Chisowa v Ibrahim Cash 'n Carry (IRC 259 of 2003 ) (259 of 2003) [2005] MWIRC 15 (24 February 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 259 OF 2003


BETWEEN:


CHISOWA……….………… ……………………………………………. APPLICANT


-and-


IBRAHIM CASH ‘N CARRY…………….………...………………… RESPONDENT



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

Applicant; present

Respondent; Ibrahim Panjwani- Chairman

Ngalauka, Court Clerk



JUDGMENT

Employment-Employee- Who an employee is-Dismissal Law-Justification- Reason for dismissal-Pregnancy-Statutory Excluded-Burden of proof-Employer to show reason-Presumption of guilt-Investigations-Leave -Maternity leave-Right to return to work-Violation of law-Remedies-Fine-Imprisonment-Reinstatement-Refusal to reinstate employee- Fine-Compensation.


Facts

The applicant Dorothy Chisowa was employed on 17 June 2002 as Saleslady. She was dismissed on 1 September 2003. The applicant was not convinced with the reason for dismissal. She believed that the dismissal was related to her pregnancy. The applicant therefore challenged the dismissal alleging that the reason was not valid. The respondent on the hand contended that the applicant was not an employee and also that the applicant had stolen from the respondent.

The Issues

The issues in this case are whether the respondent employed the applicant and whether she was dismissed and whether the dismissal was related to pregnancy and therefore unfair.

The Law

Employment

Section 3(b) of the Employment Act defines employee as:


“any person, who performs work or services for another person for remuneration or reward on such terms and conditions that he is in relation to that person in a position of economic dependence on, and under an obligation to perform duties for, that person more closely resembling the relationship of employee than that of an independent contractor”.


Several elements come out of section 3 notable of which is the fact that there is an engagement to perform work, constituted through “an oral or written contract of employment, whether express or implied”, section 3(a) of the Employment Act.


In the instant case the applicant conceded that she was employed as a casual labourer and was receiving her wages on a fortnightly basis. Eventually, she negotiated for full time employment at which point she was asked to complete certain form and from then onwards she was employed on full time basis earning her wages on a monthly basis


The respondent however in its defence stated that he never employed the applicant and that she could not claim that she was unfairly dismissed. In support of his contention, the respondent challenged the applicant to produce conditions of service as evidence of her employment status with the respondent. The applicant narrated the conditions of service as told to her orally by the respondent and these conditions pertained to the hours of work, nature of work to be performed, rate of remuneration and intervals at which remuneration was to be paid.


In applying these facts to the definition of employee under section 3 of the Employment Act, it is clear that the applicant and the respondent were in an employment relationship agreed to orally. The terms and conditions of service were also communicated verbally.

Where it is shown that a person was engaged to perform work for another person and that person paid remuneration for the work performed and that the person economically dependent on the other in a relationship not that of an independent contractor, then the court must find that there was a contract of employment, see Kachika V Longwe [Matter No. IRC 195/2003 (unreported)].


It must be noted that the duty of drawing up particulars of employment and giving them to the employee is on the employer, see section 27 of the Employment Act. It is therefore not a defence that the applicant did not have a written statement of particulars also referred to as terms and conditions of employment. The respondent did not carry out its obligations under the law to make available to the applicant a written statement of particulars of employment. The respondent’s claim therefore fails. The court finds that the applicant was in fact employed by the respondent.


Dismissal

The applicant narrated that she applied for and was granted maternity leave from July to 1 September 2003, this was in line with section 47 of the Employment Act, which provides that:


“ A female employee shall be entitled, within every three years, to at least eight weeks maternity leave on full pay”.


On 30 August 2003 the applicant reported to the shop where she was working as Saleslady. The respondent’s wife immediately advised the applicant that she had been dismissed. The reason for dismissal was that the shop had been swindled by its employees. The applicant was shocked because she was away on maternity leave and therefore she could not have been involved in the theft.


The applicant was sent back without any valid reason and without any terminal benefits. The respondent in his defence told court that the applicant must have known about the theft because it was carried out over a long period of time where millions of Kwachas was lost. This is why she had to be dismissed just like her colleagues were dismissed while the applicant was on leave. The theft was discovered during the time that the applicant was on maternity leave.


The reason advanced by the respondent was not valid because the applicant was on maternity leave for two months. During this time she was not responsible for the custody of either money or merchandise for the respondent. In Mahowe V Malawi Housing Corporation [Civil Cause No. 3687 of 2000( unreported)] Chimasula Phiri J; held at page 29 of the transcript that:


“The court in determining whether the reason for dismissal is justified may examine if the plaintiff was the one who was in charge of the transaction alleged to be the reason for dismissal.”


The applicant was not around when the theft was uncovered. It was not shown when the theft took place and indeed when exactly it was uncovered. The respondent just made sweeping statements, which did not connect the applicant to the theft.


The respondent held a suspicion that perhaps the applicant had stolen but that was all they had. It was therefore imperative for the respondent to make thorough investigations in relation to the specific involvement of the applicant to the theft. In British Home Stores Ltd V Burchell [1978] IRLR 379 EAT, it was held that:


“In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair an Industrial Tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief. And third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”


The respondent in the instant case did not show on a balance of probabilities that he carried out the procedure as explained in the case above cited. He did not show how he believed that the applicant who was away for two months was involved in the theft. It was not proved on a balance of probabilities that the respondent had carried out thorough investigations that revealed the applicant’s connection to the theft.


To the extent that the respondent failed to show a reasonable source of belief that the applicant was dishonest and the failure to carry out investigations to show how the applicant was involved the court finds that the dismissal was unfair for want of justification.


The burden of showing the reason for dismissal is on the employer, see section 61 of the Employment Act. In this case the respondent failed to show a valid reason for dismissal. The reasonable conclusion therefore is that the applicant was dismissed because of her pregnancy.


The applicant fell pregnant and was away for two months on leave. When she reported back for duties she was informed that her services had been terminated. Pregnancy is not a ground for dismissal.


Section 48(1) of the Employment Act provides that:


“ Upon the expiration of her maternity leave, an employee shall have the right to return to the same job with the same benefits and entitlements as immediately before her absence”.


In section 49 of the Employment Act, it is provided that:


“An employer who terminates the employment of an employee because the employee is pregnant or for any reason connected with her pregnancy shall be guilty of an offence and the burden of proving that the employment was not terminated because of pregnancy shall be on the employer.”


There is a provision with similar effect in the Employment Protection (Consolidation) Act of England. In construing that section the House of Lords held in Brown v Stockton-on-Tees Borough Council [1988]IRLR 263 HL that:


“[Section 60] must be seen as a part of social legislation passed for the specific protection of women and to put them on an equal footing with men. Although it is often a considerable inconvenience to an employer to have to make the necessary arrangements to keep a woman’s job open for her whilst she is absent from work in order to have a baby, that is a price that has to be paid as a part of the social and legal recognition of the equal status of women in the workplace.”


In the instant case, the respondent did not produce any valid reason why the applicant was dismissed. The presumption therefore is that the dismissal was connected to the applicant’s pregnancy.


The court finds that the applicant was dismissed due to her pregnancy. This was violation of the law and such violation attracts a fine of K20 000 and imprisonment for five years pursuant to section 48 (2) of the Employment Act.


The court may in addition to the penalty imposed under section 48(2) order the employer to reinstate the employee, who shall be treated in all respects as if her employment had not been terminated; and may order compensation as specified in section 63 (1) (c) of the Employment Act.


Finding

The court finds that the reason for terminating the applicant’s contract of employment was invalid as it discriminated against her on the basis of her pregnancy. The respondent violated the applicant’s right to fair labour practices. The dismissal was therefore unfair.


Assessment of Compensation

The court shall assess an appropriate remedy 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 24th day of February 2005 at LIMBE.



Rachel Zibelu Banda (Ms.)

CHAIRPERSON.