IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. 42 OF 2001
ANDREW W. BESENI…………………………….……….APPLICANT
EDUCATION DEPARTMENTOF NKHOMA SYNOD………………….………………RESPONDENT
HON. M.C.C. MKANDAWIRE, CHAIRMAN
Applicant – Present
Respondent – Absent
Mr. Davie Mpakani – Official Interpreter
J U D G M E N T
This matter has been brought by Andrew Beseni the applicant against the Education Department of Nkhoma Synod who is the respondent. The trade dispute between the two parties is that of unfair termination of employment. The applicant is seeking the relief of re-instatement. After the matter was served on the respondent, they filed in a response and in that response, the respondent did deny the matter. They said that:-
(i) That the applicant was indeed employed by them in the education department and had worked for one and a half years and that his services were terminated whilst he was on probation and that the termination was in accordance with the conditions of service for Nkhoma Synod Christian Private Schools.
(ii) That the Synod has its own hierarchy for dealing with matters concerning its employees in the department, which allows departmental workers to appeal to the next level. Only after the higher levels have failed to resolve the problems of departmental employees would it be justified for the employee to seek relief elsewhere.
(iii) That in the case of Mr. Beseni he has not sought relief from the next layer of the hierarchy which is the Office of the General Secretary of the Nkhoma Synod and the Moderator.
(iv) That Mr. Beseni should be advised to lodge his complaint to the office of the General Secretary of the Synod for consideration.
The matter was set down for hearing for the 15th of April 2002. The respondent did not turn up for hearing. They however wrote a letter dated the 9th of April 2002 requesting the Court to refer Mr. Beseni to the General Secretary so that the General Secretary should hear his complaint. The Court tried to reason with Mr. Beseni if he was willing to go and discuss the matter with the General Secretary. Unfortunately, Mr. Beseni declined to do that. He said that as per the conditions of service that are in place, there is no grievance mechanism in place thus he has no duty to be bound by what the respondent is talking about. He produced the conditions of service and indeed there is nowhere in them where there is reference to what the respondent are talking about. The Court thus found that there is indeed the office of the Secretary General, but that should not be interpreted to mean that an aggrieved employee should first appeal to him/her before taking up the matter with the Court. Moreover, the applicant’s employment was terminated and he has all the right to seek redress in a Court of law. The Court therefore ordered that the matter should proceed because the respondent were fully aware that the Court had called them for hearing. It should be stressed here that when the Court has set down a matter for hearing, the parties to the case have to obey the call. Courts are not supposed to enter into correspondence with the parties. If that is done, matters shall not be finalized because there shall be a feast of correspondence. In this matter, we gave all the necessary notice to the respondent. If they were serious minded, they should have sent their representative to Court. The request should have been made in the presence of Mr. Beseni. But since Mr. Beseni is unwilling to follow what the respondent is thinking about and since that this is not even in the conditions of services, the Court found no justification in adjourning the case.
The Applicant told the Court that he was employed as a bursar on the 4th of January 1999. He was based at Dedza C.C.A.P. Private Primary School. It is his evidence that when the schools opened on the 4th of January 2000, the Headmaster of the school started to receive school fees on his own. The Applicant said that he sensed dangers with this system. It is his evidence that he as the bursar was the one who had the mandate to receive the fees. He was more worried because he was not in a position to ascertain as to how much fees the Headmaster was receiving and whether what the Headmaster was handing over to him tallied with what he had received. As a result of this, the applicant together with the Deputy Headmaster approached the Headmaster and pleaded with him not to receive the fees. But the Headmaster continued receiving the fees. On the 7th of January 2000, the applicant went to the Education Secretary of the Nkhoma Synod and reported the matter. He was however advised by the Education Secretary that he saw nothing wrong with that as long as the Headmaster was giving him the fees and he was issuing out the receipts. The applicant said the he still expressed the worry as to whether the Headmaster was bringing to him the correct amounts which he had received. To his surprise, the Education Secretary threatened him and told him to go back to the school and follow the instructions.
On the 27th and 28th January 2000, the Education Secretary convened two meetings. One meeting was for the Headmasters and the other was for the bursars. The objective of their meeting was to explain to them how they should carry out their duties as per the circular of the 28th of January 2000, which the secretary had sent to all the six schools in the Synod. After the meeting all the bursars said that they would wait for the circular to come to their school and work according to that circular since it had not reached their respective schools. Unfortunately for him, although the Headmaster got the circular on the 10th of February 2000, he did not bring it to the attention of the applicant until the 2nd of March 2000 when he was literally invited by the secretary to his office and told to release the circular. Thus on the 6th of March 2000 the applicant started implementing the contents of the circular. On the 10th of March 2000, the applicant said that he went to the head office to collect receipts. On the same 10th of March 2000, the Headmaster announced that school tests or examinations for end of the term would start on the 13th of March 2000. He deliberately announced the commencement of the tests in the applicant’s absence so that the applicant has no opportunity to make suggestions as to what would happen to those pupils who had not paid school fees. On the 16th of March 2000, the applicant said that he went back to the Education Secretary and informed him about the large number of fees defaulters who were however sitting for the examinations. The following day, the Education Secretary sent an accountant to audit the school. A report called "Outstanding Fees" was compiled which is App Ex No.2. On the 22nd of March 2000, the Headmaster and the applicant were called to explain as to how the outstanding fees was to be recovered as the term was closing on the 24th of March 2000. The arrangement made was that during the school holiday between March and April 2000, the outstanding fees had to be collected. It was further agreed that those pupils who reported with balances of previous term would be returned to their homes.
It is the evidence of the applicant that before the second term opened, the Headmaster was demoted to the position of mere teacher at the same school. This was done after several parents had confronted him during the holiday about the school fees which they had personally handed over to him, which he could not account for. During the holiday, the applicant said that he receive over K100,000 out of the K137,575:00 outstanding fees.
On the 3rd of May 2000 the same accountant came to make a snap audit. By then the applicant had K133,000 in the school safe of which K12,000 was for the creditors who were still paying the outstanding school fees. A separate report was compiled by the applicant, which was delivered to the Education Secretary by Mr. Dzimwe the Cashier from the Education Secretary. Thus the snap audit report by the accountant did mislead the head office because the auditor did not bother to physically count the cash of K133,000 which was in the safe. He only made a snap audit. The snap audit report is App Ex 3.
By the 13th of May 2000, it was found that the remaining balance was K26,000 but the rest had been misused by the Headmaster. The applicant said that he compiled another report on the update and again sent it to the Education Secretary through Mr. Dzimwe. On the 19th of May 2000, the Education Secretary personally assured him that he had received the report and that everything was not okay; and that by the 22nd of May 2000, he should be at the school since he had been temporarily suspended through the snap audit report letter App Ex 3. But the Headmaster was called to the office of the Education Secretary and asked as to how he would refund the fees that he had misused since he had admitted. It was also the applicant’s evidence that the Headmaster was the one who kept the records of the students who were admitted at the school plus those who were day scholars and those who were boarders; and that this is clear on point no. 5 of the guideline notes.
The applicant therefore says that his services were unfairly terminated. The respondent did not follow the procedure. He was not given a chance to be properly heard. He was a victim of circumstances as it is the Headmaster who had misused the money. His termination was based on the Headmaster’s wrongs. He also said that it is not true that he was on probation as the conditions of service stipulate that probation was up to 12 months and he had exceeded that period. The respondent had even increased his salary. That could not be possible if he was on probation.
This Court in looking at cases of unfair dismissal or unfair termination, has always referred to what the Employment Act has provided for. Section 57 (1) of the Employment Act provides:-
"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."
This provision in labour or industrial jurisprudence is what has been referred to as substantial justice. Then Section 57 (2) provides:-
"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."
This provision is what has now and again been referred to as procedural justice. This Court has on times without numbers said that a combination of substantial justice and procedural justice would always amount to fair dismissal. If one of them is missing or if both are missing, the result is always catastrophic because it always leads to unfair dismissal. This has been vindicated in Section 58 which provides:-
"A dismissal is unfair if it is not in conformity with Section 57 or is a constructive dismissal pursuant to Section 60."
It is also important to point it out on the onset that in all cases of dismissals, the duty is on the employer to provide reasons for the dismissal. This is by virtue of Section 61 which provides:-
"(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 the case he acted with justice and equity in dismissing the employee."
Having stated the law as it stands, I should now analyse the evidence that came from the applicant and marry with the applicable legal provisions. I have however not lost sight of the fact that the respondent did not argue their case in Court. This was due to their own choice.
A look at the evidence clearly shows that what led to the termination of the applicant’s employment is the issue about school fees. The Court listened to the evidence from the applicant. It is clear from the evidence, which went unchallenged that the Headmaster of the school is to blame for this fees scam. He was receiving school fees and pocketed a big proportion of it. The applicant who was junior to this Headmaster tried all he could in order to salvage the situation. He personally approached the Headmaster in the presence of the Deputy Headmaster. This did not help. He personally went to the Education Secretary to report about it. But he was sent back and advised to leave things as they are. Then there was a circular issued on how the fees had to be collected. Amazingly, but not strange with the conduct of this Headmaster, he hid the circular for some weeks. He only released it upon orders from the Education Secretary. One cannot therefore say that the applicant herein neglected his duties or performed below expectation. You do not expect a bursar to perform efficiently and diligently where the Headmaster is so tricky and fraudulent like in this present situation. The Court looked at the letter of termination, which is App Ex no.5. This letter was referring to a letter of suspension, which is App Ex no.3. The letter App Ex no.5 further referred to a report by the Accountant which report revealed that the record keeping by the applicant was not satisfactory. Then the letter finally summed up that in view of all this, the Headmaster had ended up misusing the fees.
It is thus clear that the Headmaster indeed misused the fees. The respondent however shift the blame on the applicant’s poor record keeping being the cause for the Head teacher to embezzle the funds. This Court found the reasons given to be baseless and tantamount to inequitable approach on the part of the respondent. The applicant had tried all his best to save the situation but he was not at all helped. How could the respondent expect proper record keeping from the applicant where there was total confusion. Instead of one person receiving fees, there were two. Instead of the bursar having proper guidelines on how to manage the fees and keep it properly the Headmaster had hidden the circular from him.
I found that the Headmaster is the one who is to blame in this case. He had a hidden agenda on the whole financial transaction no wonder he embezzled the fees. The whole system had become so chaotic and it is not because of the applicant but the Headmaster and Management itself. After the applicant had made his report to Management, they should have acted decisively. I therefore found that there is no valid reason here for the respondent to have terminated the employment of the bursar.
This Court also looked at the procedure followed before the employment of the employee was terminated. In the first place, it was acknowledged by the respondent after discussions that there was outstanding fees. Through a letter App Ex no.2, both the Headmaster and the bursar (now applicant) were told to collect the outstanding fees before the end of the term. In between, the applicant did his best to collect part of the outstanding fees apart from the one the Headmaster misused. This was between March and April 2000. Then on 3rd May 2000, a snap audit was done by the Accountant. This revealed a shortage and the Headmaster (now a new Headmaster) since the first one was demoted was mandated to receive the fees. The applicant was immediately put on suspension. The applicant was in the meantime asked to make an explanation of the shortfall. Then through App Ex no.5, the applicant’s services were terminated. The applicant told the Court that he was not at all heard. All he got was the letter of termination. Indeed, there does not exist any evidence that there was a hearing of the applicant before the final letter of termination was written. From the contents of this letter, it is clear that the respondent based its decision on the reports by the accountant. The reports were not even made available to the applicant so that he should have defended himself. In actual fact, the applicant said that the Accountant made his report without physically counting the cash that was in the applicant’s possession. This Court found that the procedure the respondent followed was very crude and unfair. They should have leveled charges against the applicant and afford him a chance to defend himself. This was not done and it amounts to unfair procedure. There was thus no procedural fairness in the matter.
The Court has further found that the respondent were not truthful in their response when they said that the applicant was on probation. The applicant had worked for one and half years (18 months). The applicant tendered in Court conditions of service, which are App Ex no.4. Clause 2 provides:-
"Probation period: The employee will on first appointment be engaged on probation. The period of probation shall be twelve months. At the end of the probation period the employee will either be confirmed, dismissed or three given an additional probational period of three months after which no additional period will be given."
In this case, the applicant had served the first twelve months on probation. He should either have been confirmed or given another three months. That took him to 15 months. After the 15 months, it could either have been confirmation or if he had problems, termination. Thus having passed the 15 months period, it should be taken that all was well with him. This case and its resultant decision took place when the applicant was in the eighteenth month. At that time, he was out of the probation period. If after the first 12 months the applicant had any problems with his performance, certainly the respondent would have informed him and extend for 3 months. I find this reason baseless and just a face-saver.
This Court found that the respondent acted with double standards. The Headmaster who actually is the culprit in this case has gone away with it. He is still working and has been transferred to Ntchisi. The poor bursar who did not misuse any fees has lost his job.
All in all, the Court found that the dismissal was wholly unfair. I do order therefore that the applicant be re-instated to his original job of bursar from the date the termination was effected.
MADE this ---------day of April 2002 at Lilongwe.