Sisya v Fargo LTD (IRC 304 of 2003 ) (304 of 2003) [2005] MWIRC 53 (04 August 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 304 OF 2003


BETWEEN


SISYA………………………………………… ……………...APPLICANT


-and-


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



CORAM: R. Zibelu Banda, Chairperson

Makiyi, Kanyenda and Ngwira of Counsel; for Respondent

Applicant; present

Ngalauka; Official Interpreter



JUDGMENT

Dismissal- Reason-Misconduct-Bad attitude towards work-Failure to address acts of misconduct-Refusal to improve-Late reporting for work-Failure to attend meetings- Procedure- Right to be heard.


Facts

The applicant was dismissed by letter of 10 October 2003. The reason for termination was that it was not practicable to continue the employment relationship. The respondent raised concerns about the applicant’s performance and commitment to work. The applicant was asked to explain why his attitude towards work had deteriorated. He was also asked to make an undertaking that he would improve. Instead of the applicant responding to the concerns raised by his employer about misconduct which included failure to report for crucial meetings and failure to report for duties for unreasonable reasons, the applicant in his response stated that the issues raised were trivial and that the concerns raised did not warrant any written comments from him. Instead the applicant raised his own issues which he regarded as being more important and worthy discussing.


The Court’s assessment of the facts of the case is that this was an employment contract which had gone sour. It was not practicable to continue with such kind of relationship. The applicant could not reasonably have expected the respondent to consider his concerns raised in an internal memo exhibited as RP 3 when he himself was not prepared to consider the concerns raised by the respondent in a like memo exhibited as RP2. Above all, the applicant’s response to RP 2 was a clear indication of his bad attitude towards work and disrespect for authority.


The Law

It was held in Kelman V G J Oram [1983]IRLR 432 EAT, that: Once it has been established that the reason for dismissal was that it was impracticable for employment to continue and that this was a substantial reason for dismissal within the meaning of the law, in this case misconduct under section 57(1) of the Employment Act, it is extremely difficult to conclude that it was unreasonable for the employer to dismiss on this account.


In the instant case the applicant had misconducted himself through late reporting for duties, failure to attend crucial meetings and failure to present himself at his work place to supervise his subordinates. The applicant in addition to this misconduct refused in no uncertain terms that he was not prepared to change unless his conditions were met first. It is impossible to imagine any employer tolerating such kind of cheekness.


The respondent by memo of 6 October 2003 (RP2) sought to warn the applicant for his misconduct and also to secure an undertaking from him that he would improve. This was an employer who was prepared to work with someone who had in fact shown lack of commitment. It was expected that the applicant would consider the concerns of the employer and raise his own issues. This is what is termed loosely as collective bargaining, which must be encouraged and utilized at every opportunity. It is the attitude demonstrated by the applicant that puts off positive discussions towards building better, strong and healthy working relationships between management and workers.


Finding

It is the courts finding that it was not practicable to continue this employment relationship. It had to be terminated when it was. Since the applicant was paid all his dues under the contract, the respondent has no obligation to either continue this relationship or make any payments towards the applicant. This action is dismissed in its entirety.


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.


Pronounced in Open Court this 4th day of August 2005 at LIMBE.



R Zibelu Banda (Ms.)

CHAIRPERSON.