Kaulembe v Lilongwe City Assembly (IRC 229 of 2004) (229 of 2004) [2005] MWIRC 47 (02 June 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


LILONGWE REGISTRY


MATTER NO. IRC 229 OF 2004


BETWEEN:


KAULEMBE………………………………………………. APPLICANT


-and-

LILONGWE CITY ASSEMBLY………………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicant- present

Respondent- Nyasulu of Counsel

Mpakani, Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason- Misconduct-Fraud?-Failure to produce evidence of qualifications-Procedure-Right to be heard and defend oneself.


Facts

The respondent employed the applicant on 1 November 1991. He was dismissed on 20 November 2003. The reason for dismissal was that the applicant was not able upon request to produce documentary evidence of his academic qualifications in the form of original degree certificate in his field. The applicant was given an opportunity to produce his certificate, upon failure to produce it within the specified time, the applicant was asked to explain the omission after his explanation, and the respondent terminated the services of the applicant.


The applicant challenged the dismissal alleging that the employer had a duty to source the original certificate for the applicant, therefore the dismissal was unfair. The respondent on the other hand averred that it was a condition of employment for the employee to produce documentary evidence of qualifications. Where an employee failed to produce such evidence within three months the employee’s employment is terminated; exhibit “RP5” Clause 32 (1) and (2), being Malawi Local Authorities Service Commission (LASCOM) Regulations, 1994.

The Law

Reason

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 employer, see section 61 (1) of the Employment Act, which provides that:


“In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair.”


In Earl v. Slater and Wheeler (Airlyne) Ltd [1973] 1 WLR 51 at 55, it was held that:


“It is for the employer to show what was the principal or only reason for dismissal and that it was a potentially valid reason. If the employer fails to discharge this burden, the tribunal must find that the dismissal was unfair.”


In the instant case the court heard that the applicant was required under the terms and conditions of employment to produce documentary evidence of academic qualifications which he purported to possess. At the expiry of the prescribed time, the applicant was not able to produce the documents. The respondent feared that the applicant might have gotten employment and subsequent promotions fraudulently by representing that he held certain qualifications which he in fact did not possess. The burden was on the applicant to prove that he had the qualifications by their production. He failed. This was prima facie valid reason for dismissal and the court so finds.


Procedure

However before an employer can carry out any dismissal or adverse action against an employee, the employer is required by law to afford the employee an opportunity to explain his side and defend himself, see section 57 (2) of the Employment Act and also see; Polkey V A E Dayton Services Ltd, [1987]3 All ER 974 at 983-984 holding 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 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.”


In the instant case the court heard that the respondent through the Chief Executive engaged the applicant in a number of verbal and written communications on the issue. The applicant was given the required time to comply with the regulation. The applicant was reminded on several occasions until the Chief Executive held a meeting with the applicant on the same issue. The applicant had no satisfactory explanation to his failure to produce the documentary evidence of his certificate and hence the dismissal.


Finding

The court finds that the respondent complied with the law. The applicant knew the reason for dismissal. He was given an opportunity to be heard. The court has no basis on which to interfere with the decision of the respondent. The action is accordingly dismissed in its entirety.


Any party not satisfied with this decision is at liberty to appeal to the High Court in accordance with section 65 (2) of the Labour Relations Act within 30 days of this date.


Pronounced in open court this 2nd day of June 2005 at Lilongwe.



R. Zibelu Banda (Ms.)

CHAIRPERSON.