Komwa v Coordination Unit for the Rehabilitation of the Environment (CURE) (irc 19 of 20011) ( of ) [2005] MWIRC 1 (10 January 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 109 OF 2001


BETWEEN:


KOMWA.......………………………………………………. APPLICANT


-and-


CORDINATION UNIT FOR THE REHABILITATION OF THE ENVIRONMENT (CURE)…….……………………… RESPONDENT.



CORAM: R. Zibelu Banda (Ms), Deputy Chairperson

Mambulasa, of Counsel for the Respondent

Applicant, present

Ngalauka, Court Clerk


JUDGMENT

Dismissal- Justification for dismissal- Reason- Incapacity-Procedure-Right to be Heard and Defend oneself-Previous warnings- Remedy-Contributory fault.


FACTS

The applicant was employed in October 1995 as Finance and Administration Manager. He was dismissed on 15 February 2001. The dismissal was for reason of incapacity. The applicant challenged the dismissal alleging that the reason was not valid and that he was not given an opportunity to be heard.


ISSUE

The Court was called upon to determine whether the dismissal was unfair.

A dismissal is unfair if it does not comply with the law. The law in this case is the Employment Act.




THE LAW

Section 57 of the Employment Act provides that an employee must be provided with a valid reason before dismissal and that he must be give an opportunity to be heard before the dismissal can be carried out.


Reason

In this case the court heard that the applicant as Financial Manager was responsible for all matters involving finance at the organization. These duties included preparations of financial reports and returns with supporting explanatory notes and statements. However on some occasions the applicant failed to provide the reports and in some cases he failed to provide accompanying statements and in other cases he produced reports but not in time. The applicant’s failure to perform his duties with satisfaction affected operations of the organization.


As a response to these shortcomings the applicant was warned and asked to improve for the betterment of the organization. The respondent exhibited four written warnings and reminders on the applicant’s failure to produce and submit financial reports in time or at all and failure to prepare complete financial returns with accompanying explanatory notes.


The applicant alleged that he was able to perform his duties satisfactorily. However, the applicant did not explain how he received four warnings and reminders since 1996 about his shortcomings in his field of work. The court finds that the respondent had a valid reason for which to terminate the services of the applicant.


Procedure

The respondent having found and given the applicant a ground for disciplinary action, was under legal obligation to afford the applicant an opportunity to be heard on the allegations. The requirement to be heard entails that an employee shall be informed of the concerns or allegations against him; he then shall be required to answer to those allegations. Depending on his response the employer can decide whether to dismiss or to take other administrative action. In Polkey V A E Dayton Services Ltd [1987]3 All ER 974 at 983-984, it was held; per Lord Bridge of Harwich that:


“An employer having prima facie grounds to dismiss ……will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’, which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of incapacity, an employer will normally not act reasonably unless he gives the employee fair warning to mend his ways and show that he can do the job.”



In the instant case the applicant gave evidence that he was not given any opportunity to be heard. He did not explain his side and defend himself. The respondent conceded that prior to the termination, the applicant was not heard.


However, the respondent adduced evidence that they had prior written and verbal discussions with the applicant about his poor performance. The question whether the memos and the discussions on the applicant’s poor performance constituted a hearing was answered in Cornelious & others V Howden Africa Ltd t/a M& B Pumps, [1998]19 ILJ 921,where the South African Labour Court held that:


“It does not matter whether each of the procedural requirements [has] been meticulously observed. What is required is for all relevant facts to be looked at in the aggregate to determine whether the procedure adopted was fair. One must guard against the rigid imposition of judicial style proceedings in inappropriate situations.”

In the instant case the respondent showed court that the applicant was incapable of performing the duties for which he was employed. The respondent drew the problems to the applicant’s attention. The applicant continued to under- perform even after discussions with his boss.


The court finds that the applicant was aware of his shortcomings and he could not reasonably have expected to continue in employment with his failures to produce reports and meet deadlines. He held a senior position and was required and expected to demonstrate his capabilities without much probing from his superiors. However, when the respondent reached a point of dismissal they were required to invite the applicant for a hearing to explain his side and defend himself.


The Respondent’s failure to afford the applicant the opportunity to be heard constituted unfair labour practices. The respondent’s decision was unfair on technicality.


FINDING

The court finds that the respondent failed to comply with section 57(2) of the Employment Act. In accordance with section 58 of the Employment Act the dismissal was unfair. The court so finds.


REMEDY

Having found that the dismissal was unfair, the court must assess a remedy. In assessing an appropriate remedy, the court must take all circumstances of the case into consideration.


In this case the court heard and found that the applicant was a senior skilled and professional officer. He headed a finance department. As head of the department he failed to perform his duties satisfactorily. His failures had negative bearings on the organization. The applicant was warned on several occasions for incapacity, but he failed to improve.


The court finds that the applicant contributed considerably to his dismissal such that he cannot be reinstated. The applicant’s contribution to the dismissal is so serious that he cannot even be compensated for his loss. The rationale on compensation is that the successful applicant is compensated for the loss incurred due to the dismissal. In this case, had the respondent complied with procedure the chances are that the applicant would have been dismissed anyway. Therefore he would not have recovered anything. Since there is no room for nominal compensation, the court makes nil award to the applicant: see Earl V Slater & Wheeler (Airlyne) [1973] 1 WLR 51, cited in Mtonga V Malawi Savings Bank [Matter No. IRC 126/2000 (unreported)] which held that:


“We do not think there is any room in this field for the award of nominal compensation and in the light of the tribunal’s 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 employee’s claim for compensation was rightly dismissed.”


Pronounced in Open Court this 10th day of January 2005 at LIMBE.



R Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.