Court name
Industrial Relations Court
Case number
IRC Matter 188 of 2005

Banda v Registered Trustees of Malamulo Hospital (IRC Matter 188 of 2005) [2006] MWIRC 108 (10 August 2006);

Law report citations
Media neutral citation
[2006] MWIRC 108







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 11
th day of August2006 at
Blantyre.












Rachel
Zibelu Banda


CHAIRPERSON