MATTER NO. IRC 193 OF 2002
CORAM: R. Zibelu Banda, Deputy Chairperson
Kalua for Respondent
Ngalauka Court Clerk
Procedure for dismissal- Rules of natural justice-Flouting of company regulations-Severance allowance.
The applicant Leticia
Zolowere was employed by the respondent Total (Mw) Limited as Filling Station
The applicant averred that her services were unfairly terminated because she did not actually misappropriate the funds. It was one of staff under her supervision that had misappropriated the money and had promised to repay the company. She did not dispute that fact that she failed to report the loss when she first heard about it. The allegation against her was that she had failed to report the shortage when she knew about it. The applicant did not dispute the fact that she had been verbally warned before on allegations of similar nature. Further she did not dispute that there were some irregularities within the filling station where she was supervising, for instance, that she did not remit summary of sales to headquarters consistently as required and that her staff were under declaring metre readings and that at one time a fictitious top up card had be used to cover up shortage. These were matters, which the applicant as supervisor was supposed to check. However the evidence was that the applicant neglected such issues and therefore the company incurred loss to the tune of K40, 000.00.
When all these issues came to light the applicant was confronted and asked to explain. Her explanation was not satisfactory. Her employment was consequently terminated. In court she stated that she failed to report the loss because she was afraid that this could lead to her own account being deducted to cover for the shortfall. Apparently such shortfalls had happened before at the station and she paid for the shortages.
Before termination, the applicant had been warned and asked to improve in her performance. Until this time the applicant had failed to show much improvement. The respondents business was adversely affected by the loss that was occasioned due to the negligence. The applicant was invited to explain her position. She was informed of the allegations against her and she was given an opportunity to defend herself. It was after hearing the applicant that her employment was terminated.
Upon termination she was paid her notice pay for one month, she was paid salary for un taken leave days and her pension benefits were paid to her.
After assessing the facts and issues that arose in this case, the court finds that the respondent had proved that there was a valid reason for the dismissal in accordance with section 57(1) of the Employment Act, which states 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 respondent had also complied with rules of natural justice by giving the applicant notice of the allegations leveled against her and affording her the opportunity to defend herself in accordance with section 57(2) of the Employment Act which states that:
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 be expected to provide the opportunity.
The court finds that termination of the applicants employment was fair, it was done in accordance with the law and the applicants claim for compensation for unfair dismissal is dismissed.
The applicant claimed that she had not been paid all her terminal benefits upon termination. In cross-examination she admitted that she received her salary for May, her one-month notice pay, her salary for leave days and her pension. She informed court that she was not paid long service for the four years that she had worked for the respondent.
The long service that the
applicant was claiming is severance allowance. The Employment Act section 35(1)
makes provision for severance allowance. According to the schedule to section
35 she could get severance allowance if the pension to which she was entitled
was less than severance allowance. The applicant received about K12,300.00 as
pension benefit after tax. She had worked for the respondent for four years.
Her salary at time of termination was K5700.00. According to the formula
provided in the schedule to section 35 the applicant would be entitled to the
equivalent of two weeks pay for each year of service. This comes to K9800.00.
Obviously this is less than the pension benefit that she received. The law
states that the applicant can only get the greater between severance allowance
and pension. (See Banda and another v
The applicant claimed for medical bills, which she incurred after being attended to by a private medical practitioner. The respondent refused to pay for the bill because the applicant had received treatment from un authorized hospital. The respondent company had medical provision for its staff at all levels. The applicant was entitled to receive medical treatment at a designated hospital authorized by the respondent. When she got sick ion this occasion she deliberately without authority from her employer received treatment from un authorized hospital. This was in violation of the scheme provided by the respondent. The applicant has no claim for deliberately violating company policy. The claim for medical bills is thus dismissed.
Pronounced in Open Court this . day of .at LIMBE.