CIVIL CAUSE NO. 1635 OF 1997
I & E MALAWI LTD........................................................DEFENDANT
CORAM: HON. JUSTICE F.E. KAPANDA
By a writ of summons fully endorsed, a statement of the Plaintiff. Maggie Chimbayo, commenced an action against the Defendant. In the action so commenced the Plaintiff’s claims against the Defendant are as follows:-
(a) a declaration that her dismissal was wrongful and consequently ineffectual.
(b) her salary from December to date of judgment.
(c) in the alternative, damages for wrongful dismissal.
The Plaintiff also claims money in respect of overtime hours, public holidays and weekends worked.
On 5th August 1997 the Defendant indicated its intention to defend the action that failed to serve its defence on the Plaintiff. As a result of its failure to serve the said defence a default judgment was entered against it on 29 September 1997. The defendant had the default judgment set aside and it was allowed to serve its defence on the Plaintiff. This there was an exchange of pleadings between the parties herein.
The Plaintiff pertinent allegations of fact as revealed by the amended statement are as follows:-
3. The said contract provided inter alia that:-
(a) An employee would be liable to termination only after one verbal warning and two written warnings in connection with inter alia the employees’ failure to carry out instructions.
4. By letter dated 6th December 1996, in breach of the term referred to in paragraph 3 and the whole contract of employment, the defendant summarily dismissed the Plaintiff from employment.
5. As a result of the acts complained of, the Plaintiff has suffered loss and damage---
7. By the time she got dismissal letter referred to in paragraph 4 the Plaintiff had accumulated, for which when was not paid.
(a) 67 overtime hours
(b) 34 days for public holidays and week ends.”
The Defendant, in its amended statement of defence, admitted that it is a Malawian registered company and that among other things it runs self-service shops under the style Kandodo stores. It was further admitted by the Defendant that it employed the Plaintiff as a sales lady in its Kandodo stores with effect from 19th September.
But the Defendant denied the other allegations of fact made by the Plaintiff in her amended statement of claim and prays that the Plaintiff’s action be dismissed with costs. The relevant parts of the Defendants’ Amended statement of defence are as follows:-
3. The Defendant refers to paragraph 4 of the Plaintiff’s statement of claim and denies it in its entirety and contends that it summarily dismissed the Plaintiff according to its service contract.
4. The Defendant refers to paragraph 5 of the Plaintiff’s statement of claim and denies it in its entirety and contends that:-
(a) there was no termination of service.
(b) she was not owed any salary as she had been paid her dues.
(d) she was not wrongfully dismissed.
6. the Defendant refers to paragraph 7 of the Plaintiff’s statement of claim and denies that the Plaintiff had any overtime hours for which she had not been paid as all moneys owing had been paid in their entirety---”
By reason of the Defendant’s denial the parties joined issues on the legal suit commenced by the Plaintiff. To this end the Plaintiff was obliged to call evidence to prove all the allegations of fact made by her in her amended statement of claim. The Defendant, though not obliged to call evidence, testified in its defence.
It must be noted that the Plaintiff, at the hearing of this case, withdrew her two claims against the Defendant. These claims were in respect of a bonus which she alleged to be was entitled every December and the other claim was in connection with her alleged entitlement to a pension. In point of fact the Plaintiff did not offer any evidence with regard to these above stated claims. I now propose to deal with the evidence in this action.
PW1 tendered in evidence a letter, dated 6th December 1996, which conveyed the message that she had been summarily dismissed from her employment with the defendant. The pertinent parts of the letter of dismissal are as follows:-
We refer to the disciplinary form dated 6th November 1996 charging you with an offence under Code S.22 - Failure to carry out standing instructions.
It is reported that you failed to register a sale in your till on two packets of vim worth K5.85 each. You made this omission because you deliberately ignored work instructions despite repeated advice by your superiors.
V F Sinjani
It was the testimony of PW1 that her dismissal was wrongful in that she was not, at any point in time, warned either verbally or in writing before the dismissal. In point of fact it was further given in her evidence that the dismissal was not in accordance with the conditions of service. She further testified that at the time of her dismissal she had worked 34 days on public holidays and weekends and 67 overtime hours for which she was not paid as per terms of her employment with the defendant.
PW1 was cross examined at length. She appeared to me to be a truthful
witness. This is more especially with regard to what transpired on
the day she is alleged to have deliberately ignored work instructions.
I found her evidence generally convincing. I prefer her evidence
where it is in conflict with the testimony of DW1.
It was further given in evidence by DW1 that when the matter concerning
the said two packets of vim was reported to him he convened a meeting to
hear the Plaintiff’s side of the story. At the said meeting, DW1
testified, there was also present the Security Supervisor and the Shop
Supervisor. DW1 further testified that he believed the story of the
two Supervisors concluded that the Plaintiff was not telling the truth.
It was the further sworn statement of DW1 that the Plaintiff stormed out
of the meeting whereupon he contacted his bosses at Head office who instructed
him to ask the Plaintiff to sign a disciplinary form. DW1 further
told this court that the Plaintiff refused to sign the disciplinary form.
In cross examination DW1 upon being shown Ext. P2, conceded that he never
gave the Plaintiff a written warning nor a letter of advice, as was required
of him pursuant to the code of conduct and procedure, in respect the wrongs
allegedly committed by the Plaintiff. He further admitted that the
Plaintiff was not suspended prior to her being dismissed from employment.
Issues For Determination
The principal issue for determination in this matter is whether or not the dismissal of the Plaintiff was wrongful and consequently ineffectual. There are also auxiliary issues for determination if the main issue herein is decided in the affirmative. These ancillary issues may be identified as follows:-
(a) whether or not, if the Plaintiff was wrongly dismissed, she is entitled to date of judgment.
(b) whether or not the Plaintiff is entitled to be paid for the alleged overtime hours, public holidays and weekends.
It is argued on behalf of the Plaintiff that the dismissal of the Plaintiff was wrongful in that the terms of the contract of employment between the Plaintiff and the Defendant were not complied with. In particular it is contended, by the Plaintiff, that in terms of the provision of Ext. P2 if the Plaintiff committed a summary offence, which is denied by the Plaintiff, then she ought to have been suspended first pending a decision to dismiss her a thing which the Defendant did not do.
It is the contention of the Defendant that the Plaintiff was not wrongfully dismissed as there was a valid reason warranting the summarily dismissal of the Plaintiff. The Defendant has argued that the Plaintiff disobeyed lawful orders of the employer thus it was justified in summarily dismissing the Plaintiff. It is the submission of Counsel for the Defendant that the defendant led evidence, through PW1, to demonstrate that the Plaintiff had conducted herself in a way which showed disobedience at two levels viz refusing to adhere to standard practice of removing items from a shopping basket before registering some in a till; and storming out of a meeting coupled with the refusal to sign a Disciplinary Form.
Law and Finding
“(1) An employer shall not dismiss an employee summarily except -
“(a) where an employed is guilty of misconduct, whether in the course of his duties or not, inconsistent with the fulfilment of the express or implied conditions of his contract;
(b) for wilful disobedience to lawful orders given by the employer;
(d) for habitual or substantial neglect of his duties; or
(e) for absence from work without the permission of the employer or without other reasonable excuse.
(2) where an employer is summarily dismissed for lawful cause, he shall
be entitled on dismissal to wages due to him up to the time of his dismissal.”
The Defendant, as earlier noted, is contending that the dismissal of
the Plaintiff was lawful in that it was justified in doing so because of
the misconduct on the part of the Plaintiff. It is urged on the part
of the Defendant that the Plaintiff disobeyed lawful orders by failing
to carry out standing instructions. Further, it is contended, by
the Defendant that the Plaintiff’s storming out of a meeting allegedly
called By DW1 was an act of misconduct that warranted summary dismissal
of the Plaintiff from employment. Pausing here I wish to observe
that this letter contention can not stand in view of the fact that it was
not pleaded in the
In the absence of admissible sworn evidence to prove the fact that the Plaintiff failed to register the said two packets of vim because she disregarded standing instructions then it follows that her dismissal was wrongful. I therefore find that she was unlawfully dismissed.
Now having found that the Plaintiff was unlawfully dismissed I must proceed to make a finding on the ancillary issue of whether or not she is entitled to her salary from December 1996 to date of Judgment. This question involves the measure of damages in situation whether a person is unlawfully dismissed from employment.
“---I think I can safely conclude that damages for wrongful dismissal must be assessed at salary and benefits which would have calculated up to the earliest time at which the employer could, under the contract have terminated the employment. I think that Harlley-vs- Harman 113E.R.617 sets out the correct position in cases such as the instant one, namely, that where the contract is terminable by a months notice, damages will ordinally be a month’s wages plus, of course, other benefits which have accrued such as leave pay and bonuses if such things were payable as of right under the terms of the particular contract.”
Finally, I must dispose of the “issue of whether or not the Plaintiff is entitled to be paid for the overtime hours, public holidays and weekends. There is ample evidence that the Plaintiff worked overtime and that she worked during weekends and public holidays but the Defendant neither paid her for such overtime and for working during weekends and public holidays nor did the plaintiff go off duty for the equivalent hours or days worked. This is even acknowledge by DW1 in his testimony and it is clearly noted on exhibit P4. In my Judgment at the time of her dismissal the Plaintiff was supposed to be paid for the overtime hours and for the time she worked during public holidays and weekends. I therefore find that the Plaintiff is entitled to be paid in respect of the overtime and the public holidays and weekends worked. The amount payable should be assessed by the Registrar on a date to be fixed by him.
I am of this view because the Plaintiff’s action ought to have been
commenced in the subordinate court considering the damages that were awardable.
Pronounced in open court this 16th day of January 2001.