Kamoyo and Another v J&M General Dealers (IRC 277 f 20033 ) (NULL) [2005] MWIRC 23 (30 March 2005);

Share
Download: 


IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 277 OF 2003


BETWEEN:


KAMOYO AND ANOTHER…..…………………………. APPLICANTS


-and-


J & M GENERAL DEALERS…..…………………….. RESPONDENT




CORAM: R. Zibelu Banda; Chairperson
Applicants: Kamoyo;
Khunju Jnr. Representing deceased applicant

Respondent; Absent

Ngalauka, Court Clerk

JUDGMENT


Unfair dismissal-Justification-Reason-Negligence- Failure to account- Right to be heard-Opportunity to explain ones side-Terminal benefits-Severance allowance.

Facts

The two applicants were employed as Security Guards for the respondent. They were both dismissed on 31 August 2003. The reason for dismissal was failure to account for company property. The applicants challenged the dismissal alleging that the reason was not valid. The respondent did not attend hearing. There was no communication from the respondent as to why they could not attend hearing. The matter had to proceed in the absence of the respondent pursuant to section 74 of the Labour Relations Act.


Issues

The applicants asked the court to find that the reason for dismissal was invalid and that they should be paid compensation and terminal benefits.

The Law

A dismissal is unfair if it does not comply with section 57 of the Employment Act, which, provides that before dismissal an employee must be furnished with the reason for dismissal and must be afforded an opportunity to explain his side of the allegation if the dismissal is related to conduct or capacity.


In this case the applicants told court that they were told that 75 chickens were missing. The applicants stated that they did not know anything about the chicken. They told court that they did not keep keys for the chicken pens.


The court finds that the applicants as Security Guards guarding the premises were supposed to know the movements of stuff including chicken at the company premises. Otherwise it would be useless to employ security personnel and yet have property missing unaccounted for.


The respondent had a genuine concern. They inquired from the security personnel to explain what had happened to the missing chicken but the applicants failed to give any satisfactory response. The respondent had a valid reason to dismiss the security men and before the dismissal he afforded the applicants the opportunity to defend themselves thereby complying with section 57 of the Employment Act, see, Ibrahim V Suncrest Creameries Ltd [Matter Number IRC 73 of 2003 (unreported)].


Finding

The court finds that the dismissal was fair as the respondent complied with the law in dismissing the two applicants.


Terminal Benefits

Severance Allowance

The applicants alleged that they did not receive terminal benefits. They produced a letter of dismissal, which only refers to unpaid notice of one month. The applicants having been dismissed with notice are entitled to severance allowance.


ORDER

The court orders that the respondent pays the two applicants severance allowance in accordance with section 35 of the Employment Act. The First Schedule to that section in 2003 when the applicants were dismissed, provided that where the applicant was employed for less than ten years; severance allowance shall be paid at the equivalent of two weeks’ wages for each year of continous service; if the applicant worked continously for ten years upwards, he is entitled to the equivalent of four weeks’ wages for each year of continous service.


The severance allowance must be calculated and paid to the two applicants. In the case of the deceased applicant; Mr. Khunju, the severance allowance must be paid to his surviving spouse or, in her absence to such other dependent relative as the labour officer may decide in accordance with section 35 (7) of the Employment Act. This is because although the termination occurred before the death and it was for reason other than death of the applicant; justice and fairness would demand that the severance allowance, which is owed to the deceased applicant, be paid to the surviving dependents. The money must be paid into court for the applicants within seven days of this order.


Notice Pay

The applicants were given notice on 4 August that their contracts would be terminated at the end of the month. This was adequate notice therefore the applicants are not entitled to any notice pay.


Leave Pay

The applicants did not plead neither did they adduce evidence that at the time of their termination they had accrued some leave days. Leave pay is earned and the burden of proof that leave was earned is on the employee. In the absence of that proof the court cannot award any leave pay.


Pronounced in Open Court this 30th day of March 2005 at LIMBE.



R. Zibelu Banda (Ms.)

CHAIRPERSON.