INDUSTRIAL RELATIONS COURT OF MALAWI
NO. IRC 188 OF 2005
REGISTERED TRUSTEES OF MALAMULO HOSPITAL
- CORAM: R. ZIBELU
BANDA (MS); CHAIRPERSON
Hara; of Counsel
for the Applicant
Reason-Burden of proof-Onus is on the employer to show a reason for
dismissal-Reason must be valid-Where reason is not
of unfairness-Section 61 Employment Act.
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.
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.
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.
reasons given for dismissal were not clear-cut valid reasons
expressed in the law. These were grounds which the employer is
obligation to prove on a balance of probabilities in court.
absence of such proof, the court finds that the reasons for the
applicants dismissal were not valid. The dismissal violated
provision of section 57 (1) of the Employment Act. This action
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.
this 11th day of August2006 at