Banda v Registered Trustees of Malamulo Hospital (IRC 188 of 2005) ( of ) [2006] MWIRC 108 (11 August 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 188 OF 2005


BETWEEN


BANDA …………………………………………………………………… APPLICANT


-and-


REGISTERED TRUSTEES OF MALAMULO HOSPITAL ……… RESPONDENT



CORAM: R. ZIBELU BANDA (MS); CHAIRPERSON
Hara; of Counsel for the Applicant
Respondent; Absent – No Excuse
Chinkudzu; Official Interpreter


JUDGMENT

Dismissal- Reason-Burden of proof-Onus is on the employer to show a reason for dismissal-Reason must be valid-Where reason is not shown presumption of unfairness-Section 61 Employment Act.


Introduction

The issue in this case concerned the applicant operating a business parallel to that of the respondent, using respondent time, equipment and premises a conduct alleged to be in conflict of interest. The applicant denied the allegations and informed court that it was in fact a practice in the medical profession to carry out parallel businesses during off duty hours or holidays. The applicant stated that he used his own equipment, time and premises.


The Law

In a dismissal case the onus is on the employer to show a reason for dismissal and that it was a valid reason, see section 61 Employment Act, that provides that “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 presumption that the dismissal was unfair”.

In this case the respondent did not attend court to provide and prove the reason and show that it was a valid reason. No reason was given for failure to attend court. The court invoked provisions of section 74 of the Labour Relations Act and proceeded to dispose the matter in the absence of the respondent.


The reasons given for dismissal were not clear-cut valid reasons expressed in the law. These were grounds which the employer is under obligation to prove on a balance of probabilities in court.


In the absence of such proof, the court finds that the reasons for the applicant’s dismissal were not valid. The dismissal violated provision of section 57 (1) of the Employment Act. This action therefore succeeds.


Assessment

The matter shall be set down on a date to be fixed for assessment of appropriate remedy under section 63 of the Employment Act. Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 11th day of August2006 at Blantyre.






Rachel Zibelu Banda

CHAIRPERSON