Mwangulu v Kwalazi Estate Company (IRC 71 of 2004 ) (71 of 2004) [2005] MWIRC 36 (22 April 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 71 OF 2004


BETWEEN


MWAUNGULU……………………………… …………….......................APPLICANT


-and-

KAWALAZI ESTATE COMPANY LTD……………...……………..RESPONDENT



CORAM: R. Zibelu Banda (Ms.); Chairperson
Lameck; of Counsel for the applicant
Kanyenda; of Counsel for Respondent
Namponya; Court Clerk

ORDER

Dismissal- Justification-Reason-Incapacity--Poor health-Absenteeism-Procedure-Right to be heard-Consultation-Compensation-Factors-Continous service.


Upon hearing the applicant and the respondent the court finds that the applicant absented himself from work for some days. This absenteeism was due to illness. During the time that the applicant failed to report for duties he was either admitted in hospital or recuperating at home. The respondent found this as ground for dismissal. However this court has held that illness in not ground for termination of employment: Phiri V Sunbird Lifupa Lodge [Matter Number IRC 232 of 2002 (unreported)] IRC.


It was held in that case that it is only where there is absolute incapacity that an employer will be justified to terminate the employment. This was not the case in this matter. In fact the applicant was able to demonstrate that he was capable of performing his duties and that under no circumstance was he ever so incapacitated as to be useless in his job. The court agreed with the applicant as the respondent was not able to show medical proof asserting that the applicant had reached a state of absolute incapacity.


The reason for dismissal was not valid. This was contrary to section 57 (1) of the Employment Act. Therefore the dismissal was unfair.


Further, the applicant was not given an opportunity to explain his state of health and the issue of whether or not he would be able to perform the duties for which he was employed. The respondent failed to comply with procedure as demanded by section 57(2) of the Employment Act, which demands that where the reason for dismissal is incapacity, the employee must be given an opportunity to explain his side and defend himself.



Assessment of Remedies

Where a party succeeds in a case of unfair dismissal, the court is empowered to award that person a remedy. These remedies are provided in section 63 of the Employment Act. However before awarding any remedy the court must assess the case from the facts to determine the appropriate remedy. As such remedy is not automatic and is not uniform as the remedy will always depend on the circumstances of the case.


The applicant sought the remedy of compensation. The principle of compensation is that it must be just and equitable: Enough to compensate but not too much as to award a bonus or too little as to be meaningless.


In this case the court heard that the applicant had worked for the respondent for six months. During this period the applicant had been absent from work on three different occasions for periods ranging from two days to seven days at a time. The court notes that the applicant’s attendance to work was indeed irregular due to illness. However as stated above this in itself was no ground for dismissal. However, this would affect the remedy that is awarded to the applicant as in awarding a remedy the court must assess all the circumstances of the case to determine appropriate compensation. The court takes the continous period of time that the applicant served the respondent as a factor crucial in determining a remedy: Kaonga V Limbe Leaf Tobacco Company [Matter Number IRC 65 of 2002 (unreported)]. This was also the position of this court in He had worked for


Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: Section 65 (2) of the Labour Relations Act 1996.



Pronounced in Open Court this 22nd day of April 2005 at MZUZU.



R Zibelu Banda (Ms.)

CHAIRPERSON.