2.
Procedure-Employer to act reasonably-Regard to be had to the nature of the violation-employees duties-penalty imposed-procedure followed-nature
of damage incurred-previous conduct and circumstances of the employee
Facts
The applicant was employed as Driver. On the material day he was on duty. He was driving around some members of staff who were delivering
mosquito nets. At the close of the day’s business there was a shortage of mosquito nets. The applicant was dismissed on account
of this shortage. In calculating and paying out his terminal benefits, the respondent deducted MK50 000-00 being the cost of lost
nets attributed to the applicant. The applicant challenged this deduction. He contended that it was unfair because as Driver he was
not responsible for the custody, handling or distribution of the nets. The nets were not under his control. The respondent on that
other hand alleged that the applicant being Driver of the vehicle that had a shortage of the nets was responsible for the loss and
hence the deduction.
Issues
Whether the Respondent lawfully deducted the sum of K50 000.00 from the applicant’s terminal benefit? Whether the Respondent led sufficient and convincing evidence substantiating
that the applicant stole the concerned blue nets and was therefore liable for this loss? Whether the applicant was in charge of the
blue nets in question?
The Law
Section 56(4) and (5) of the Employment Act provide that an employer may deduct a sum of money from an employee as restitution for
property damaged by that employee. It provides further that in taking this decision the employer must take into consideration among
others the duties of the employee and the penalty imposed on the employee.
In the instant case the court heard that the applicant’s duties were that of driving other members of staff who were responsible
for delivering nets to various places. The applicant just drove the vehicle from one place to another. Therefore the court found
that the applicant’s duties did not include accounting or having custody or in control of the nets. Therefore he could not
be held accountable for the lost nets.
The court also heard that the money was deducted after the applicant had had his services terminated. Section 56(5) provides that
the employer must act reasonably and in any event a court must consider the penalty that the employer imposes on an employee. The
court found that this was double punishment, first a termination and then secondly the deduction which the court has found unjustified.
Finding
The court finds that the deduction of the sum of K50 000.00 from the applicant’s terminal benefits was unfair and unjustified as the respondent did
not have sufficient and convincing evidence to substantiate the allegation that the applicant was responsible for the missing nets.
The court further finds that the applicant was in fact not in charge of the nets in question. Consequently the respondent is ordered
to reimburse the applicant the MK50 000-00 plus interest to be assessed from the date when the terminal benefits were due to when
the money is paid.
Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision.
.RTF of original document