Amadu-Ali v Nationwide Transport (Kalarie Workshop) (IRC 401 of 2003 ) (401 of 2003) [2005] MWIRC 48 (03 June 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


LILONGWE REGISTRY


MATTER NO. IRC 401 OF 2003


BETWEEN:


AMADU-ALI………………………………………………. APPLICANT


-and-

NATIONWIDE TRANSPORT (KALARIA WORKSHOP)……………………………………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicant- present

Respondent- Absent

Mpakani, Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason-Lodging a complaint against employer-Section 57 (3) (g) Employment Act-Procedure-Right to be heard.

Facts

The respondent employed the applicant in April 1998. He was dismissed for lodging a complaint against the employer. The applicant challenged the dismissal on the ground that he had not committed any offence by asking the court to intervene in his misunderstanding with the employer.

The respondent did not attend court despite indications that the notice of hearing was delivered to them. 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 have been prejudicial and unfair to the applicant. In such situations the matter must proceed in the absence of the other party, see section 74 of the Labour Relations Act providing that if a party fails to attend or to be represented at the proceedings of the Industrial Relations Court without good cause, the Industrial Relations Court may proceed in the absence of that party or representative.


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.


Reason

The burden of showing the reason for dismissal and that it was a valid reason is on the respondent, 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 applicant told court that he had some misunderstandings with the employer. After failing to resolve the problems, the applicant lodged a complaint with the court. When the employer received the court summons they proceeded to dismiss the applicant.


The Issue

The issue was whether the lodging of a complaint against an employer is ground for dismissal.


The law on the issue is section 57 (3) (g) of the Employment Act which provides that:


(3)The following reasons do not constitute valid reasons for dismissal or for the imposition of disciplinary action-

(g) the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws, regulations or collective agreements.


Finding

The court finds that the respondent did not have a valid reason for dismissing the applicant, also see Monjedza V Cas Security Services [Matter Number IRC 166 of 2003 (unreported)]. Therefore the dismissal was unfair and the court so finds.


Assessment of Remedy

The matter shall be set down on a date to be fixed for assessment of appropriate compensation under section 63 of the Employment Act. The applicant must bring evidence of financial loss, and he is encouraged to seek free legal advice on the heads of compensation and the standard of proof required in such claims.


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 3rd day of June 2005 at Lilongwe.



R. Zibelu Banda (Ms.)

CHAIRPERSON.