Makawa v Shire Bus Lines Ltd (IRC247 OF 20033 ) (NULL) [2005] MWIRC 60 (06 October 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 247 OF 2003


BETWEEN


MAKAWA……….………………………………………… ……………...APPLICANT


-and-


SHIRE BUS LINES LTD.. …………..…………………..……………..RESPONDENT



CORAM: R. Zibelu Banda, Chairperson
Applicant- present
Tukula; of Counsel for the respondent
Chinkudzu; Official Interpreter

JUDGMENT

Dismissal- Justification-Reason-Misconduct-Flouting company procedure-Failure to inspect bus-Procedure-Right to be heard.


Reason

Upon hearing the applicant and the respondent; the court finds that the applicant flouted company procedure by failing to inspect a bus, its conductor and money on the conductor. This according to the respondent was an act of incapacity as it showed a failure on the part of the applicant to perform his official functions. Such conduct therefore has been held to constitute fair reason for termination, but only where the incapacity is such that the employee can not change for the better or where that one act of incapacity is such that it would have adverse impact on the operations of the employer, for example, where the incapacity led to loss of life or a threat to life, see Alidair Ltd V Tylor [1976] IRLR 420 EAT, cited in Chibaya V Population Services International [Matter Number IRC 12/2000 (unreported) holding that:

“There are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure from that standard so serious, that one failure to perform in accordance with those standards is enough to justify dismissal. The passenger carrying airline pilot, the scientist operating the nuclear reactor, the chemist in charge of research into the possible effect of thalidomide, etc are all in the situation in which one failure to maintain the proper standard of professional skill can bring about a major disaster.”


In the instant case the respondent did not show any adverse effect on the respondent’s operations brought by the failure to perform on one occasion for the two years that the applicant had been in the respondent’s employment. The court finds that the reason was not valid enough to warrant termination of employment. The applicant should have been warned to improve or should have been given some lighter punishment to fit the offence, see Chigwenembe V Tafika Civil Engineering and Building Contractors [Matter Number IRC 124/2003 (unreported)].


Procedure

The applicant was given an opportunity to explain his side and defend himself. However, as found above, the reason for termination was not valid.


Finding

The court finds that the applicant had his services terminated for invalid reasons. The punishment for incapacity on one occasion which did not involve a matter of life or death should have been a warning or some other sanction to fit the offence. The termination was unfair and this court so finds.


Assessment of remedy

The applicant prayed for the remedy of reinstatement. The matter shall be set down to consider the remedy of reinstatement. Both parties shall be required to appear for hearing on the date fixed for assessment of remedy.


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 6th day of October 2005 at Limbe.



R Zibelu Banda (Ms.)

CHAIRPERSON.