of employment and the

act of misconduct and try to find if the termination is justified. If the reason is not supported by evidence the court may conclude that there was no justification for the plaintiff's dismissal."

Further, the law under section 61 of the Employment Act provides that the employer must act with justice and equity in deciding to dismiss an employee.

In JAWADU -V- MALAWI REVENUE AUTHOURITY (2008) MLLR 397 (IRC) the court held that :

"In cases of dismissal, it is not just a matter of producing reasons and conducting a hearing in compliance with section 57(1) and (2) of the Employment Act. A court will go further to find out if the termination was justified. If the reason is not supported by evidence, the court may conclude that there was no justification for the dismissal . The burden of substantiating reasons for dismissal is on the employer. When the employer fails to prove the reason on balance of probabi lities, there is a conclusive presumption that the dismissal was unfair."

In the instant case, the respondent did terminate the services of the applicant after the disciplinary hearing established that the applicant on 28th September, 2016 refused to be tested alcohol with a breathlyser when he reported for duties around 17:30 hours and that he shouted abusive/ insulting language at the Security Supervisor and the Operations Manager. During the disciplinary hearing, the applicant walked out of hearing room in protest despite the Trade Union representative that were representing pleading with him to stay on, hence the conclusion of his case in his absence. Again the respondent argues that the applicant was advised in the dismissal letter that if he is not satisfied with the decision which was made he had the right to appeal within five days which he did not. Again, the applicant's claim of unfair dismissal is unjustified as he was called for a disciplinary hearing and direct evidence was brought forward to support the allegations made.

FINDINGS AND CONCLUSIONS

In our analysis of issues of both substance and procedure, we find that the dismissal was fair. The respondent furnished the applicant with a reason for dismissal . The reason was valid as it was provided for in the respondent's Disciplinary Code of Offences. Again it has been held that 'insubordination as an act of misconduct may take different forms including refusal to obey lawful superior orders .... "

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See: SIKWESE, LABOUR LAW IN MALAWI, Pp 80-82. The applicant was given an opportunity to be heard and defend himself during the disciplinary hearing. Before the same was concluded, he walked out beside the Trade Union representatives pleading with him not to do so. The respondent has also demonstrated that the ultimate sanction of summary dismissal is in line with the respondent's Disciplinary Code and under section 59 of the Employment Act.

To that end, it can be concluded that the respondent in all the circumstances of the case had acted with justice and equity in effecting the applicant's dismissal. This action is therefore accordingly dismissed in its entirety. In the circumstances, the claim for notice pay and gratuity cannot succeed.

MADE At Mzuzu this 23rd day of November, 2018.

VJ~ K.D. MLU U DEPUTY CHAt PERSON

C.T NYIRENDA EMPLOYERS' PANELIST

ALEXANDER LUNGU EMPLOYEES' PANELIST

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