Msusku v Fersons Ltd (IRC 182 of 2033 ) (182 of 2033) [2005] MWIRC 25 (30 March 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 182 OF 2003


BETWEEN:


MSUKU….......………………………………………………. APPLICANT


-and-

FERSONS LIMITED…………………………..…………RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Applicant; present

Salima; of Counsel for the Respondent

Ngalauka; Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason- Incapacity-Incapacity due to Injury-Procedure-Right to be heard-Right to development-Courts to promote and protect people’s rights-Ability to perform other duties-Disability not inability.


Facts

The applicant was employed in March 2000 as a Motor Vehicle Mechanic. On 17 December 2000 he got injured on duty, he fell from a truck he was working on. He was admitted to hospital but even after he was discharged he was not well enough to perform his duties. He was thereafter in and out of hospital. On 2 March 2001 through a letter of even dated the applicant was declared redundant on grounds of illness. The applicant challenged the dismissal alleging that he was entitled to employment with the respondent because he was injured at the work place. The respondent pleaded that the applicant was incapacitated therefore he could not do the work that he was employed to do. They averred that they paid the applicant his terminal benefits and they paid him compensation for the injury under the Workers Compensation Act.


Issue

The issue for the court to determine was whether under the circumstances of this case the termination of the applicant’s contract of employment was fair.


The Law

The applicable law in this matter is the Employment Act 2000. Section 57 of the Act provides that before dismissal for reasons relating to capacity the employee must be given the reason and must also be afforded an opportunity to explain his side and defend himself, see Itaye V Malawi Distilleries Ltd [Matter Number IRC 25 of 2001 (unreported)].

The reason must be given before dismissal so that the employee can state his case and defend himself. In cases of incapacity, good industrial practice demands that the concerned employee must be given an opportunity to express his side and suggest alternatives to termination.


The reason in this case was injury of the applicant. His medical situation was brought to the attention of the respondent. The respondent proceeded to declare him redundant on health grounds on the basis that they could not retain him in his position as Mechanic. The applicant was paid all his terminal benefits including compensation under the Workers Compensation Act for the occupational injuries he suffered while on duty.


The applicant was not satisfied with the termination because he said that he expected more assistance from the employer having been injured at the work place.


Procedure

In the case of ill health the employer must ensure that before the dismissal they consult the employee. Consultation forms part and parcel of fair labour practices. In cases of incapacity due to injury, it is necessary for the employer to consult with the injured employee to find suitable solutions to problems created due to incapacity caused by occupational injury.


The respondent did not show that they had consulted the applicant on whether he should be declared redundant on medical grounds. They made a decision at management level to declare the applicant redundant without hearing his side. In court the respondent did not show that they had consulted the applicant before terminating his services.


There was no justification for denying the applicant an opportunity to be heard before his services were terminated. It is possible that there might have been some other duties like passing light tools and other lighter duties for the applicant to perform. The employer was under duty to ensure that the welfare of their employee was given priority. In this case dismissal was not in the interests of the applicant, hence his complaint.


The issue of scaling down at the company was irrelevant at the hearing because the applicant was not even aware that the company was carrying out retrenchments or indeed that the applicant was a casual labourer. The respondent failed to show on a balance of probabilities that the applicant was a casual labourer.


FINDING

The court finds that the respondent violated the applicant’s right to fair labour practices by terminating his services on grounds of incapacity without providing the applicant the right to be heard. It was imperative for the respondent to discuss with the applicant on a fair course of action to take in view of the fact that the injury was sustained in the course of duty.


Further, it was necessary to consult the applicant and consider other alternatives to termination because the applicant was not unable to perform other duties. For example passing light tools and other such duties. His medical report did not show that he was useless as an employee.


The respondent failed to accommodate the applicant on the basis of his physical challenge. This was violation of the applicants right as a disadvantaged employee. In section 30 (1) of the Constitution, it is provided that:


“All persons and people have a right to development and therefore to the enjoyment of economic, social, cultural and political development and women, children and the disabled in particular shall be given special consideration in the application of this right.”


There is government policy to protect and empower the physically challenged. It is therefore crucial that companies heed this call and respond to the needs of the physically challenged persons who are able and willing to work for their keep. It is said that ‘disability is not inability.’ Section 30(2) of the Constitution states that:


“The State shall take all necessary measures for the realization of the right to development. Such measures shall include, amongst other things, equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.”


The courts are one arm of the State and it is the duty of the courts as an agent of the State to promote and protect the interests of the disadvantaged. The Court finds that the termination of the applicant on the basis of his physical disability without consultation was unfair, see Malote V Automotive Products Ltd [Matter Number IRC 285 of 2002 (unreported)].


Assessment of Remedy

Where there is a finding that dismissal was unfair, the court is mandated to make any orders that are necessary and appropriate to secure the enjoyment of the right to fair labor practices.


The court shall set down a date to assess a remedy and determine its practicability. Both parties shall be required to attend the assessment.


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



R. Zibelu Banda (Ms.)

CHAIRPERSON.