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Singini v BCA Bestobell Malawi (IRC 274 of 2002) [2007] MWIRC 17 (31 December 2007)
.RTF of original document
IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL REGISTRY
MATTER NUMBER IRC 274 OF 2002
BETWEEN
SINGINI……..……...……………………………...……………………...
APPLICANT
-and-
BCA BESTOBELL MALAWI…………………………….…………...RESPONDENT
CORAM:
R ZIBELU BANDA (MS); CHAIRPERSON
NC KAJOMBO; EMPLOYEES’ PANELIST
JE CHILENGA; EMPLOYERS’ PANELIST
Applicant; present
Respondent; Absent no excuse
Nyabanga; Official Interpreter
JUDGMENT
1.
Dismissal-Reason for dismissal- Negligence
2.
Procedure- Opportunity to be heard- and defend oneself-Employee to be given a chance to explain his side and defend himself
3.
Burden of proof-In dismissal cases burden on employer to show reason for dismissal-Employer must substantiate the reason
4.
Failure to prove reason-Conclusive presumption of unfairness
Facts
The applicant was employed on 3 July 1997. He was dismissed on 11 August 2000. The reason for termination was negligence. The applicant
challenged the termination alleging that the reason was not valid and that he was not given a right to be heard. 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.
Reason
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. The employer must substantiate the reason in court. In the absence of such proof
there is a conclusive presumption that the dismissal was unfair (section 61 Employment Act). employee is entitled to be given a reason for termination. A reason may relate to misconduct, incapacity or operational requirements
of an undertaking. In the instant case the applicant averred that the reason given was not valid. Further that he was not given an
opportunity to comment on the reason. In the absence any evidence to the contrary the court finds that the reason for dismissal was
not valid as the respondent was not available to substantiate it. Further the procedure leading to the dismissal was unfair as that
applicant was not afforded an opportunity to state his case and defend himself.
Finding
The Court finds that the respondent did not comply with the law. There was no valid reason for dismissal 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 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
Nick Chifundo Kajombo
EMPLOYEES’ PANELIST
Joel Evalisto Chilenga
EMPLOYERS’ PANELIST
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