IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 284 OF 2002
KATAWA . APPLICANT
WARPACK (PRIVATE) LIMITED .. RESPONDENT
CORAM: R. Zibelu Banda (Ms.), Deputy Chairperson
Charles Kamanga Sales Manager for Respondent
Ngalauka Court Clerk
Justification for dismissal-Reasons for dismissal-Probationary period-Compensation
The applicant Watson Katawa was employed as sales and merchandise officer by the respondent, Warpack (Private) Limited, on 7 January 2002. He was put on a six- months probation. His services were terminated before the end of probation period on 1ST July 2002.
The issues that arose in the case were that the applicant was not given reasons for dismissal. As a result of this omission he could not defend himself or challenge the reasons for termination. In the action he is claiming remedies for the unfair dismissal.
Upon hearing the applicant and the respondent the court finds that the termination of the applicants employment was unfair on grounds of technicality. The applicant was entitled to know the reasons for his termination of employment so that he could defend himself accordingly. This is a legal requirement under section 57 (1) (2) of the Employment Act, which stipulates that:
Section 57 (1) The employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.
Section 57(2) The employment of an employee shall not be terminated for reasons connected with his 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 the opportunity.
The burden of proving the reasons for the dismissal lies on the respondent. See section 61 of the Employment Act. Where these provisions have not been complied with there is a presumption that the dismissal was unfair. The respondent was required on a balance of probabilities to prove that they had given the applicant with the reasons for the dismissal and that he was afforded an opportunity to defend himself against the allegation. The respondent failed to rebut this presumption and on evidence it was proved that the dismissal was unfair. See Earl v. Slater &Wheeler (Airlyne) Ltd. 1 WLR, 51 at 55.
A successful applicant in an un fair dismissal claim is entitled to a remedy as provided in section 63 of the Employment Act. The first remedy to be taken into consideration is the remedy of reinstatement. This is where the court after looking at all circumstances of the case and after hearing from both the applicant and respondent may order that the applicant be re employed by the respondent at the same grade as before and with the same entitlements and privileges without a break in the employment.
It transpired during proceeding that the applicants performance was unsatisfactory. Although he was still serving probationary period, he was verbally warned for misconduct. He was accused of making false overtime claims, he left the office without permission and he was representing himself to people and customers as a much more senior staff member than what he was actually employed for. This was a misrepresentation that could mislead customers at the place of the respondents business.
If it were not for the technical omission on the part of the respondent the applicant would have been fairly dismissed. In fact what the respondent should have done was not to confirm the applicant in his employment. The purpose of putting people on probation is to assess their conduct and capacity in the new employment. If they are not up to scratch, it is legally correct to inform them that they are not suitable or capable to perform the work for which they were asked to do.
In considering the remedies the court looks at all circumstances leading to the dismissal. The applicant could not be reinstated because he had shown bad characteristics while on probation. The next remedy to consider is the remedy of compensation.
Section 63 (4) of the Act makes provision for and guidance to court on compensation. This section provides that:
An award of compensation shall be such amount as the court considers just and equitable in the circumstances having regard to the loss sustained by the employee in consequence of the dismissal in so far as the loss can be attributable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal.
When considering what remedy to award the court looks at all factors leading to the dismissal including the applicants contribution if any. It has been abundantly proved by the respondent that the applicant contributed to his dismissal. There is abundant case law both locally and internationally where courts and tribunals have reduced a compensatory award where it is proved that the applicant contributed to the dismissal. For instance, in Earl v. Slater & Wheeler cited above at 58 Sir John Donaldson in upholding the lower courts decision to dismiss the employees claim for compensation said:
We do not think there is any room in this field for the award of nominal compensation and in the light of the tribunals finding that the employee suffered no conceivable injustice they must, even if they had found unfair dismissal, have assessed the compensation at nil. we consider that the employees claim for compensation was rightly dismissed.
A similar decision was arrived at in this court in, Friday Chigwenembe V. Tafika Civil Engineering and Building Contractors Limited (Matter number IRC 124 OF 2001) (unreported).
Considering the applicant had worked for the respondent for less than six months and had been verbally warned for misconduct during that period, The court would put his total contribution to the dismissal at 100%. This means although the applicant has succeeded in his main claim for unfair dismissal, he fails to get any compensation. The rationale is that the applicant had suffered no loss due to the dismissal. If the respondent had complied with procedure and given him the reasons, the applicant would have been dismissed any way.
There is no proof to show that the applicant was to be repatriated after termination of his employment with the respondent. The understanding was that the applicant was informed he would be stationed in Lilongwe and it was up to the parties to agree on repatriation if there was such need. The court has no information of such agreement, hence the claim on this ground must fail. The court makes no award as to repatriation expenses.
Pronounced in Open Court this day of 2003 at LIMBE.
R. Zibelu Banda (Ms.)