Mlombwa v Agora Ltd (IRC 1 of 2004 ) (1 of 2004) [2005] MWIRC 61 (06 October 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 01 OF 2004

BETWEEN

MLOMBWA………………………………………………………………APPLICANT

-and-

AGORA LTD……………………………………………........................RESPONDENT
CORAM: R. Zibelu Banda, Chairperson
Dr. Mtambo: of Counsel for the applicant
Chinkudzu; Official Interpreter
K. Johansen: Research Assistant (Intern)
Respondent was absent with no excuse.


JUDGMENT

Dismissal-Justification-Reason-Procedure- Opportunity to be heard-Reasons to be communicated-Right to be heard to constitute a confrontation on the allegations forming reason for dismissal.


Facts

The applicant was employed from 1 May 1999 to 24 November 2004 when he was dismissed. His contract was terminated for following reasons: Rude to customers and staff; closed the depot without permission; and refused to be reprimanded by superiors.


Assessment of Facts

The applicant testified and he explained what happened in relation to the alleged reasons for dismissal as follows:

Being rude to customers and staff

He states that he was never told that he was rude; he never had a hearing on this allegation.

Closing the depot without permission

To this accusation he states that he closed the shop because the Regional Manager told him to buy termic to kill rats. ‘I was authorized to close early’ he said. The depot was closed for 22 minutes. This was on 23 of September 2003.

Refusing to be reprimanded by superiors

He states that he never refused to be reprimanded by his superiors. He was never confronted on this allegation.


Issues

The court is called upon to decide whether the dismissal was fair or unfair. In determining this question the court must look at the reasons for the dismissal, whether they are valid and justify the respondent’s action. The court must also look at the procedures that were used before, during and after termination.


Sources of the law

The cause of action arose in January 2004, therefore the Employment Act 2000 apply and shall be used where necessary. The Constitution is the supreme law of the land. However, in this case it can only be applied where the Employment Act is inadequate or contains provisions that are inconsistent with the Constitution. Common law and case law shall be used to interpret and support the statutory provisions, since the law in this court is just developing. It is also the practice in common law jurisdictions to illustrate statutory provisions with case law and text books by renowned authors.


In the matter Nazombe V Malawi Electoral Commission [Matter Number IRC 320 of 2002(unreported)] it was found that the Employment Act 2000 requires substantive justice (reasons) and procedural justice (right to be heard). Where the employer does not comply with one of them or both, the dismissal is deemed unfair. The position therefore is that at times a termination may be lawful but unfair because the employer did not follow the statutory requirement under section 57 of the Employment Act.


Section 57(1) of the Employment Act provides that: ‘The employment of and employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking’.


The burden is on the respondent to show that the reason for dismissal was valid. In this case the respondent did not appear to justify the reasons for dismissal. The allegations were denied by the applicant and in the absence of the respondent to show that the reasons were valid, the court finds that there were no valid reasons for dismissal.


Section 57(2) of the Employment Act states: ‘The employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is

provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity’.


The facts were clear that the applicant was not afforded an opportunity to defend himself or explain his side of the story before an impartial body or authority constituted for that purpose. Affording an opportunity to be heard is wider than a one to one ‘discussion’ between the offending employee and the supervisor. The discussion that the applicant had with Mr. Sohal does not constitute the right to be heard envisaged under section 57(2).


In the case of Fair mount Investments Limited vs. Secretary of State (1976) 2All ER 865, it was stated that if a party is adversely affected by any evidence and is given the right to comment on that evidence, the principle of right to be heard is complied with.


In the case of Benjamin Khoswe vs. National Bank of Malawi [ Civil Cause Number 718/2002 (unreported)] HC, it was stated that where facts of a case are in dispute, it is necessary to give an oral hearing to satisfy the rules of natural justice or the duty to act fairly. A fair hearing becomes the employer’s justification for termination of employment where there is a disagreement of facts. The duty to apply principles of natural justice does arise beyond the broader principle that where one is to affect another’s rights adversely for a reason, the other reasonably expects to be satisfied of the reason. The hearing must be fair and not predetermined. In the hearing the allegations must be outlined to the applicant and he must be asked to answer to the allegations separately.


Finding

The court finds that the respondent did not comply with section 57(1) of the Employment as the reasons were not valid and not justified. The respondent furthermore failed to comply with section 57(2) and according to section 58 of the Employment Act, a dismissal must comply with section 57 in order for this court to rule in favor of the respondent. Since the respondent failed to comply with the Employment Act as stipulated above, the court finds that the dismissal was unfair.


Remedies

Where the court finds that a dismissal is unfair, it shall endeavor to provide a suitable remedy. See section 63 of the Employment Act.


Assessment of Remedy

The court shall assess a suitable remedy in chambers on a date to be fixed.


Terminal Benefits

The court awards the applicant severance allowance for four years, accrued leave pay MK1077-00 and MK12 000-00 being commission earned. The above terminal benefits to be calculated and paid into court within 7 days of this order.


Certificate of service from ADMARC- The respondent is further ordered to deliver to the applicant through this court within seven days the applicant’s certificate of service from ADMARC, which is in the respondent’s possession.


Any party aggrieved by this decision is at liberty to appeal to the High Court on matters of law and or jurisdiction only within 30 days of this judgment.


Made in Open Court this 6th of October 2005 at LIMBE



Rachel Zibelu Banda

CHAIRPERSON