Singa v Malawi Lake Services (IRC 03 of 20033 ) (03 of 20033) [2005] MWIRC 38 (22 April 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 103 OF 2003


BETWEEN


SINGA...……………………………………… …………….......................APPLICANT


-and-

MALAWI LAKE SERVICES LTD…...………………...……………..RESPONDENT



CORAM: R. Zibelu Banda (Ms.); Chairperson
Nyirongo (Ms.); of Counsel for Applicant
Katumbu; representing the respondent
Namponya; Official Interpreter


ORDER

Dismissal- Justification-Reason-Misconduct-Negligence-Procedure-Investigations-Right to be heard.


Upon hearing the applicant and the respondent, the court finds that there was an allegation of negligence perpetrated by the applicant in the course of carrying out his duties. This alleged negligence led to loss of MK400 000-00 through some activities concerning the handling of World Food Programme Cargo.


The respondent inquired into the handling of this cargo, and instituted an investigation. The applicant was sent on leave to pave way for the investigations. However before the results of investigations were released and made available to the applicant, the respondent terminated the applicant’s contract of employment on ground of “ measures to improve on the company’s performance and streamline operation”.


When the respondent appeared in court for their case, they informed court that the reason for dismissal was gross negligence. This is also the reason they gave on the IRC Form 2; the statement in response to the applicant’s statement of claim in IRC Form 1.


The respondent did not make any connection between the investigations that were pending into alleged negligence and the reason given in the letter of termination. The burden of proof on reason for dismissal is on the employer: Section 61 of the Employment Act. The respondent was therefore under legal obligation to show on a balance of probabilities that they had a main reason for dismissal and that the reason was a valid ground for dismissal: Earl V Slater and Wheeler (Airlyne) [1973]1 WLR 51.


In the instant case the respondent was not able to show the main reason for dismissal. The letter of dismissal said one thing but the response to court summons said something else and the connection between the two was not highlighted for the court to assess whether the reason was valid or not.


Under the circumstances the court finds that the respondent had no valid reason for dismissal. Therefore the dismissal was unfair, as it contravened section 57(1) of the Employment Act.


Further, the respondent conducted an investigation to establish whether or not the applicant was responsible for the loss to the company through mishandling of certain cargo. The results of this investigation were never made available to the applicant nor was he invited to a hearing to be informed of the findings of the investigations and that if the applicant had been found responsible for the loss through negligence, he could explain his side and defend himself.



The applicant was not given an opportunity to explain his side on the allegations of negligence, which in any case were not the grounds for dismissal, as the law requires that the reason for dismissal must be told to the employee before the dismissal so that he could defend himself: Chawani v Attorney General [MSCA Civil Appeal Number 18 of 2000 (unreported)]. The respondent failed to comply with the procedure as demanded by section 57(2) of the Employment Act.



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 the remedy is not automatic and is not uniform as the remedy will always depend on the circumstances of the case. Since no evidence was adduced as to the applicant’s loss, the matter for assessment shall be set down on a date to be fixed.


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.