Mwapasa v Crown Fashions Ltd (IRC 121 of 2005) (121 of 2005) [2005] MWIRC 76 (21 November 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 121 OF 2005


BETWEEN


MWAPASA………………….….………………………………………… APPLICANT


AND


CROWN FASHIONS LIMITED…….…………….…………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms) Chairperson

Applicant: Present

Chima, for the Respondent

Chinkudzu; Official Interpreter


ORDER

Employment-Contract-Termination-Reason-Incapacity-Warning-proof of warning-Procedure-Right to be heard.


Upon hearing both parties to this case and upon going through the court record, the court finds that the applicant was employed as Driver but was later advised to perform duties of Stores Supervisor and work in capacity of Personnel Officer, which he performed from July 2004. The applicant was allegedly suspended in March 2005 and has not been reinstated to date. The applicant’s claim is for salary from the time he was elevated to Personnel Officer to date of judgment; notice pay and compensation for unfair dismissal.


The respondent averred that the applicant was dismissed in February 2005. The applicant was dismissed for incapacity. The respondent stated that the applicant had a meeting about his incompetence with respondent’s Managing Director. However the applicant alleged that he was not aware of the termination.


The Law

The Employment Act section 57 provides that before any termination for reasons connected to a person’s capacity, he must first be given a reason for the termination and he must be given an opportunity to explain his side and defend himself. The burden of giving reason for termination is on the employer; section 61 of the Employment Act. It is also the duty of the employer to see to it that in all circumstances it handled the matter of the employee with fairness.


An assessment of this case, shows that the Managing Director for the respondent found some shortcomings in the applicant. It was said that the applicant was advised to improve but apparently the applicant did not improve. The Managing Director then had an audience with the applicant to discuss the issue of the applicant’s incompetence. The termination was by letter after this discussion.


The respondent however did not show the court the nature of the incompetence complained about. The respondent did not show how the applicant’s incompetence affected its operations. The respondent did not itemize the issues complained of as acts of incompetence warranting a termination.


This court has heard that in cases of incapacity the employer must show that the employee knows of his weaknesses and that he was warned to improve or else he would be dismissed. It is only in cases of serious cases of incapacity that a dismissal is effected without giving the employee an opportunity to improve, see Chibaya v Population Services International [Matter Number IRC12/2000 (unreported)]. In this case as found above, the incompetence was not shown neither its effects on the respondent’s operations.


Finding

It is the court’s finding that termination in this case was unfair. The reason was not valid and that applicant was not given ample time to improve if at all he was incompetent in the performance of his duties.


Assessment of compensation

The matter shall be set down on a date to be fixed for assessment of compensation and for assessment of the applicant’s other claims.

Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this date. Appeals lies only on matters of law or jurisdiction, section 65 (2) Labour Relations Act 1996.


Pronounced in Open Court this 21st day of November 2005 at BLANTYRE.




R Zibelu Banda (Ms.)

CHAIPERSON.