Mbewe v Bestobell (MW)Ltd (IRC 265 of 2004 ) (265 of 2004) [2006] MWIRC 105 (09 August 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 265 OF 2004


BETWEEN


MBEWE.. ………………………………………………………………… APPLICANT


-and-


BESTOBELL (MW) LTD ……………………………………………. RESPONDENT



CORAM: R. ZIBELU BANDA (MS) – CHAIRPERSON
Applicant; Present
Respondent; Absent no Excuse
Gowa; Official Interpreter


ORDER IN ASSESSMENT


Unfair dismissal-Substantive and procedural violation-Remedy-Section 63-Employment Act-Reinstatement-Court to consider reinstatement.


Background

The court found that the termination in this case was unfair on both substance and procedure because it did not comply with section 57 of the Employment Act. The applicant was dismissed without a hearing while he was admitted in hospital. The matter was set down for assessment of remedy. The respondent did not attend the assessment and no reason was given for failure to attend. The matter proceeded to hearing on the strength of section 74 of the Labour Relations Act.


The applicant prayed for the order of reinstatement because he could not secure alternative employment. Reinstatement is the remedy of first consideration in cases of unfair dismissal. A court must consider first the remedy of reinstatement before considering any other remedy, section 63 of the Employment Act.


ORDER


The court orders that the applicant be reinstated in his original position as a Security Guard. The applicant must be paid his arrears in salary from date of termination on 30 September 2004 to date of this order. This order is with immediate effect.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this order.


Pronounced this 9th day of August 2006 at Blantyre.



Rachel Zibelu Banda

CHAIRPERSON