Banda v Raiply (MW) Ltd (IRC 65 of2003 ) (NULL) [2005] MWIRC 4 (22 April 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 65 OF 2003


BETWEEN


BANDA……………………………………… …………….......................APPLICANT


-and-

RAIPLY (MW) LTD…………………...………………...……………..RESPONDENT



CORAM: R. Zibelu Banda, Chairperson
Chirwa; of Counsel for Respondent
Applicant; present
Namponya; Court Clerk

ORDER

Dismissal- Justification-Reason-Misconduct-Absenteeism-Procedure-Right to be heard.


Upon hearing the applicant and the respondent the court finds that the applicant absented himself from work for four days without excuse. This was a contravention of the respondent’s rules and regulations governing employees. This misconduct has been held in this court to constitute valid reason for termination of employment as it is contrary to section 59 of the Employment Act 2000, see also: Chiutsi V Trustees of Malawi Against Physical Disability[Matter Number IRC 215 of 2001 (unreported)].


The applicant was not given an opportunity to explain why he was not reporting for duties. The respondent failed to comply with the procedure as demanded by section 57(2) of the Employment Act.


The court finds that the respondent had valid reason for dismissal but they failed to comply with the law by failing to afford the applicant the opportunity to be heard and defend himself before he was dismissed.


Therefore this action on unfair dismissal succeeds.


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.

In this case the court finds that the applicant had previous cases of misconduct involving dishonesty and failure to exercise proper authority over his subordinates. The applicant was demoted as a result of these acts of misconduct and incapacity.


It seems to this court that even if the applicant was to be given an opportunity to be heard he would have been dismissed any way. Under such circumstances the court has held that the successful applicant should not be compensated as he has lost nothing as a result of the dismissal since he would have been dismissed in any case: Kamasa V Bata Shoe Co Ltd [Matter Number IRC 235 of 2003 (unreported)].


The court finds that the applicant has lost nothing because he contributed to his dismissal. If the respondent had complied with the procedure the applicant would have lost his job anyway. No award of any remedy is made.


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.