PRINCIPAL REGISTRY
MATTER NO. IRC 328 OF 2002
BETWEEN:
-and-
CORAM: R. Zibelu Banda (Ms), Deputy Chairperson
Nindi, Assessor, Employers Panelist
Nyirenda, Assessor, Employees
Panelist
Applicant
Sitima, Communication Workers
Malijani for the Respondent
Purshortum assisting Malijani, for the respondent
Ngalauka – Court Clerk
Justification
for dismissal- Valid reason must be provided- Burden of proof- Employer to
prove reason for dismissal- Substantive and procedural fairness to be complied
with-Remedies- Reinstatement-Factors to consider in reinstatement.
The
applicant was employed by the respondent as driver in 1986. His employment
service was terminated on
The Facts
It
was the evidence of the applicant that he had collected a fuel coupon for 10
litres. When he took the car for refueling, the fuel attendant pumped in 15
litres instead of 10 litres. The applicant realized the mistake but he did not
immediately take measures to rectify the mistake. When this anomaly was
discovered by the respondent, it instituted an inquiry and later three
disciplinary hearings into the matter were heard. The result of the inquiry and
the hearings was the applicant’s dismissal.
The
respondent’s witness testified that the applicant was seen at a place that was
notorious for illegal trading of fuel. He suspected that the applicant had gone
to this place with the intention of pumping out fuel from the car and selling
it. He did not actually see the transaction nor did he give evidence or proof
that the applicant had pumped out any fuel from the car. In the respondent
counsel’s submission, she explained that the only reason the applicant was
found at this notorious place was to sell fuel. Selling of fuel was an act of
fraud and contrary to Article 35.13 of the Conditions of Employment.
The Issue
The
issue before court was to determine whether the allegation leveled at the
applicant was enough ground to warrant dismissal. The applicant submitted that
the respondent did not have a valid reason for terminating his employment
services. The respondent on the other hand contended that getting more fuel
than was allocated was fraud and that being seen at a place notorious for
illegal dealing in fuel was also fraud as it led to a conclusive presumption
that the applicant was selling respondent’s fuel.
The Law
Section
57(1) of the Employment Act provides that:
The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.
The
burden of proving the reason for dismissal is on the respondent and not on the
applicant as alleged by the respondent in its submissions. The applicant only
needs to say that his dismissal was unfair because the reason or principle
reason for the dismissal was not valid.
This
burden of proof is a prerequisite principal of evidence stipulated in section
61(1) of the Employment Act, which states as follows:
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.
In
Earl v. Slater and Wheeler (Airlyne) Ltd [1973] 1 WLR 51, it was
held that, the duty is on employer to provide reasons for termination. If no reasons
are furnished, there is a presumption that the termination is unfair. The
respondent had a legal obligation to rebut this presumption on a balance of
probabilities.
In
the instant case, the court found that the respondent failed to show on a balance
of probabilities that the reason for dismissal was valid. The court could not
agree with the respondent that collecting five litres more fuel than was
allocated on a coupon was ground enough for dismissing an employee. Apart from
this one incident there was no proof that the applicant had been warned or had
been involved in any case of misconduct during the 16 year period that he
worked for the respondent. When dealing with misconduct cases the employer must
be very careful when meting out punishment. The punishment must fit the
offence.
In Polkey
v A E Dayton Services Ltd
[1987] 3 All ER 974,at 983, the
House of Lords quoted with approval the following factors of Neill LJ sitting
in the court of appeal in the same case [1987] 1 All ER 984 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
that employer could or should have obtained or any other step which he should
have taken before he dismissed the employee.
In
the instant case, the respondent’s only reason for dismissal was neither
serious nor grave. It was a one-off incident involving a small amount of fuel
and no proof was provided that he had misused that extra fuel, which he
collected. The respondent did not show how the extra five litres of fuel
adversely affected its operations or how it constituted a fraud on the part of
the applicant when the applicant did not actually pump the fuel from the fuel
tank to the car. It was a fuel attendant who pumped in the fuel.
The
respondent stated that because the applicant was seen at a place well known for
illegal fuel transactions then he must have engaged in selling fuel from the
car he was driving. This information was flawed in that it did not state that
the applicant had actually been seen selling fuel. The witness did not even
attempt to confront the applicant at the scene of the crime nor did the
respondent try to verify whether fuel and how much of it had been misused or
sold out by the applicant. This piece of evidence lacked any foundation and was
totally disregarded by the court.
There
was no other information that the respondent used to reach a decision of
dismissal. The applicant had no previous misconduct cases against him to
aggravate his case. There was virtually no substance in law in terminating the
employment service of the applicant.
It
is established at the
In
this case, the fact that a number of hearings were conducted including an
investigation could not on their own make the case for the respondent. There
was need for substantive justice, by proving a valid reason in law to justify a
termination of employment. See the following local cases: Ludoviko
Banda v Dwangwa Cane Growers Company (IRC Number 18 of 2001
(unreported)), Msiska v Dairiboard
The reason for dismissal
was not valid and therefore the respondent violated section 57 of the
Employment Act. According to section 58 of the same Act, such violation renders
any dismissal unfair. The court unanimously found that the dismissal of the
applicant was unfair.
The Employment Act provides
that an employee who succeeds in unfair dismissal case be provided with a
remedy. There are basically three kinds of remedies. These are; remedy of
reinstatement, re-engagement and compensation. Reinstatement is where the
employee is placed back to his original position in the respondent employment.
All benefits and privileges are restored back including arrears for when that
applicant was on unfair dismissal. Re-engagement is slightly different because
it entails putting back the employee in the respondent company but not
necessarily at the same position as before. In reality reinstatement and/or
re-engagement are seldom used. This is presumably because industrial realities
often militate against reinstatement. An employer cannot be forced to take an
employee back on even if reinstatement was ordered. Similarly, an employee
cannot be forced back to work with an employer. Reinstatement must be ordered
only when it is practicable. See, Keith Banda v Bible Society of
It has been established
elsewhere that reinstatement is normally not practical especially where:
·
Re-instatement
would provide serious industrial strife or cause profound disruption within a
very small business or organisation;
·
The
individual to be reinstated is a senior employee in the establishment as
compared to a general duties unskilled worker.
The
applicant was a mere junior employee working as a driver. He was not involved
in decision-making or with management of the respondent company. He would not
be in frequent personal contact with management and therefore there is unlikely
to be a conflict or serious industrial strife if he is reinstated. Further, the
court took judicial notice of the fact that the respondent company is quite big
and has various branches and divisions in most parts of
It
is the order of the court that the respondent reinstate the applicant with
immediate effect. Failure to comply with this order will attract further legal
sanctions from this court.
Pronounced
in Open Court this……day of……………...
2003 at LIMBE.
R. Zibelu Banda (Ms). Deputy Chairperson……………………….
Nyirenda, Assessor, Employees’ Panelist ……………………………
Nindi, Assessor, Employer’s Panelist ……………………………….