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Chitedze v Office Machines and Supppliers (MW) Ltd (IRC 62 of 2003) [2007] MWIRC 3 (31 December 2007)

.RTF of original document

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

 PRINCIPAL REGISTRY

MATTER NUMBER IRC 62 OF 2003

BETWEEN


CHITEDZE……..……...……………………………...………………….. APPLICANT
-and-

 OFFICE MACHINES AND SUPPPLIERS (MW) LTD…………...RESPONDENT
CORAM:   R ZIBELU BANDA (MS); CHAIRPERSON
                  MRN PADAMBO; EMPLOYEES’ PANELIST
                  JE CHILENGA; EMPLOYERS’ PANELIST
                  Ngwira; of Counsel for the Applicant
                  Respondent; Absent no excuse
Nyabanga; Official Interpreter


JUDGMENT
1.       Dismissal-Reason for dismissal- Not given
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 4 December 2000. He was dismissed on 2 December 2002. He was invited to his immediate supervisor’s office where there were two other persons present. The immediate supervisor shouted at the applicant and dismissed him. The applicant was not given the reason for the dismissal. He was never given a letter of termination. He was not told why he was being shouted at. He brought this action alleging unfair dismissal. 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
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). 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 he was never given a reason for dismissal. In the absence of any evidence to the contrary, the court finds that the applicant was dismissed without any reason contrary to section 57 as read with section 61 of the Employment Act.

 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. There was no reason for dismissal and the applicant was not given any hearing. The respondent violated sections 57 and 61 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


 Maxwell RN Padambo
EMPLOYEES’ PANELIST


Joel Evalisto Chilenga
EMPLOYERS’ PANELIST







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