IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 53 OF 2004
MULOLE . APPLICANT
OF ORPHANS COMMUNITY CARE
- CORAM: R. ZIBELU BANDA (Ms); CHAIRPERSON
- Malijani; Employers Panellist
- Kajombo; Employees Panellist
- Applicant; Present
- Respondent; Absent no excuse
- Gowa; Official Interpreter
Dismissal-Reason-Employer to provide reason-Reason to be valid
Burden of proof-Employer bears of burden of proof in dismissal cases-Employer to show reason and justify it
Procedure-Hearing-Employer to provide employee with opportunity to be heard
The applicant was employed on 2 January 2002. He was dismissed on 8 February 2003. He alleged that he had his services terminated on allegations that he was going out with other peoples wives, unsatisfactory performance, drunkenness and poor dressing. He further averred that he was not given any opportunity to defend himself and that the letter of dismissal was dropped at his home while he was at the office. He feels the dismissal was unfair because he was supposed to be given a warning and a right to be heard.
The applicant claimed the following specific claims:-
External allowance and pocket money for an official trip he made to Zambia amounting to K274 00-00.
Reimbursement of fuel amounting to K4 651-00
Reimbursement of bus fares from Blantyre to Lilongwe and back at K415-00 per trip.
Reimbursement of bus fare to and from Lusaka at K2 400-00 per trip.
Certificate of Attendance for the training in Lusaka.
His picture on the identity card which he surrendered to the Respondent.
Compensation for unfair dismissal.
The respondent did not attend court. A notice of hearing was sent to them. In the absence any reason for failure to attend court, the court invoked the provisions of section 74 of the Labour Relations Act and proceeded to hear the applicant.
In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair, see section 61 of the Employment Act. In this matter the court heard that the applicant was dismissed on several allegations outlined above. The respondent did not attend court to show court whether, how and why these were acts of serious misconduct warranting dismissal. The respondent did not show court whether the applicant had been warned before for similar or any misconduct. The respondent did not substantiate the reasons before court. If substantiated the conduct of the applicant may be ground for dismissal
Further, section 57(2) of the Employment Act 2000 provides that before a dismissal an employee must be given an opportunity to be heard. He must be allowed to explain his side of the story defend himself and make any submissions in mitigation. This is to ensure that a decision made does not unnecessarily adversely affect the employee. It is aimed at protecting employees from unilateral dismissal without any valid justification.
In this case the applicant may have conducted himself in a manner that may have warranted disciplinary action. If substantiated the conduct of the applicant may be ground for dismissal. However before any termination is effected the employer is obliged by law to give the employee a chance to explain his side. In this case as alluded to above, such opportunity was not given. There was no evidence to suggest that the applicant was heard. This made the termination unfair.
- The court finds that the respondent violated the law more especially section 57(2) of the Employment Act 2000. The termination was unfair because the respondent did not give the applicant an opportunity to be heard.
The applicant had worked for one year. He is therefore entitled to compensation for unfair dismissal to be assessed. The applicant made further claims for transport reimbursement, fuel and subsistence allowance and leave grant. These are specific claims which must be specifically pleaded and proved. There was no proof that the applicant had incurred the above expenses or that he was owed the above allowances. These claims therefore fail.
The applicant further asked for his Certificate of Attendance. The court allows this claim. The respondent must give the applicant his Certificate of Attendance. The applicant further pleaded for his Identification photograph which the respondent retained. This claim is also allowed. The Identification photo to be returned to the applicant with immediate effect.
Any party dissatisfied with this decision is at liberty to appeal to the High Court in accordance with the provisions of section 65 of the Labour Relations Act.
Pronounced this day 30th day of January, 2008 at BLANTYRE.
Rachel Zibelu Banda
Nick Chifundo Kajombo