Auwen Mukwala v Blantyre Sports Club (IRC MATTER 32 of 2025) [2026] MWIRC 14 (27 April 2026)

Page 1Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 REPUBLIC OF MALAWI IN THE INDUSTRIAL RELATIONS COURT OF MALAWI PRINCIPAL REGISTRY IRC MATTER NUMBER 32 OF 2025 BETWEEN: AUWEN MUKWALA……….…….…...….……….……...………………………………...APPLICANT AND BLANTYRE SPORTS CLUB……………….…………………………………..………….RESPONDENT CORAM: WYSON CHAMDIMBA NKHATA (DEPUTY CHAIRPERSON) Mr. Mickeus- of Counsel for the Applicant Mr. Chilundu- of Counsel for the Applicant Mr. Mwangonde- of Counsel for the Applicant Mr. Kalulu- of Counsel for the Respondent Mr. Chirwa- of Counsel for the Respondent Mr. Zakaria- Court Clerk and Official Interpreter JUDGMENT INTRODUCTION This matter arises from the termination of the Applicant’s employment as General Manager of Blantyre Sports Club. The Applicant, Mr. Auwen Mukwala, commenced these proceedings against Blantyre Sports Club alleging that the termination of his employment was unlawful and unfair. In his pleadings, the Applicant contends that the Respondent acted in breach of statutory labour protections and the terms of the employment relationship between the parties. He further alleges that the disciplinary process that culminated in his summary dismissal was flawed, that the findings against him were not justified, and that the Respondent’s conduct amounted to unfair labour practices. At all material times, the Applicant was employed by the Respondent in a senior managerial capacity as General Manager. The Respondent is a members’ sports club operating in Blantyre and was the Applicant’s employer. The employment relationship between the parties appears to have deteriorated in the course of 2024, culminating in the Applicant’s suspension on 9 th July 2024 pending investigations into allegations concerning his conduct and performance. Subsequently, by a letter dated 25th September 2024, the Applicant was notified to attend a disciplinary hearing scheduled for 3 rd October 2024, at which he was required to answer to charges of gross insubordination and gross negligence or dereliction of duty. Following that process, he was summarily dismissed by letter dated 12th December 2024. The Applicant challenges both the substance and the procedure of that dismissal. In relation to the allegation of insubordination, he maintains that he did not refuse to comply with any lawful instruction or act in a Page 2Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 disrespectful manner towards the Board Chair, but merely sought clarification regarding the terms of a contract presented to him. As regards the allegations of negligence, the Applicant contends that procurement processes and project decisions were undertaken within the structures of the Respondent and with the involvement of the Board, and that he acted in accordance with instructions given to him. He further disputes that his conduct occasioned the losses or deficiencies alleged by the Respondent. On that basis, he asserts that the decision to dismiss him was not supported by valid and fair reasons. The Respondent disputes the claim. It accepts that the Applicant was its employee and that his employment was terminated, but maintains that the dismissal was justified and lawful. The Respondent relies on the disciplinary proceedings and the findings of the disciplinary committee, which concluded that the Applicant was guilty of gross insubordination and gross negligence. It contends that the Applicant acted in a manner that undermined the authority of the Board and failed to adhere to established procurement and management procedures, thereby exposing the Club to financial loss and risk. The Respondent further maintains that the Applicant was accorded a fair hearing, was notified of the charges in advance, and was given an opportunity to respond, and that the requirements of procedural fairness were met. The issues that arise for determination are whether the dismissal of the Applicant was substantively justified, whether the disciplinary process complied with the requirements of procedural fairness under the applicable law, and whether the Applicant is entitled to the reliefs he seeks. These issues fall to be determined on the basis of the evidence placed before the Court, including the documentary exhibits and the record of the disciplinary proceedings, together with the relevant provisions of the law. Before addressing these issues in detail, the Court sets out the evidence presented by the parties. THE EVIDENCE The Applicant’s Testimony The Applicant testified as the sole witness in support of his case. He adopted his written witness statement as his evidence in chief and testified in accordance with its contents. He stated that he was employed by the Respondent on 24 th December 2019 as General Manager. In support of this, he tendered his employment contract marked as Exhibit AM1. He testified that under the contract he was initially employed on probation and thereafter continued under a fixed-term employment contract. He stated that at the time material to the dispute he was earning a monthly basic salary of MK2,020,268.25. He further testified that, in addition to his salary, he was entitled to other benefits, including housing allowance, use of an official motor vehicle, fuel allocation, medical aid under the MASM VIP scheme, cellphone allowance, Blantyre Sports Club gold family membership, and school fees for two of his biological children up to A-level or high school. He testified that on 4th July 2024 the Respondent held an Extraordinary General Meeting. He stated that one of the matters discussed at that meeting was his employment status with the Respondent. According to him, during the meeting, the Board Chairperson directed him to leave the meeting so that the issue of his employment could be discussed freely in his absence. He stated that after he left the meeting, he later understood from the minutes and from what followed that a resolution had been made for his removal. In support of this part of his case, he tendered what he described as minutes of the Extraordinary General Meeting, marked as Exhibit AM2. He testified that the decision to terminate his employment was made without hearing him and without giving him any valid reason. He stated that after the meeting, he was orally directed to surrender the Respondent’s property in his custody, including the official laptop and official motor vehicle, and was told not to return to the Respondent’s premises. He tendered handover notes marked as Exhibit AM3. He stated that after he questioned the manner in which his employment had been terminated, the Respondent issued him with a Page 3Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 suspension letter dated 9th July 2024. He tendered the suspension letter as Exhibit AM4. His evidence was that the suspension was not a genuine preliminary step, but was intended to formalise a dismissal which had already been decided at the Extraordinary General Meeting. He further testified that, despite the suspension letter stating that he would remain on full salary and benefits, not all his employment benefits were restored to him. He stated that the Respondent later wrote to him on 10 July 2024 allowing him to retain the official motor vehicle during suspension. He tendered that letter as Exhibit AM5. He testified that on 25 th September 2024 he received a notice inviting him to attend a disciplinary hearing scheduled for 3 rd October 2024. The charges were gross insubordination and gross negligence. He tendered the notice of disciplinary hearing as Exhibit AM6. He testified that the disciplinary hearing did not proceed in the ordinary manner. According to him, the Respondent repeatedly changed the date and time of the hearing without consulting him. He stated that the hearing was eventually conducted on 7 th October 2024 at about 22:00 hours. He testified that during the hearing he denied all the allegations levelled against him. He maintained that he had not been insubordinate and that he had not acted negligently in the performance of his duties. He stated that after the hearing the Respondent delayed communicating the outcome and that he had to follow up through his lawyers. In support of this, he tendered a letter from his lawyers dated 25th November 2024, marked as Exhibit AM7. He testified that on 12 th December 2024, about two months after the disciplinary hearing, the Respondent issued him with a letter of summary dismissal. He tendered that letter as Exhibit AM8. He stated that the letter indicated that he had been found guilty of insubordination and gross negligence. He disputed those findings and testified that there had been no evidence before the disciplinary panel showing that he was guilty of either charge. He stated that the disciplinary hearing was a sham and was merely used to give effect to a decision which, in his view, had already been made at the Extraordinary General Meeting of 4th July 2024. He further testified that from the time he joined the Respondent, he had never been cautioned for negligence or insubordination. He stated that he had worked diligently for the Respondent for about five years and that he was shocked by the decision to summarily dismiss him. He maintained that he had served the Respondent with due diligence and that the allegations of gross insubordination and gross negligence were not supported by proper evidence. He testified that the dismissal was too harsh in the circumstances and that the Respondent did not treat him with fairness and equity. He also testified on the remedies he was claiming. He stated that since he did not contribute to his dismissal, he was entitled to severance allowance and notice pay. He further stated that under his contract he was entitled to gratuity, which he said had not been paid at the time of dismissal. He also testified that he had accrued 32.9 leave days which had not been paid at the time of his dismissal. On that basis, he claimed compensation for unfair dismissal, compensation for unfair labour practices, severance allowance with interest, notice pay with interest, gratuity with interest, and payment in lieu of accrued leave days. Under cross examination, he confirmed that his employment contract was a fixed-term contract and that it expired in December 2022. He accepted that after the expiry of that contract, he did not have written communication from the Respondent expressly confirming the status of his employment contract. His evidence, however, was that since the Respondent did not offer him another contract and he continued working, he understood the contract to have been renewed automatically. He was referred to paragraph 4 of his witness statement and confirmed the benefits he claimed, including housing allowance, motor vehicle, fuel, medical aid, school fees, and other non-remunerative benefits. On the Extraordinary General Meeting, the Applicant testified under cross examination that he could not confirm whether the meeting was called at the behest of members. He accepted that one of the issues being Page 4Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 discussed was the contract under which he was operating. He confirmed that he was not present when the resolution concerning his employment was passed and that he did not personally witness the making of that resolution. He explained that he had been taking minutes of the meeting and that when he went out, he delegated the taking of minutes to another person. He stated that he later resumed the task of preparing the minutes. He was cross examined on Exhibit AM2. He accepted that minutes of an Extraordinary General Meeting ought to be prepared, circulated, and signed by the body concerned. He further accepted that Exhibit AM2 was not signed by the body. He testified that the notes were taken by Isaac Kalumba after he had instructed him to take the minutes during his absence. He stated that he prepared the minutes and shared them with the relevant body. He accepted that he had not brought the original copy of the minutes and that the copy tendered was not certified. He nevertheless maintained that the document bore a signature and that it was a true copy. He also accepted that the last page of the minutes referred to the removal of the General Manager. He was also cross examined on the events following the Extraordinary General Meeting. He accepted that he was subjected to a disciplinary hearing before he was issued with the letter of dismissal. He was referred to Exhibit AM3 and confirmed that the document reflected 9 th July 2024, which was also the date on which he received the suspension letter. He testified that the property was not surrendered before that date. He was further referred to paragraph 12 of his witness statement and stated that he could not confirm whether members of the disciplinary hearing panel had been part of the Extraordinary General Meeting, because there were many people present at that meeting. He was also referred to Exhibits IK6 and IK9. He confirmed that Sophie Mlumbe attended the disciplinary hearing as a director. He maintained, however, that the members were not present at the later disciplinary hearing. He also maintained that he had prepared the minutes of the Extraordinary General Meeting and continued to insist that the events following that meeting showed that the decision to remove him had already been made before the disciplinary process was conducted. There was no re-examination. The Respondent’s Testimony Mr Isaac Kalumba testified for the Respondent. He adopted his written witness statement as his evidence in chief and testified in accordance with its contents. He stated that he was the Accountant for the Respondent and that he had worked for the Respondent at all material times, from the period when the Applicant was recruited up to the time his employment was terminated. He described the Respondent as a membership-based social club governed by a Board of Directors elected by and from among its members. He stated that the Respondent operates a club in Blantyre with a restaurant, bar, gym, golf course, swimming pool, football field and other sports facilities. He testified that the Applicant was employed by the Respondent in December 2019 under a written contract of employment. The contract, according to his evidence, was for a fixed term of three years. He stated that under that contract the Applicant was entitled to a monthly basic salary of MK1,300,000.00, which had increased to MK2,020,268.25 by the time the employment relationship came to an end. He also stated that the Applicant enjoyed non-remunerative benefits, including use of a motor vehicle, housing allowance, medical aid, school fees for two biological children, fuel allocation, telephone allowance and gold family club membership. He further testified that when the original three-year contract was about to expire in December 2022, the then Board resolved not to renew it. He referred to email correspondence concerning the expiry of the General Manager’s contract, a round robin resolution not to extend the contract, and communication made to the Applicant, which were tendered as Exhibits IK1, IK2 and IK3. He stated that after a change of the Board, a new Board led by the late Edward Kauka reversed the earlier decision and resolved to retain the Applicant on a Page 5Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 one-year contract. He tendered the letter reversing the earlier decision and extending the contract as Exhibit IK4. His evidence was that key performance indicators were to be prepared and incorporated into a new contract. He testified that after the lapse of the further one-year period, the Board decided to extend the Applicant’s contract for another year. He stated that a contract was prepared after key performance indicators had been drawn. According to him, the Board Chairperson, Mr Arthur Matekenya, personally went to the Applicant’s office on or about 18th March 2024 to deliver the contract renewal letter and the draft contract. His evidence was that the Applicant refused to sign the contract and ordered the Chairperson to leave his office. He stated that the contract was later sent to the Applicant by email, but the Applicant did not respond. He testified that around the same period, members of the Club directed the Board to hold an Extraordinary General Meeting to discuss various matters relating to the operations of the Club, including the status of the Applicant’s employment. He tendered the notice and agenda of the meeting as Exhibit IK5. He stated that the meeting was initially set for 13 th June 2024 but was eventually held on 4 th July 2024. According to him, the matters discussed at the meeting included the Applicant’s performance and the impasse concerning his contract. He also stated that the Board Chairperson narrated to the meeting what had allegedly transpired between him and the Applicant when he went to deliver the contract documents. He tendered the minutes of the Extraordinary General Meeting as Exhibit IK6. He testified that after the meeting, the Board Chairperson suspended the Applicant from employment on account of the performance and conduct matters raised at the Extraordinary General Meeting, pending a full investigation. He tendered the suspension letter as Exhibit IK7. He further stated that the Applicant was later invited to a disciplinary hearing to answer charges of gross insubordination and gross negligence or dereliction of duty. He tendered the notice of disciplinary hearing as Exhibit IK8. According to his evidence, the disciplinary panel comprised Misheck Esau, Sophie Mlumbe and Willy Nkhoma. On the charge of insubordination, he testified that Mr Arthur Matekenya appeared before the disciplinary panel and gave evidence on what had allegedly occurred when he went to deliver the Applicant’s contract extension documents. He stated that Mr Matekenya told the disciplinary panel that the Applicant ordered him out of his office and told him to consult the Remuneration Committee. On the charge of gross negligence or dereliction of duty, he testified that he personally gave evidence before the disciplinary panel. He stated that, as Club Accountant, he was not involved in the costing of two food supply contracts relating to Malawi College of Accountancy and PUMA. He stated that meals supplied to Malawi College of Accountancy were sold at MK2,500.00 each, which he considered to be at a loss when compared with meals sold at the Club’s restaurant. He further testified that he was not sure whether the PUMA contract was profitable. He also testified that the Applicant was asked to answer issues relating to two construction projects, namely bridge works and the extension of the gym. His evidence was that the Applicant admitted that he had not prepared contractor evaluation reports before advising the Board that quotations had been received. He also stated that the Applicant could not produce the quotations relating to the two works. He testified that after considering the evidence, the disciplinary panel found the Applicant guilty of gross insubordination and gross negligence or dereliction of duty. He tendered the report of the disciplinary hearing as Exhibit IK9. He further testified that on 12th December 2024 the Applicant was summarily dismissed on the basis of the findings of the disciplinary panel, and he tendered the dismissal letter as Exhibit IK10. He testified that the Applicant was later paid gratuity through his lawyers, Micklaw and Company. He tendered the letter and acknowledgement relating to the payment as Exhibit IK11. His overall evidence was that the Applicant had first served under a three-year fixed-term contract, that his employment continued after Page 6Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 the expiry of that contract, and that his eventual dismissal followed a disciplinary hearing at which evidence was led in support of the charges. Under cross examination, he confirmed that the Applicant had a contract running up to December 2022. He stated that he did not know whether the Applicant was given a new contract after the expiry of the first contract and accepted that the Respondent had not brought such a contract before the Court. He confirmed that the Applicant continued working after December 2022 and that he was dismissed in 2024, close to two years after the expiry of the first contract. He also confirmed that the gratuity which the Respondent paid was based on the 2022 contract. He was further cross examined on the convening of the Extraordinary General Meeting. He confirmed that there was a notice calling for the meeting, but accepted that the Respondent had not produced evidence showing that members forced the Board to call the meeting. He confirmed that the Applicant’s tenure was discussed openly at the meeting and that the Applicant was told to leave the meeting when his tenure was being discussed. He also confirmed that the Board Chairperson expressed displeasure over the manner in which the Applicant had allegedly treated him. He accepted that the Chairperson was present at the meeting, although he was not chairing it. He further accepted that the meeting resolved that the General Manager be removed, and that a former Chairperson expressed surprise that the Applicant was still working when his contract had expired. He was questioned on events after the Extraordinary General Meeting. He confirmed that he received a letter from the Applicant’s lawyers shortly after the suspension. He described it as the letter in which the Applicant, through his lawyers, made a demand of MK300 million. On the issue of the official motor vehicle, he stated that the vehicle was not returned because of that letter. He explained that the Chairperson was surprised because the Applicant had left with the vehicle while still in employment. He was then cross examined on the disciplinary process. He confirmed that Mr Matekenya constituted the disciplinary hearing panel. He stated that the decision on who was to sit on the panel came from the Board. He confirmed that Mr Matekenya was the Board Chairperson. He stated that he did not know who invited Mr Esau to chair the disciplinary hearing panel, and said that the Chairperson would be the person expected to know. He also stated that he attended the disciplinary hearing as part of management. When questioned about whether the Respondent had a code of conduct governing the disciplinary process, he accepted that no such code had been produced before the Court. He stated that he could not confirm whether the appointment of the person to lead the disciplinary panel lay with the Chairperson. He also stated that he did not know whether there was any code that allowed a third party to sit on a disciplinary panel. He further stated that he was not aware that the other persons involved in the disciplinary process had chosen not to testify in the matter. When asked about the arrangement that led to the members of the disciplinary panel sitting, he said that he did not know the arrangement. He accepted that once a disciplinary committee makes its findings, it reports back to the Board for a decision. He also accepted that the Respondent had not attached a Board resolution dismissing the Applicant. He further confirmed that Sophie Mlumbe, who sat on the disciplinary panel, was also the person who signed the dismissal letter. He accepted that there was bad blood between the Board and the Applicant. He confirmed that the disciplinary hearing report itself referred to a poor working relationship between the Board and the General Manager, including concerns that some Board members were working with junior staff. He accepted that the Applicant was charged with insubordination relating to the Chairperson. He admitted that he did not personally witness the interaction between the Applicant and the Chairperson. He also stated that he would not know, from his own knowledge, what evidence was considered on that issue beyond what was recorded in the disciplinary Page 7Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 process. He accepted that Boniface Chima was recorded as the complainant, but said that he did not know what he said because the minutes did not indicate it. On the allegations of gross negligence, he accepted that there was no policy on food rations. He confirmed that there was a Food and Beverages Manager with whom the Applicant worked in relation to costing. He also accepted that there was no policy requiring the Applicant to work with him, as Accountant, when preparing such costing. He was also questioned about the bridge issue and stated that he did not know certain details relating to it. He confirmed that at the time the Applicant was dismissed there was bad blood between the Chairperson and the Applicant. He also confirmed that the gratuity paid in March 2026 related to the period after the expiry of the first contract. He accepted that the Applicant was dismissed in December 2024 and received the gratuity in March 2026. He further confirmed that the Applicant did not receive notice pay. He stated that the resolution for the Applicant’s removal was made by the members and that the decision to remove him came after that resolution. In re examination, he stated that Mr Kantwanje raised the issue of the Applicant’s contract and the issue of the official motor vehicle during the Extraordinary General Meeting. He also stated that Mr Arthur Matekenya raised issues in his opening remarks at that meeting. He testified that this was how he came to know that there was bad blood between the Board Chairperson and the Applicant. THE LAW AND APPLICABLE LEGAL PRINCIPLES The determination of dismissal disputes is anchored in section 31 of the Constitution, which guarantees the right to fair and safe labour practices and fair remuneration, and in the Employment Act. Under section 57(1) of the Employment Act, employment may not be terminated unless there is a valid reason connected with the employee’s capacity or conduct, or based on the employer’s operational requirements. Section 58 provides that a dismissal is unfair if it does not comply with section 57. Once dismissal is established, section 61 places the burden on the employer to provide the reason for dismissal and to show that, in all the circumstances, it acted with justice and equity. Substantive fairness requires proof of a valid reason for dismissal. The employer must prove the reason relied upon on a balance of probabilities, the standard explained in Miller v Minister of Pensions [1947] 2 All ER 372. The ordinary rule that a party who asserts a fact must prove it is reflected in Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154 and Chipilro Banda v Southern Bottlers Ltd [2012] MLR 53 (HC). In cases of alleged misconduct, suspicion, strained relations or loss of confidence will not be enough. The employer must prove the particular misconduct relied upon, even where summary dismissal is invoked under section 59 of the Employment Act. The Court must further consider whether dismissal was a fair and proportionate sanction. In Sugar Corporation of Malawi v Ron Manda [2007] MLR 389 (SCA), the Supreme Court held that section 61(2) imports equity into employment law, so that an employee is not dismissed for a matter for which a lesser sanction may fairly have sufficed. Procedural fairness concerns the process followed before dismissal. Section 57(2) of the Employment Act requires that an employee be given an opportunity to defend himself against allegations connected with capacity or conduct, unless the employer cannot reasonably be expected to provide that opportunity. This reflects the rule of natural justice that a person should not be condemned unheard, as affirmed in In the Matter of the Constitution of the Republic of Malawi and In the Matter of the Removal of MacWilliam Lunguzi [1994] MLR 72. The employee must know the case he has to meet and must be given a fair opportunity to answer it, as stated in Chakhaza v Portland Cement Co. Ltd [2008] MLR 118, citing Kanda v Government of Malaya Page 8Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 [1962] AC 322. Where fairness requires an oral hearing, the right to be heard may include the right to challenge adverse evidence, as recognised in Khoswe v National Bank of Malawi , Civil Cause No. 718 of 2002, [2004] MWHC 49 (25 August 2004). The Court must not treat the matter as a complete rehearing of the employer’s internal disciplinary process. In Msiska v The Times Group, MSCA Civil Appeal No. 15 of 2020, [2022] MWSC 11 (13 October 2022), the Supreme Court confirmed that the Industrial Relations Court may consider the disciplinary record in deciding what was before the employer at the time. Still, the statutory burden remains on the employer to prove both substantive and procedural fairness. If unfair dismissal is established, section 63 of the Employment Act empowers the Court to grant reinstatement, re-engagement or compensation. Claims for severance allowance, notice pay, leave pay, gratuity, interest and any alleged unfair labour practice must be determined on the Act, the contract and the evidence, while avoiding double compensation for the same injury. DETERMINATION The dispute before the Court concerns the termination of the Applicant’s employment as General Manager of the Respondent. Although the dismissal letter states that he was summarily dismissed for insubordination and gross negligence, the evidence shows that the disciplinary process was preceded by an Extraordinary General Meeting held on 4th July 2024, at which his contract, tenure, performance and relationship with the Board were discussed. The Applicant contends that the real decision to remove him was made at that meeting and that the later suspension and disciplinary hearing were only meant to formalise that decision. The Respondent denies this and maintains that the meeting merely triggered investigations which led to a proper disciplinary process. The Court must therefore determine whether the Respondent proved valid reasons for dismissal and whether the process followed met the standard of fairness required by law. This requires consideration of the two charges relied upon by the Respondent, namely gross insubordination arising from the alleged encounter between the Applicant and the Board Chairperson, and gross negligence or dereliction of duty in relation to procurement, Club projects, and food supply contracts. It also requires the Court to consider whether the disciplinary panel was impartial, whether the Applicant was given a genuine opportunity to defend himself, and what weight should be given to the Respondent’s failure to call some persons with direct knowledge of the material events. If the dismissal is found to be unfair, the Court must then consider the remedies sought. These include compensation for unfair dismissal, compensation for unfair labour practices, severance allowance, notice pay, gratuity, leave pay and interest. The Court must also consider the Respondent’s position that some claims are either already satisfied, duplicated, or not legally sustainable. The Court now turns to the evidence and the applicable law in order to resolve these issues. Whether the Dismissal was Substantively Fair The first issue for determination is whether the Respondent had valid reasons for dismissing the Applicant. This issue concerns substantive fairness. At this stage, the Court is concerned with the reasons relied upon by the Respondent for the dismissal, whether those reasons were proved on a balance of probabilities, and whether they were sufficiently serious to justify termination of employment, more particularly summary dismissal. The question is not whether the Respondent was dissatisfied with the Applicant, nor whether the working relationship between the Applicant and the Board had become strained. The question is whether the Respondent proved the particular misconduct relied upon in the dismissal letter and whether that misconduct constituted a valid reason for dismissal under the Employment Act. Page 9Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 Section 57(1) of the Employment Act provides that employment shall not be terminated unless there is a valid reason connected with the employee’s capacity or conduct, or based on the operational requirements of the undertaking. Section 58 provides that a dismissal is unfair if it does not comply with section 57. Section 61(1) places the burden on the employer to provide the reason for dismissal, while section 61(2) further requires the employer to show that, in all the circumstances of the case, it acted with justice and equity in dismissing the employee. The statutory position is therefore plain. Once dismissal is established, the employer must prove the reason relied upon. It is not enough for the employer to make allegations, rely on suspicion, or point to general concerns about the employee. Both parties accepted that the standard of proof is the civil standard. The Applicant relied on Miller v Minister of Pensions [1947] 2 All ER 372, where it was stated that a fact is proved if the tribunal can say that it is more probable than not. The Respondent also relied on the civil standard and cited Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1942] AC 154 and Chipilro Banda v Southern Bottlers Ltd [2012] MLR 53 (HC) on the ordinary rule that a party who asserts a fact must prove it. The Court accepts these principles. In a dismissal dispute, however, the Employment Act places the statutory burden of proving the reason for dismissal on the employer. It follows that although the Applicant challenges the dismissal, the Respondent bears the burden of proving the misconduct relied upon. The Respondent’s dismissal letter, Exhibit AM8, also produced by the Respondent as Exhibit IK10, is the proper starting point. It states that the Applicant was dismissed after being found guilty of two offences, namely insubordination and gross negligence. The notice of disciplinary hearing, Exhibit AM6, also produced as Exhibit IK8, set out the particulars of those two charges. The first charge concerned alleged gross insubordination arising from the Applicant’s alleged refusal to receive a contract renewal letter from the Board Chairperson. The second charge concerned alleged gross negligence or dereliction of duty in relation to procurement, the bridge and gym projects, and the MCA and PUMA food supply contracts. The Court must therefore examine the dismissal against these two reasons. Counsel for the Respondent argued that the dismissal was substantively fair because the disciplinary hearing report, Exhibit IK9, shows that evidence was led before the disciplinary panel and that the panel found the Applicant guilty. Counsel relied on Mvula v Norse International Ltd 15 MLR 331 and Granger Nkhwazi v Commercial Bank of Malawi, Civil Cause No. 233 of 1999 (HC) for the proposition that an employer must establish the factual basis of disciplinary charges. Counsel further relied on Msiska v The Times Group, MSCA Civil Appeal No. 15 of 2020, [2022] MWSC 11 (13 October 2022), and submitted that the Industrial Relations Court does not sit to conduct a full rehearing of the internal disciplinary process and that an employer is not required, in every case, to recall before the Court all witnesses who testified at the disciplinary hearing. Counsel also relied on Bwila v Le Meridien Hotels, Civil Appeal No. 107 of 2007, [2008] MWHC 46 (12 February 2008), for the submission that where contradictory accounts were given before the disciplinary panel, it was for that panel to decide which version to believe. Counsel for the Applicant took the contrary position. Counsel submitted that the reasons of insubordination and gross negligence were neither genuine nor proved. The Applicant’s case was that the decision to remove him had already been made at the Extraordinary General Meeting of 4th July 2024, as reflected in Exhibit AM2 and Exhibit IK6, and that the later suspension and disciplinary hearing were merely used to give effect to a decision already taken. Counsel further submitted that the Respondent failed to call material witnesses, in particular Mr Arthur Matekenya, whose evidence was central to the charge of insubordination. Reliance was placed on Maonga v Blantyre Printing and Packaging Co. Ltd [1991] 14 MLR 240 (HC) and Limbe Leaf Tobacco v Chikwawa and Others [1996] MLR 480 (SCA) , for the proposition that failure to call material evidence may damage a party’s case and may justify an adverse inference. Page 10Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 The Court accepts that Msiska v The Times Group, MSCA Civil Appeal No. 15 of 2020, [2022] MWSC 11 (13 October 2022) is authority for the proposition that the employer’s obligation to provide reasons arises in the disciplinary process and that the Court does not automatically repeat the employer’s hearing as if sitting as the disciplinary panel. That authority is not a licence for the Court to accept disciplinary findings without scrutiny. The Employment Act still requires the employer to prove that there was a valid reason for dismissal. The disciplinary record may assist the employer. But where the record is thin, where the factual allegation is disputed, and where material witnesses are not called without explanation, the Court is entitled to find that the employer has not discharged its statutory burden. The issue of the contract and its relevance to the dismissal The contractual background must first be addressed because it formed part of the setting in which the dismissal occurred. Exhibit AM1 shows that the Applicant was employed under a written contract commencing on 24th December 2019. It was a fixed-term contract of three years. It is common cause that the initial contract expired in December 2022. The Respondent relied on Exhibits IK1, IK2 and IK3 to show that the previous Board had resolved not to renew the contract and had communicated that position to the Applicant. The Respondent further relied on Exhibit IK4 to show that a later Board reversed that decision and extended the Applicant’s contract for one year, with key performance indicators to be developed. The Respondent submitted that after the lapse of that further period, the Applicant’s contract was tacitly renewed for another one-year period ending in December 2024. Counsel relied on section 28(2) of the Employment Act and cited Standard Bank of South Africa Ltd v Ocean Commodities Inc 1983 (1) SA 276 (A) and Saint John Tug Boat Co. Ltd v Irving Refining Ltd [1964] SCR 614, for the proposition that a fixed-term contract may be tacitly renewed where the employee continues working and the employer continues accepting and paying for the service. The Applicant, on the other hand, testified that since he continued working after expiry of the initial contract, he understood the contract to have continued automatically, although he accepted under cross examination that he had no written communication confirming that position. For purposes of this issue, the Court need not make a final and detailed finding on the precise length of the tacitly renewed contract. What matters is that by December 2024 the Respondent itself treated the Applicant as its employee. It suspended him by Exhibit AM4, also produced as Exhibit IK7. It invited him to a disciplinary hearing by Exhibit AM6, also produced as Exhibit IK8. It dismissed him by Exhibit AM8, also produced as Exhibit IK10. It later paid gratuity through Exhibit IK11. The employment relationship therefore subsisted when the Respondent dismissed the Applicant. The Respondent was bound to dismiss him only for a valid reason recognised by law. The contract issue remains relevant in another respect. It was one of the matters discussed at the EGM of 4 th July 2024. Exhibit IK6 records that members queried why the Applicant was still working and under what contract he was operating. Mr Kalumba confirmed under cross examination that the Applicant was asked to leave the meeting when his tenure was being discussed. He further confirmed that the meeting resolved that the General Manager be removed. This background assists the Court in assessing whether the later reasons of insubordination and gross negligence were genuine and independently proved. Gross insubordination The first stated reason for dismissal was gross insubordination. Exhibit AM6, also Exhibit IK8, alleged that the Applicant challenged the authority of the Chairperson or the Board and failed or refused to obey a reasonable and lawful instruction relating to receipt of his contract renewal letter. The charge further alleged that the Applicant acted disrespectfully by unceremoniously ordering the Chairperson, who had come to deliver the letter, to leave his office and to seek advice from the Remuneration Committee. Page 11Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 Counsel for the Respondent submitted that insubordination is a serious disciplinary offence and may justify summary dismissal. Counsel relied on Magalasi v National Bank of Malawi Limited (2008) MLLR 45 (SCA), where insubordination was treated as capable of justifying dismissal. Counsel also relied on Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 2 All ER 597 , for the proposition that the employment relationship is founded on mutual trust and confidence. The submission was that a General Manager who disrespects the Board Chairperson undermines the authority structure of the employer and destroys the trust necessary for continued employment. The Court accepts the legal proposition that gross insubordination may justify summary dismissal. A senior employee is under a duty to respect lawful authority. The General Manager of a club governed by a Board must work under the authority of that Board. Conduct amounting to wilful defiance of lawful authority may be inconsistent with continued employment. However, the issue is not whether gross insubordination can justify dismissal in law. The issue is whether gross insubordination was proved on the facts of this case. The evidence on this charge rested on the alleged encounter between the Applicant and Mr Arthur Matekenya. Mr Matekenya was the Board Chairperson who allegedly took the contract renewal documents to the Applicant. He was the person allegedly ordered out of the office. He was the direct witness to the incident. Yet he did not testify before this Court. The Respondent instead called Mr Kalumba, who accepted under cross examination that he did not witness the interaction between the Applicant and the Chairperson. His evidence on this charge was therefore not evidence of what he personally saw or heard. The Respondent sought to meet this difficulty by relying on Exhibit IK9, the disciplinary hearing report. That report records that Mr Matekenya appeared before the disciplinary panel and stated that the Applicant refused to collect the contract and asked him to leave the office. Exhibit IK9 also records that the Applicant denied the allegation and stated that he merely queried why the proposed contract was backdated to November 2023. The disciplinary committee accepted Mr Matekenya’s version and found that the Applicant handled the meeting with the Board Chairperson disrespectfully. The Court has considered Exhibit IK9 carefully. It is evidence that such a version was presented at the disciplinary hearing. It is not, by itself, conclusive proof before this Court that the incident occurred in the manner alleged. The report does not record the exact words used by the Applicant. It does not record the precise instruction given by Mr Matekenya. It does not explain whether the Applicant refused to sign the proposed contract, refused merely to receive it, or objected to its contents. It does not show whether the Applicant’s reference to the Remuneration Committee was defiance of authority or a request that the committee responsible for such matters should deal with his contractual terms. These details matter because the charge was gross insubordination, not mere disagreement or inconvenience. The Applicant’s explanation was not inherently unreasonable. The evidence shows that there had been uncertainty over his contract. Exhibits IK1 to IK4 show a history of non-renewal, reversal, extension and contemplated key performance indicators. In that setting, the Applicant was entitled to ask questions about a proposed contract, especially if it was backdated. The Court does not suggest that he was entitled to be rude to the Chairperson. He was not. But the Respondent bore the burden of proving the alleged rudeness and defiance. It did not do so through direct evidence. The failure to call Mr Matekenya is significant. The Applicant’s Counsel was correct to rely on Maonga v Blantyre Printing and Packaging Co. Ltd [1991] 14 MLR 240 (HC). The principle from that case is that where a material witness who is naturally expected to testify is not called, the Court may presume that his evidence would not have assisted the party who failed to call him. That principle must be applied with caution and not Page 12Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 mechanically. Here, however, the charge of insubordination was built around Mr Matekenya. No satisfactory explanation was given for his absence. The omission leaves a material gap in the Respondent’s case. The Respondent’s reliance on Bwila v Le Meridien Hotels, Civil Appeal No. 107 of 2007, [2008] MWHC 46 (12 February 2008) does not cure this difficulty. A disciplinary panel may, in a proper case, choose between competing versions. But the Court must still be satisfied that the employer has proved a valid reason for dismissal. Where the only direct accuser is not called before the Court, and where the disciplinary record contains limited detail on the alleged misconduct, the Court is not bound to accept the internal finding. The Court therefore finds that the Respondent failed to prove gross insubordination on a balance of probabilities. The evidence shows that there was a strained relationship between the Applicant and the Chairperson and that there was a dispute over the Applicant’s contract. It does not prove that the Applicant wilfully disobeyed a lawful instruction or acted in a manner amounting to gross insubordination. Gross negligence or dereliction of duty relating to the bridge and gym projects The second reason advanced in Exhibit AM8, also Exhibit IK10, was gross negligence. The particulars of the charge were set out in Exhibit AM6, also Exhibit IK8. The Respondent alleged that the Applicant disregarded established procurement processes, leading to loss or mismanagement of funds, substandard workmanship and delays in completion of projects. The projects specifically mentioned were the construction of bridges across the Mudi River and the extension of the gym. Counsel for the Respondent submitted that the Applicant was a senior manager and had an implied duty to exercise skill, competence and due care. Counsel relied on Hahn v Spearhead Holdings Ltd 13 MLR 143 . Counsel also relied on section 59 of the Employment Act, which allows summary dismissal for serious misconduct, substantial neglect of duty, lack of skill, wilful disobedience and related grounds. Further reliance was placed on Chapulumuka v Limbe Leaf Tobacco Company Limited, Civil Cause No. 425 of 2013, [2018] MWHC 1073 (31 July 2018) and Wasili v Clan Transport Ltd, Civil Cause No. 506 of 1981 (unreported), for the proposition that conduct incompatible with the faithful discharge of duty may justify dismissal. The Court accepts the principle advanced by the Respondent. A General Manager owes a high duty of care to the employer. Even without a written procurement policy, he must act prudently, protect the employer’s resources, keep proper records and avoid reckless or careless management. The absence of a written policy does not give a senior manager licence to act negligently. The real question, however, is whether the Respondent proved that the Applicant acted with gross negligence in the manner alleged. Counsel for the Applicant submitted that the Respondent failed to prove this charge because no procurement policy was produced before the Court and because Mr Kalumba admitted that he was not the right witness on several matters. Counsel further argued that the Respondent did not call persons with direct knowledge of the procurement decisions, including the Chairperson and Board members involved in the projects. The Applicant’s case was that the procurement and project decisions were not taken by him alone but involved Board structures. The Court agrees that the absence of the procurement policy is material. Exhibit AM6, also Exhibit IK8, alleged that the Applicant disregarded “established procurement processes.” If the employer alleges breach of an established process, the Court expects the employer to prove what that process was. Mr Kalumba admitted under cross examination that no procurement policy was produced. Exhibit IK6 itself shows that procurement policy was one of the matters troubling the Club at the EGM. It was reported that procurement policy was not in place, although one former Chairperson stated that a policy had previously existed. It was also said that the Page 13Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 policy had gone missing after the procurement officer resigned. This evidence does not support a clear finding that there was an established procurement process which the Applicant knowingly disregarded. Exhibit IK9 records that the Applicant was asked about the bridge and gym projects and that he admitted he did not conduct contractor evaluation reports on the quotations. It also records that he could not reproduce quotations for the two works. This evidence is unfavourable to the Applicant. A General Manager should ordinarily be able to account for procurement records in relation to major projects. The Court does not minimise that weakness. It may show poor record keeping or managerial weakness. The question, however, is whether it proved gross negligence sufficient to justify summary dismissal. The evidence did not clearly show that the Applicant alone selected the contractors or alone authorised the impugned projects. The material before the Court suggested involvement by Board members and committees. In relation to the gym project, the evidence showed that a former Chairperson negotiated the contract price downwards. In relation to the bridges, the evidence suggested that the Board was involved and that at least some decisions were not made by the Applicant alone. The Respondent did not call the former Chairperson, relevant Board committee members, contractors, or any technical witness. No engineer’s report was produced. No procurement file was produced. No contractor evaluation document was produced. No Board resolution showing the Applicant’s personal responsibility was produced. The Applicant relied on Limbe Leaf Tobacco v Chikwawa and Others [1996] MLR 480 (SCA) and Maonga v Blantyre Printing and Packaging Co. Ltd [1991] 14 MLR 240 (HC). The Court accepts that where documentary evidence or witnesses are naturally expected to be produced and are not produced, the Court may draw an inference adverse to the party bearing the burden. In this case, the Respondent alleged serious project mismanagement but did not place before the Court the primary procurement and technical material necessary to connect the alleged failures to the Applicant’s personal culpability. The Court does not find that the bridge and gym projects were properly handled. The evidence suggests that there were governance and project management failures. The Court also accepts that the Applicant, as General Manager, may bear some managerial responsibility for poor record keeping and weak controls. However, the statutory question is narrower. Did the Respondent prove gross negligence or dereliction of duty by the Applicant as a valid reason for summary dismissal? On the evidence, it did not. The Respondent proved concern, dissatisfaction and weak controls. It did not prove the Applicant’s personal culpability to the required standard. Gross negligence or dereliction of duty relating to MCA and PUMA food supply contracts The second limb of the gross negligence charge concerned the MCA and PUMA food supply contracts. Exhibit AM6, also Exhibit IK8, alleged that between September 2023 and April 2024 the Applicant informed the Board that the Club had been awarded two outside supply contracts to supply meals to PUMA employees and Malawi College of Accountancy students. The charge alleged that the prices were too low, resulting in loss, and that the PUMA contract had no exit clause or price escalation clause and had not been discussed with the Board or the Club’s lawyers. Counsel for the Respondent submitted that this charge was proved. Counsel argued that Mr Kalumba testified that meals at MCA were sold at MK2,500.00, which was at a loss compared with meals sold at the Club restaurant. Counsel further submitted that the Applicant himself accepted before the disciplinary panel that MCA rations were being sold at a loss. In relation to PUMA, Counsel argued that the absence of proper clauses and legal review exposed the Club to risk. Counsel submitted that, as General Manager, the Applicant was under a duty to act with competence and due care, whether or not a written food ration pricing policy existed. Page 14Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 Counsel for the Applicant argued that this charge was not proved because the Respondent produced no food ration policy, no costing policy, no costing sheets and no documentary proof of the alleged loss. Counsel further relied on Mr Kalumba’s admission that there was a Food and Beverages Manager who worked with the Applicant on costing and that there was no policy requiring the Applicant to work with Mr Kalumba as Accountant when doing such costing. The Court accepts that the evidence concerning MCA raises a legitimate concern. Exhibit IK9 records that Mr Kalumba told the disciplinary panel that MCA meals were sold at MK2,500.00 and that this was loss-making. It also records the Applicant as saying that the MCA rations were being sold at a loss but that the loss would be recovered when school opened and sales increased. However, an initial or temporary loss in a commercial arrangement is not, without more, gross negligence. The Court would need to know the costing, expected volumes, commercial rationale, and who approved or participated in the pricing before concluding that the Applicant was guilty of gross negligence. The Respondent did not produce costing sheets, invoices, food cost analyses, profit and loss computations, or any financial record showing the actual loss. It did not call the Food and Beverages Manager or the Chef who allegedly worked on the costing. Mr Kalumba accepted that there was no policy on food ration pricing. He also accepted that there was no policy requiring the Applicant to work with him as Accountant when doing the costing. These admissions are important. The charge was framed as negligence in costing and contract management, but the evidence did not establish the applicable standard, the actual breach, or the degree of personal responsibility attributable to the Applicant. The PUMA allegation was weaker still. Mr Kalumba’s evidence was that he was not sure whether the PUMA contract was profitable. That uncertainty cannot establish gross negligence. The Respondent alleged that the PUMA contract had no exit clause or price escalation clause, but did not produce the contract. Without the contract, the Court cannot verify the allegation. No Board member or lawyer testified that the Applicant was required to obtain Board or legal clearance before signing the contract. No policy requiring legal vetting was produced. The Court cannot find gross negligence on the basis of an unproduced contract and uncertain evidence of loss. The Court accepts the Respondent’s argument that a senior manager may be disciplined for reckless commercial conduct even in the absence of a written policy. But the evidence must still show recklessness, substantial neglect, or conduct falling materially below the standard expected of a General Manager. In the present case, the evidence did not go beyond showing that the MCA pricing may have been commercially questionable and that there were concerns about the PUMA contract. That falls short of proving gross negligence or dereliction of duty justifying summary dismissal. The Court therefore finds that the Respondent did not prove the MCA and PUMA limb of the gross negligence charge. The EGM resolution and whether the stated reasons were genuine The Applicant submitted that the disciplinary reasons were merely a device to give effect to a decision already made at the EGM of 4th July 2024. Exhibit AM2, relied upon by the Applicant, records on its last page that “the GM should be given three months notice and should proceed to leave.” Exhibit IK6, relied upon by the Respondent, records as one of the resolutions “the immediate removal of the GM.” The Applicant argued that these documents show that the real decision had already been taken before the suspension and disciplinary hearing. The Respondent submitted that the EGM did not resolve to dismiss the Applicant. Counsel argued that the word “remove” was used in a loose sense and meant removal from active duty or suspension pending investigations. Counsel further argued that this interpretation is supported by what happened afterwards, Page 15Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 namely the suspension letter, Exhibit AM4 or IK7, followed by the notice of disciplinary hearing, Exhibit AM6 or IK8, the disciplinary report, Exhibit IK9, and the dismissal letter, Exhibit AM8 or IK10. Counsel submitted that if the Applicant had already been dismissed at the EGM, those later steps would have been unnecessary. The Court accepts that the Applicant was not formally dismissed at the EGM. No dismissal letter was issued on 4th July 2024. The legal act of dismissal occurred by Exhibit AM8, also Exhibit IK10, dated 12th December 2024. However, the EGM remains important in assessing the genuineness of the reasons later advanced. The Respondent’s own Exhibit IK6 records “the immediate removal of the GM.” Mr Kalumba accepted under cross examination that the Applicant was told to leave the meeting when his tenure was being discussed and that the meeting resolved that the General Manager be removed. He also accepted that there was bad blood between the Chairperson and the Applicant. This evidence does not by itself prove substantive unfairness. An employer may receive complaints, suspend an employee, investigate, and later dismiss if misconduct is proved. But where, as here, the misconduct is not proved, the EGM background becomes significant. It suggests that the Applicant’s removal had already become the preferred outcome and that the later disciplinary process operated against that background. The Court must therefore treat the stated reasons with caution and examine whether they were independently established. For the reasons already given, they were not. The Respondent’s evidence also contained some inconsistency. At different points, the background discussion focused on the expiry of the Applicant’s contract and why he was still working. Yet the dismissal letter did not dismiss him for expiry of contract. It dismissed him for insubordination and gross negligence. The Court must hold the Respondent to the reasons it gave. Contract uncertainty and member dissatisfaction may explain why the Respondent wanted the Applicant removed, but they do not prove the misconduct alleged. Whether summary dismissal was justified The Respondent submitted that it was entitled to summarily dismiss the Applicant under section 59 of the Employment Act. It relied on Chapulumuka v Limbe Leaf Tobacco Company Limited, Civil Cause No. 425 of 2013, [2018] MWHC 1073 (31 July 2018) , Wasili v Clan Transport Ltd, Civil Cause No. 506 of 1981 (unreported), and Magalasi v National Bank of Malawi Limited (2008) MLLR 45 (SCA). Counsel argued that the Applicant’s conduct destroyed trust and confidence and was incompatible with faithful service. The Court accepts that serious insubordination and gross negligence may justify summary dismissal. Section 59 recognises summary dismissal for serious misconduct, substantial neglect of duty, lack of skill, wilful disobedience of lawful orders, and related conduct. But section 59 does not dispense with sections 57 and 61. The alleged misconduct must first be proved. An employer cannot convert an unproved allegation into a valid reason by describing it as gross misconduct. Since the Court has found that gross insubordination and gross negligence were not proved, the foundation for summary dismissal falls away. The Court therefore finds that the Respondent was not entitled to summarily dismiss the Applicant on the reasons stated in Exhibit AM8 and Exhibit IK10. Having considered the pleadings, exhibits, testimony, submissions and authorities, the Court finds that the Respondent failed to prove valid reasons for dismissing the Applicant. The insubordination charge was not proved because the person with direct knowledge, Mr Arthur Matekenya, did not testify, while Mr Kalumba admitted that he did not witness the alleged incident. Exhibit IK9 did not provide sufficient detail to cure that evidential gap. Page 16Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 The gross negligence charge was also not proved. In relation to the bridge and gym projects, the Respondent did not produce the procurement policy allegedly breached, the procurement file, technical reports, Board approvals, contractor evidence or evidence clearly linking the Applicant’s conduct to the alleged loss. In relation to MCA and PUMA, the Respondent did not produce costing documents, the PUMA contract, financial records, or witnesses directly involved in costing and contract approval. The evidence showed concern over management and governance, but it did not prove gross negligence. The Court therefore finds that the Respondent failed to discharge the burden placed on it by sections 57 and 61 of the Employment Act. The dismissal was not based on valid reasons connected with the Applicant’s conduct. The dismissal was substantively unfair. Whether the Dismissal was Procedurally Fair The next issue is whether the procedure followed by the Respondent before dismissing the Applicant was fair. Procedural fairness concerns the manner in which the employer reached the decision to dismiss. It is not concerned, at this stage, with whether the Applicant was in fact guilty of the allegations. That question has already been considered under substantive fairness. The present enquiry is whether the Applicant was informed of the allegations against him, given a reasonable opportunity to answer them, heard by a fair and impartial decision-maker, and dismissed only after a genuine process had been followed. The starting point is section 57(2) of the Employment Act. It provides that employment shall not be terminated for reasons connected with an employee’s 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 such opportunity. This statutory protection reflects the wider right to be heard. The Applicant relied on In the Matter of the Constitution of the Republic of Malawi and In the Matter of the Removal of MacWilliam Lunguzi [1994] MLR 72, where the Court affirmed the principle that a person must not be condemned unheard. The Applicant also relied on Chakhaza v Portland Cement Co. Ltd [2008] MLR 118 , where the Court, citing Kanda v Government of Malaya [1962] AC 322 , emphasised that the right to be heard includes the right to know the case one has to meet and to be given a fair opportunity to correct or contradict it. The Respondent accepted the general legal position but submitted that it complied with it. Counsel for the Respondent relied on Chakhaza v Portland Cement Co. Ltd [2008] MLR 118 and Kwinsongole, Mbembeza and Chiputula v Toyota Malawi Ltd, Civil Cause No. 3071 of 2000, [2004] MWHC 98 (26 August 2004), for the proposition that the right to be heard is satisfied where the employee is made aware of the evidence against him and is given an opportunity to comment on it. Counsel submitted that the Applicant received a written notice of disciplinary hearing, was told of the charges, attended the hearing, elected to proceed without a representative, pleaded to the charges, and gave his answers. The Respondent therefore argued that the dismissal was procedurally fair. The Court accepts that the Respondent took some formal procedural steps. The Applicant was suspended by letter dated 9th July 2024, Exhibit AM4, also produced as Exhibit IK7. That letter stated that the suspension was pending a full investigation into concerns raised at the Extraordinary General Meeting. Thereafter, by letter dated 25th September 2024, Exhibit AM6, also produced as Exhibit IK8, the Applicant was invited to a disciplinary hearing to answer charges of gross insubordination and gross negligence or dereliction of duty. The notice set out the particulars of the allegations and advised him that he had the right to be represented by a member of the union at the Club or a fellow employee. The disciplinary hearing report, Exhibit IK9, records that the Applicant attended the hearing, confirmed that he had received notice, chose to proceed without a representative, pleaded not guilty, and responded to the charges. The dismissal letter, Exhibit AM8, also produced as Exhibit IK10, was issued after that hearing. Page 17Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 Those steps are relevant and they cannot be ignored. They show that the Respondent did not dismiss the Applicant without any form of process. But procedural fairness is not satisfied merely by producing a notice, holding a meeting, and issuing a dismissal letter. The hearing must be real. It must be conducted before a body which approaches the matter with an open mind. It must also give the employee a meaningful opportunity to respond to the case against him. The Court must therefore examine whether, beyond the outward form, the process was fair in substance. Whether the disciplinary process was predetermined by the EGM The Applicant’s first attack on the process was that the decision to dismiss him had already been made at the Extraordinary General Meeting of 4th July 2024. Counsel for the Applicant submitted that the EGM resolved to remove the Applicant from the position of General Manager, and that the subsequent suspension and disciplinary hearing were only a dressed-up formality. The Applicant relied on Exhibit AM2, the minutes he produced, whose last page records that “the GM should be given three months notice and should proceed to leave.” He also relied on Exhibit IK6, the Respondent’s own minutes, which record among the resolutions “the immediate removal of the GM.” The Respondent disputed that submission. Counsel argued that the EGM did not resolve to dismiss the Applicant from employment. The Respondent’s position was that the word “remove” was used in a loose and practical sense and that it meant removal from active duty or suspension pending investigation. Counsel submitted that this interpretation is supported by what followed. The Applicant was not issued with a dismissal letter on 4th July 2024. He was suspended on 9th July 2024 by Exhibit AM4 or IK7, then invited to a disciplinary hearing by Exhibit AM6 or IK8, and finally dismissed by Exhibit AM8 or IK10 after the hearing. The Court accepts that the legal act of dismissal did not occur at the EGM. The Applicant was not given a dismissal letter at that meeting. He remained in employment and was later suspended. That finding is important, because it means the Court does not treat the EGM itself as the formal termination of employment. However, the EGM remains highly relevant to procedural fairness. The question is not only whether dismissal technically occurred at the EGM. The question is whether, by the time the disciplinary process was commenced, the Respondent had already moved from considering complaints to pursuing a settled outcome. The evidence shows that the Applicant’s tenure and continued presence as General Manager were central matters at the EGM. He was asked to leave the meeting when his own employment was being discussed. Mr Kalumba confirmed under cross examination that the meeting resolved that the General Manager be removed. Exhibit IK6 records “the immediate removal of the GM.” Those words are strong. Even if they did not amount to a formal dismissal, they show that the meeting went beyond merely noting concerns for later investigation. It expressed a desired outcome concerning the Applicant’s continued role. That background casts doubt on the openness of the later disciplinary process. A suspension pending investigation may be proper where the employer has not yet made up its mind. But where the members have already resolved upon the immediate removal of the employee, the later hearing must be examined closely to determine whether it was genuinely independent of that resolution. In the present case, the Respondent did not sufficiently show that the disciplinary process was separated from the earlier removal decision. This weighs against procedural fairness. Notice of charges and opportunity to respond The Court next considers whether the Applicant was properly informed of the charges and given an opportunity to respond. Exhibit AM6 or IK8 set out the charges in some detail. The first charge alleged gross Page 18Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 insubordination arising from the alleged incident with the Board Chairperson. The second charge alleged gross negligence or dereliction of duty in relation to procurement, bridge works, gym extension, and food supply contracts with MCA and PUMA. The letter also required the Applicant to submit responses by 1 st October 2024 and advised him of his right to representation. On this aspect, the Respondent’s position is stronger. The Applicant cannot properly say that he was not told the nature of the allegations. The notice was sufficiently detailed to alert him to the broad case he had to meet. He attended the hearing and responded to the charges. Exhibit IK9 records that he pleaded not guilty and gave his explanation on both charges. In that limited sense, the Respondent complied with part of section 57(2) of the Employment Act. However, notice of charges is only one element of procedural fairness. Once the employer elects to conduct an oral disciplinary hearing and call witnesses, the employee must be given a fair opportunity to hear and respond to the evidence against him. The Applicant relied on Khoswe v National Bank of Malawi, Civil Cause No. 718 of 2002, [2004] MWHC 49 (25 August 2004) , where the Court recognised that, where fairness demands an oral hearing, the right to be heard may include the right to cross examine witnesses. That principle is consistent with Kanda v Government of Malaya [1962] AC 322 and Chakhaza v Portland Cement Co. Ltd [2008] MLR 118. The Court is careful not to overstate the point. The evidence does not allow the Court to make a positive finding that the Applicant was expressly refused the right to ask questions. The problem is different. The Respondent bore the burden of showing that the process was fair, yet Exhibit IK9 does not show that the Applicant was given a proper opportunity to test the evidence presented against him. The report records that Mr Matekenya was called as the first witness for the complainant and gave his version on the insubordination allegation. It later records that Mr Kalumba was called as a witness on the food rations. What the report does not show is that the Applicant was invited to put questions to either witness, or that he was otherwise allowed to challenge their evidence. This omission matters because the allegations were disputed. The Applicant denied ordering the Chairperson out of his office. He disputed negligence in relation to the projects and food contracts. If the Respondent chose to call witnesses at an oral hearing, fairness required that the Applicant be given a proper opportunity to challenge the evidence of those witnesses. The Respondent may be correct that a disciplinary record need not read like court proceedings. Still, where the employer bears the burden of showing procedural fairness, it is expected to produce a record that sufficiently demonstrates the fairness of the process. In this case, Exhibit IK9 is too bare to show that the Applicant was given a full and fair opportunity to test the evidence presented against him. The Court therefore finds that although the Applicant was notified of the charges and allowed to give answers, the Respondent failed to demonstrate that he was afforded a meaningful opportunity to challenge the evidence that was relied upon against him. Impartiality of the disciplinary process The Applicant also challenged the impartiality of the disciplinary process. Counsel submitted that the process was tainted because the EGM had already resolved upon the Applicant’s removal and because persons connected to the Respondent’s governance structure participated in the disciplinary process. Particular concern was raised regarding Sophie Mlumbe, who sat on the disciplinary panel and later signed the dismissal letter. The Applicant also referred to Boniface Chima, who appears in Exhibit IK9 as complainant. The argument was that the hearing was not an independent process but was used to implement the EGM resolution. The Respondent’s answer was that there was no proof of bias. Counsel submitted that the Board, as employer, was entitled to constitute a disciplinary panel. The Respondent further argued that it would be absurd to hold Page 19Auweni Mukwala v Blantyre Sports Club, IRC Matter No. 32 of 2025 that a Board loses its right to discipline a senior manager merely because the complaint involves a Board member. Counsel relied on Kanjia v Director of the Anti-Corruption Bureau, Director of Public Prosecutions and Attorney General, Judicial Review Cause No. 48 of 2022, [2022] MWHCCiv 7 (3 October 2022) , on actual bias, and Khoswe v National Bank of Malawi, Civil Cause No. 718 of 2002, [2004] MWHC 49 (25 August 2004), on apparent bias. Counsel submitted that the Applicant had not proved either actual bias or apparent bias. The Court accepts that a Board is not disqualified from disciplining a senior employee merely because the employee reports to the Board. The Court also accepts that bias must not be lightly inferred. An allegation of bias is serious and must rest on facts. The question is whether a reasonable observer, aware of the material facts, would conclude that the hearing might not be impartial. The Court does not base its finding on an assumption that every person who was connected to the Respondent’s Board was automatically disqualified. Nor does the Court find, as a matter of fact, that Sophie Mlumbe participated in the EGM resolution. The more secure point is that she sat on the disciplinary panel and later signed the dismissal letter. The evidence also shows that Mr Matekenya, who was central to the insubordination allegation, was involved in constituting the disciplinary panel. Mr Kalumba confirmed that Mr Matekenya constituted the panel, although he could not clearly explain who invited the chairperson of the panel or how the arrangements were made. Further, he accepted that once a disciplinary committee makes findings, it reports back to the Board for a decision, yet no Board resolution adopting the findings or dismissing the Applicant was produced. The concern is therefore cumulative. The EGM had already called for the immediate removal of the General Manager. The Applicant had been excluded from the discussion of his tenure. The person at the centre of one of the charges was involved in constituting the panel. A member of the disciplinary panel later signed the dismissal letter. The Respondent did not produce a clear Board decision showing an independent consideration of the panel’s findings. These matters blur the line between complaint, hearing and final decision. The Respondent submitted that the panel included persons who were not part of the EGM and that the chairperson of the disciplinary panel was independent. The Court has considered that point. It may reduce the force of the Applicant’s complaint, but it does not remove the concern. The Respondent’s own witness could not explain clearly how the panel was selected or why it was sufficiently independent of the earlier removal decision. In a case where impartiality was challenged, the Respondent needed to show more clearly how the process was insulated from the prior EGM resolution. It did not do so. The Court therefore finds that the Applicant established sufficient facts to raise a reasonable apprehension that the process was not impartial. Procedural fairness requires not merely that a hearing be held, but that it be held before persons who approach the matter with an open mind. On the facts of this case, that requirement was not met. The role of the complainant and the evidence at the hearing The Applicant further submitted that Boniface Chima, who was recorded as the complainant in Exhibit IK9, did not lay any complaint or ask any questions during the disciplinary hearing. Counsel argued that if Mr Chima was the complainant, his role ought to have been made clear and the Applicant ought to have known the complaint he was answering. The Respondent did not displace this point through detailed evidence. Mr Kalumba stated under cross examination that he did not know what Mr Chima said because the minutes did not indicate it. The Court treats this as another weakness in the process. Exhibit IK9 lists Boniface Chima as “Complainant” under persons present. It then records evidence from Mr Matekenya and Mr Kalumba. It does not record any