Masangano v FARGO (IRC 162 of 2002 ) (162 of 2002) [2005] MWIRC 43 (31 May 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


LILONGWE REGISTRY


MATTER NO. IRC 162 OF 2002


BETWEEN:


MASANGANO……………………………………………………………. APPLICANT


-and-

FARGO LIMITED…………….………………………………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicant- present

Respondent- Absent

Mpakani, Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason- Incapacity-Absenteeism-Procedure-Right to be heard and defend oneself-Burden of proof-Employer to show reason for dismissal-Employer to show that procedure was followed-Proof on a balance of probabilities.

FACTS

The respondent employed the applicant in July 1996. He was dismissed in October 2001 for reasons relating to his capacity due to illhealth and generally failure to meet targets and conduct; namely absenteeism. The applicant challenged the dismissal on ground that the reasons were not valid and that he was not given an opportunity to be heard and to confront his accusers.

The respondent did not attend court despite indications that the notice of hearing was sent to their office through the post office attentioned to the Personnel Manager. There was no excuse for failure to attend court. It was therefore not in the interests of justice to postpone the case as adjourning the matter would be prejudicial and unfair to the party that attended. In such situations the matter must proceed in the absence of the other party, see section 74 of the Labour Relations Act.


THE LAW

The applicable law in this matter is the Employment Act and the Constitution, which in section 31 provides that every person has the right to fair labour practices. Fair labour practices entail the right to know the reason for dismissal and the right to have an opportunity to explain ones side and defend oneself. See, section 57 (1) and (2) of the Employment Act.


The burden of showing the reason for dismissal and that it was a valid reason is on the respondent, see section 61 of the Employment Act, also see Earl V Slater and Wheeler In this case the respondent did not attend court to show on a balance of probabilities that the allegations leveled against the applicant were indeed founded and that the applicant was treated fairly.


Reason

The applicant stated that he was never absent from work as alleged in the statement of response. He also averred that it was not true that he had misconducted himself at any time or indeed that he was incapable of performing his duties due to illness or otherwise. The court takes the applicant’s assertions and finds that there was no valid reason for dismissal.


Procedure

There is no indication from the respondent that they gave the applicant an opportunity to be heard or to defend himself against whatever allegations that led to his dismissal. In Polkey V A E Dayton Services Ltd [1987]3 All ER 974 at 983-984, it was held; per Lord Bridge of Harwich that:


“An employer having prima facie grounds to dismiss ……will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’, which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of incapacity, an employer will normally not act reasonably unless he gives the employee fair warning to mend his ways and show that he can do the job and in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation”


FINDING

The evidence shows that the respondent did not comply with fair labour practices under the Constitution and they failed to adhere to provisions of section 57 of the Employment Act. Therefore the court finds that the dismissal was unfair.


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 labour practices. A remedy shall be assessed on a date to be fixed.


OVERTIME

The applicant must specifically prove the claim for overtime dues. Overtime is earned and the onus is on the applicant to show when and how he accrued the overtime and how much he is claiming.


Any party not satisfied with this decision has the right of appeal to the High Court in accordance with section 65 (2) of the Labour Relations Act within 30 days of this order.


Pronounced in open court this 31st day of May 2005 at Lilongwe.



R. Zibelu Banda (Ms.)

CHAIRPERSON.