Jana v Union Transport Malawi Ltd (IRC 38 of 200 ) (38 of 200) [2005] MWIRC 97 (08 December 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 38 OF 2004


BETWEEN


JANA……...……...……………...………………………………………… APPLICANT


AND


UNION TRANSPORT MALAWI LTD…………….......…….……….RESPONDENT



CORAM: Hon. R. Zibelu Banda (Ms) Chairperson

Tembenu of Counsel for the Respondent

Majamanda of Counsel for the Applicant

Chinkudzu; Official Interpreter


JUDGMENT

Dismissal-Reason-Ill health-Medical evidence-Employer to assess employee’s capacity through available medical evidence-Procedure-Right to be heard.


Facts

The applicant was employed as a Computer Clerk. He was responsible among other things for custody of petty cash. For sometime the applicant fell ill and was absent from work during this illness from July to November of 2003. On 26 November 2003 the applicant sought a meeting with management to discuss his employment position. At this meeting the applicant was not able to show through medical evidence that he was fit to resume work. In fact by this time the applicant was supposed to go for a further check up to determine his capability to work. The termination was based on the intermittent absenteeism for four months.


The Law

Section 46 of the Employment Act provides that an employer shall grant a sick employee atleast four weeks sick leave on full pay and another eight weeks sick leave on half pay. The interpretation of this provision in this court’s view is that an employee is entitled to 12 weeks sick leave in any year. Although the Act does not state what happens after the 12 weeks, the assumption is that after the 12 weeks, an employer has two options namely: (a) to retain the employee on employment but on unpaid sick leave (b) to terminate the employment after carrying out the necessary procedural requirements, including a hearing, see East Lindsey District Council V Daubney [1977] IRLR 181 EAT.


In the same case the Employment Appeal Tribunal (EAT) also held that the decision to dismiss or not is not a medical question but one to be answered by employers in the light of available medical evidence. It was established in this case that the only medical evidence available at the time that the applicant met with the respondent was that the applicant was not fit to resume work until he went for a further check up. The applicant’s evidence was that he did not have a medical certificate certifying his fitness to go back to work.


It is not surprising that the employer decided in this court’s view, rightly, to terminate the applicant’s employment. The applicant had exhausted his sick leave entitlement under the law. The respondent had even been lenient enough to grant the applicant much more than the recommended paid sick leave under the law. The respondent opted for termination on ground of incapacity only after the applicant had been incapacitated for close to four months.


Procedure

The applicant was given an opportunity to be heard on 26 November 2003. At this meeting the applicant had met management to discuss his situation. In light of the fact that the applicant had been ill, it was his duty to show that he was at this time fit to resume work. Since neither the applicant nor the respondent were medical practitioners, it was imperative for the applicant to produce a medical certificate as evidence of his fitness to work. The applicant did not have this certificate. The respondent had no choice but to terminate the employment after considering the previous intermittent absenteeism but also the fact that at this time they had decided to carry out an operational requirement to declare the applicant’s position redundant due to the continuance absenteeism. The court does not find any act of discrimination in the conduct of the employer, instead, the court is of the opinion that the respondent did all it could under the circumstances to assist the applicant but also to safeguard its operational interests.


Finding

It is this court’s finding that the dismissal was for reason of incapacity. The applicant was incapable of performing his duties due to ill health. This fact was not in dispute. The applicant was given an opportunity to be heard before his termination. The hearing was on 26 November 2003, the termination followed a month later. This action is dismissed.


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


Pronounced in Open Court this 8th day of December 2005 at BLANTYRE.



R Zibelu Banda (Ms.)

CHAIPERSON.