Dagalasi v Four Season Nursery (IRC 85 of 20044 ) (85 of 20044) [2005] MWIRC 50 (03 June 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


LILONGWE REGISTRY


MATTER NO. IRC 185 OF 2004


BETWEEN:


DAGALASI…………………………………………………. APPLICANT


-and-

FOUR SEASON NURSERY……………………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicant- present

Respondent- Absent

Mpakani, Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason-Negligence-Taking unlawful instructions-Procedure-Right to be heard.

Facts

The respondent employed the applicant in 2001. He was dismissed on 27 May 2004. The reason for dismissal was that the applicant who was a Carpenter worked on a site before the concrete had dried up thereby damaging the site. The excuse for working on a site when it was not ready was because the applicant had been forced by his boss to do the work.

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

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 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 respondent did not attend court to show on a balance of probabilities a valid reason for dismissal. However from what the applicant told court, he admitted that he had done work on a site when it was not ready. He was negligent but only because he had been forced to by his boss.


The court fails to understand how a Carpenter who knew his work would be forced to perform a bad job which would end up damaging only the site but also his reputation. The instruction if any, was unlawful and the applicant should not have taken it. The court finds that the applicant was negligent and therefore the respondent had a valid reason for which to take disciplinary action. The law protects only those who take lawful instructions, see section 59 of the Employment Act and also see; Bwanali V Southern Bottlers Ltd [Matter Number IRC 250 of 2003 (unreported)].


Procedure

However before any adverse action is taken against an employee, the employer must afford the employee an opportunity to explain his side and defend himself, in accordance with section 57(2) of the Employment Act. In the instant case the applicant told court that he was not heard. In the absence of the respondent to contradict the applicant, the court finds that the applicant was not heard before his dismissal. The applicant right to fair labour practices under section 31 of the Constitution and the Employment Act was violated.


Finding

The court finds that the respondent did not comply with the law before dismissing the applicant, 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.