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Saidi v Limbe Leaf Tobacco Ltd (IRC 409 of 2005) [2007] MWIRC 16 (31 December 2007)
.RTF of original document
IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL REGISTRY
MATTER NUMBER IRC 409 OF 2005
BETWEEN
SAIDI……..……..……...……………………………...…………………..
APPLICANT
-and-
LIMBE LEAF TOBACCO LTD….…………..………...……………...RESPONDENT
CORAM:
R ZIBELU BANDA (MS); CHAIRPERSON
MRN PADAMBO; EMPLOYEES’ PANELIST
JE CHILENGA; EMPLOYERS’ PANELIST
Mpaka; of Counsel for the Applicant
Respondent; Absent no excuse
Nyabanga; Official Interpreter
JUDGMENT
1.
Dismissal-Reason for dismissal- Misconduct- Absenteeism
2.
Burden of proof-In dismissal cases burden on employer to show reason for dismissal-Employer must substantiate the reason
3.
Failure to prove reason-Conclusive presumption of unfairness
4.
Procedure- Opportunity to be heard- and defend oneself-Employee to be given a chance to explain his side and defend himself
Facts
The applicant was employed on 25 September 2001. He was dismissed on 28 September 2004. The reason for dismissal was absenteeism.
The applicant admitted that he was absent from duty from 5 September 2004 to 26 September 2004. The reason for absenteeism was that
he had been arrested by the police on a charge of assault and that he was incarcerated for 21 days. The applicant sent notification
to the respondent about his detention. Upon his release he reported back to the office but he was dismissed without any hearing and
without any notice or terminal benefits. The applicant took out this action claiming that the termination was unfair. The respondent
was invited to a hearing but they did not attend court. No reason was given for non attendance. The court invoked provisions of section
74 of the Labour Relations Act and proceeded to dispose of the case.
The Law
Section 59 of the Employment Act provides that absenteeism is ground for dismissal where no permission is granted and the reason for
the absenteeism is not valid. The applicant alleged that he was absent from work for a valid reason that entitled him to unpaid leave
according to Clause 13(c) of the Conditions of Service. That clause provides that an employee shall not be paid anything if he was
absent from duty due to the reason that he was under police custody. The applicant therefore alleged that the only punishment that
the respondent could impose on him was to deny him any pay for the days that he was absent and not to dismiss him.
Where there is an allegation of dismissal, the burden is on the employer to show that there was a valid reason for the dismissal and
that employer acted with fairness before dismissal. In the absence of such proof there is a conclusive presumption that the dismissal
was unfair (section 61 Employment Act). The court having read the relevant clause and the respondent not being available at the court
to provide any evidence contrary to that of the applicant, or to substantiate the reason, finds that the reason for dismissal was
not valid.
Procedure
The applicant alleged that he was not given a hearing before the dismissal. The court finds that the respondent did not comply with
a fair procedure before dismissal
Finding
The Court finds that the respondent did not comply with the law. The reason was not valid and the applicant was not given any hearing.
The respondent violated section 57 of the Employment Act. This termination was therefore unfair .
Assessment of Award
The applicant is entitled to an award under section 63 of the Employment Act. He is also entitled to notice pay and severance allowance
as claimed. The court shall set down a date to assess compensation. Both parties shall be required to attend the assessment.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.
Made this 31st day of December 2007 at BLANTYRE.
Rachel Zibelu Banda
CHAIRPERSON
Maxwell RN Padambo
EMPLOYEES’ PANELIST
Joel Evalisto Chilenga
EMPLOYERS’ PANELIST
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