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Mullewa v Cadecom (MATTER NO. 24 OF 2001) [2002] MWIRC 33 (1 July 2002)

.RTF of original document


IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE REGISTRY

MATTER NO. 24 OF 2001


BETWEEN:


ZACHARY D. MULLEWA………………………………..APPLICANT

and

CADECOM……………………………………………..…RESPONDENT


CORAM:   HON. M.C.C. MKANDAWIRE, CHAIRMAN
                  Applicant – Present
Respondent – Present (Represented by Miss I. Nkhoma of Counsel
Davie Mpakani– Official Interpreter


J U D G M E N T

Matters in Issue : Unfair termination of employment

         Introduction

         The Applicant in this matter is Zachary Dominic Mullewa. He filed this case against the Respondents CADECOM – Lilongwe on a trade dispute of unfair termination of employment and in his Statement of Claim, he prays to this Court that he be awarded the following:-

(1)     
Salary withheld;

(2)     
Rentals;

(3)     
Transport;
(4)     
Personal money he lent to the office;

(5)     
Leave grant;

(6)     
Annual increment; and

(7)     
Expenses for his numerous trips to the Office of the Ombudsman.

All these quantified amount to K757,455=00

The Respondents in defence have denied these allegations. They claim that the Applicant’s employment was fairly terminated.

SURVEY OF EVIDENCE

It is settled as a fact that the Applicant herein was employed by the Respondents on 6th of June, 1996. The Applicant as a development director had a milliard of responsibilities. He itemized all of them and they amounted to fifteen. I have not listed them down in the way he did because they are not at all in issue in this case. When the Applicant took over office, he found that donors for the Lilongwe Diocese had stopped pouring in money. He however worked tirelessly until money started coming in again. Thus by February 2000, donors started funding the diocese again. On the 26th of February 200, a board meeting for CADECOM was constituted and later on the board confronted the Applicant with allegations of financial mismanagement to which he had to answer. To put it in a nutshell, there were several cheques that were signed by the Applicant alone without the other signatory. All these cheques were honoured by National Bank yet there was no second signatory as per the required standards of CADECOM. A check on these cheques further revealed that they mostly involved events to which the Applicant was an interested party. These included cheques such as:-

1.      
General Auto Parts
2.      
Apex Car Hire
3.      
Ryalls Hotel – Blantyre
4.      
C & V Investment
5.      
Kuchawe Inn
6.      
Seyani Stationery Suppliers

The total came to K73,388:00.
The Respondents thus looked at this as gross financial mismanagement and the Applicant was put on suspension. Finally on the 24th of March, 2000, the Applicant’s employment was terminated through a letter which he tendered as App Ex No.3. It is this termination that he calls unfair.

THE LAW

The law is very clear that before the employment of an employee can be terminated, the employer needs to do two things:-

(1)     
To provide valid reasons for the termination.

(2)     
To afford the employee an opportunity to be heard.

If one of these two is absent, then such a termination would be called unfair.

         ANALYSIS

         The evidence on record is very clear as to what led to the termination of the employment of the Applicant. There were mandatory guidelines in CADECOM as to how financial matters had to be managed. To the contrary, the Applicant went against these guidelines. All the cheques he issued were in fragrant violation of what was expected of him. The Applicant had no valid reasons in doing that. As per the evidence of Father Kubetcha, the Respondents viewed this conduct to have been extremely serious and it contravened Section 13 of the Conditions of Service which provides:-

“Should an employee be found guilty of conduct which, in the opinion of the Bishop, is prejudicial to the interests and the reputation of the Diocese, or becomes insolvent or financially or be guilty of dishonesty, dishonourable conduct----------”

         What the Applicant did by issuing cheques without the mandatory two signatures certainly falls under this clause 13. For any institution to survive, financial matters have to be efficiently controlled. Any financial manipulation would be prejudicial to the interests and reputation of that institution and especially a church institution such as the one at hand. The Court therefore finds that the Respondents had a valid reason in this case in taking the course of action which they did.
         It is again very clear from the evidence at hand that before the employment of the Applicant was terminated the Respondents gave him a chance to be heard. There is unchallenged evidence that during the meeting held on the 26th of February 2000 between the Applicant and the CADECOM Board, the Applicant was requested to explain about this financial anomaly. He was requested to exonerate himself from liability of the financial mismanagement allegations that were made against him. The Applicant who eloquently argued his case did not at all deny that such an opportunity was given to him. The Court therefore finds that the termination of the Applicant’s employment was fairly done, with the net result that it does not find any basis for condemning the Respondents. The Court therefore finds that there is no basis for it to order for the re-instatement of the Applicant.

         On the issue of salary withheld, the Court does not find any basis that there was any salary for the Applicant withheld by the Respondents. Nowhere in his evidence did the Applicant produce any evidence that these alleged new salaries were approved by the Board in order for him to claim an entitlement. This item therefore falls out. On the issue of rentals, the Applicant did not say anything when the case was being heard. The same applies to the issue of transport.

In relation to personal money lent to CADECOM by his wife, the Court finds that if the Applicant has cogent evidence, he can pursue a civil case against CADECOM to recover this money as money lent. I however find it extremely funny that an individual would have been using private money to run the affairs of his office at CADECOM.

In relation to the issue of leave grant; the Applicant said in his evidence that due to pressure of work, he could not go on leave. The Applicant was indeed a very busy man. I therefore order that for the five years when he could not go on leave, the Respondents should pay him in cash calculated at a rate that was applicable as per the Conditions of Service. The same should apply to annual increments up to the time his services were terminated.

As for the issue of transport to the office of the Ombudsman, I am afraid to say that this Court has nothing to do with those claims. He should have made this request before the Ombudsman himself because the case herein is before a totally different institution. Moreover, this Court is discouraged from awarding costs by virtue of the provisions of Section 72(1) of the Labour Relations Act which provides:
“Subject to subsection (2), the Industrial Relations Court shall not make any order as to costs.”

         DELIVERED this 1st day of July 2002 at Lilongwe.






M.C.C. Mkandawire
HON. CHAIRMAN

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