Mitumbu v Pedro's Grill (IRC 23 of 2003 ) (23 of 2003) [2005] MWIRC 10 (08 February 2005);

Share
Download: 



IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 23 OF 2003


BETWEEN:


MITUMBU………………… ………………………………. APPLICANT


-and-


PEDRO’S GRILL & LODGE………………………… RESPONDENT



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

Mambulasa of Counsel for Applicant

Respondent; absent

Ngalauka, Court Clerk



JUDGMENT


Dismissal Law- Reasons for dismissal- Burden of proof- Respondent to show reason-Procedure for dismissal-Opportunity to be heard-Severance allowance-Leave Pay-Overtime-Claimant to plead and prove.


Facts

The applicant was employed in April 1999 as a security guard. He was dismissed on 15 July 2002. The reason for dismissal was not valid. Further the applicant alleged that he was not paid severance allowance, accrued leave pay and accrued Overtime. The applicant also averred that he was not given an opportunity to be heard. The applicant therefore challenged the dismissal claiming compensation for unfair dismissal, severance allowance, leave pay and overtime pay.


The applicant narrated the events leading to dismissal. He stated that on the material day he was guarding the respondent’s Managing Director’s (MD) house. As the MD was coming in through the gate to the house, a dog belonging to the MD came out of the fence through the open gate. The dog run out of the fence and went into a fight with another dog outside the fence. The applicant separated the dogs. The respondent dismissed the applicant instantly. The applicant was not given a chance to be heard.


The respondent failed to turn up to respond to the applicant’s allegations. On the appointed date for hearing neither counsel for the respondent nor a representative from the respondent’s company appeared to cross- examine the applicant nor to give evidence. No reasons were offered for the non-attendance and the case had to proceed in the absence of the respondent pursuant to section 74 of the Labour Relations Act, which provides that:


“If a party fails to attend or to be represented at the proceedings of the Industrials Court without good cause, the Industrial Relations Court may proceed in the absence of that party or representative”.


Also see also Chirimba Garments (EPZ) Manufacturing Limited V Nyaika [Civil Appeal No. 58/2003 (unreported)].

The Issue

The applicant prayed to this court to find that the dismissal was unfair because the reasons for the dismissal were not valid and that the applicant was not given a chance to be heard and that the court must order that the respondent pay the applicant compensation for unfair dismissal, long service pay, accrued over time pay and accrued leave pay.


The Law

Reason
The applicant claimed that he was not given a valid reason for dismissal. The law provides that before termination, an employee must be furnished with reasons for the dismissal. Section 57(1) of the Act states that:


“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.”


The duty to show the reason for dismissal is on the employer. The employer must show and convince court that reasons for termination were valid and justified. In Earl v. Slater and Wheeler, [1973] 1 WLR 51, the court of appeal held that:


“It is for the employer to show what was the principal or only reason for dismissal…. and that it was a potentially valid reason…. If the employer fails to discharge this burden, the tribunal must find that the dismissal was unfair.”


In the instant case the court heard that the applicant did not know why he had been dismissed. The respondent did not give the applicant any valid reason. The applicant failed to understand how the running out of a dog from the fence could constitute a reason for dismissal, without any harm befalling it.


The applicant further stated that he was not given an opportunity to explain and himself against the alleged reasons for dismissal. It is a fundamental principle of employment law that an employer must afford an employee an opportunity to defend himself before his employment can be terminated.


Section 57(2) of the Act states as follows:


“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.”



In the instant case the employer did not allow the applicant to defend himself before his employment was terminated. This was a clear violation of the law.


Finding

Section 58 of the Employment Act states that a dismissal is unfair if it is not in conformity with section Employment 57. Further, the respondent failed to rebut the presumption of unfair dismissal on a balance of probabilities under section 61(1) of the Act. The court finds that the dismissal was unfair.


Remedies

Section 63 of the Employment Act provides that if the court finds that an employee’s complaint of unfair dismissal is well founded, it shall award the employee one or more of the following remedies:


  1. Reinstatement

This is where the court orders that the employee be taken back by the employer and be treated in all respects as if he had not been dismissed. In deciding which remedy to award the court shall first consider the remedy of reinstatement. The remedy is awarded only where the court is convinced that reinstatement is practicable. For instance, the award shall not be made where the relationship between the employer and employee is strained and likely to create tension. The award shall also not be made where the employee is not willing to go back to work for the employer. The court must be careful when making the award not to turn the contract of employment into a contract of servitude. This applies to both the employer and employee.


  1. Compensation

The court can order that the respondent pay the applicant money as compensation for the loss suffered due to the dismissal. An award of compensation must be just and equitable in the circumstances having regard to the loss sustained by the employee in consequence of the dismissal. The loss must be attributable to the action of the respondent. The heads under which compensation can be pleaded are provided in Magola V Press Corporation Ltd [Civil Cause No. 124/2001 (unreported)]. The burden is on the applicant to prove the loss.


It was thus held in Norton Tool Co. Ltd. V. Tewson [1973]1WLR 45 at 49:

“This does not mean that the court or tribunal can have regard to other matters, but rather that the amount of the compensation is not precisely and arithmetically related to the proved loss. Such a provision will be seen to be natural and possibly essential, when it is remembered that the claims with which the court and tribunals are concerned are more often than not presented by claimants in person and in condition of informality. It is not, therefore, to be expected that precise and detailed proof of every item of loss will be presented, although, after making due allowance for the skills of the persons presenting the claims, the statutory requirement for informality of procedure and the undesirability of burdening the parties with the expense of adducing evidence of an elaboration which is disproportionate to the sums in issue, the burden of proof lies squarely on the applicant.”






Terminal Benefits

Severance Pay

The applicant told court that he did not receive his long service pay. The court orders that the applicant be paid his severance allowance in accordance with the law, see section 35 of the Employment Act.


Overtime

The applicant claimed balance on overtime. The claim is grounded on section 39 of the Employment Act, which provides for three classes of overtime. The applicant claimed that during his employment he worked overtime and yet he did not receive payment as compensation. The court orders that the respondent pays the applicant overtime pay to be calculated in accordance with section 39 of the Act.


Leave Pay

The applicant claimed leave pay for accrued leave days during employment. He stated that he did not go on leave during the whole time he was employed by the respondent. The court orders that the applicant be paid his leave pay in to be calculated in accordance with the law. In this case the applicant is entitled to eighteen days leave per year for three years and three months less what he was already paid at termination.


ORDER

The respondent in consultation with the applicant or his counsel is ordered to calculate severance allowance, leave pay and overtime pay to be paid to the applicant within seven days of the date hereof.


Assessment of Compensation

The court shall assess compensation on a date to be fixed and both parties shall be required to attend the assessment. Any documents or relevant material that may be used as evidence must be brought and produced in court for assessment purposes.


Pronounced in Open Court this 8th day of February 2005 at LIMBE.




R Zibelu Banda (Ms.)

CHAIRPERSON