IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 60 OF 2005
MBVUNDULA ....... . APPLICANT
LIMBE LEAF TOBACCO COMPANY LTD .. RESPONDENT
CORAM: R. Zibelu Banda (Ms), Chairperson
Chikungwa; Legal Counsel for the Respondent
Ngalauka; Official Interpreter
Dismissal- Justification for dismissal- Reason- Incapacity-Procedure-Right to be heard and defend oneself- Disciplinary action- Warning Procedure.
Upon hearing the applicant and upon hearing the respondent, the court finds that the applicant was employed on probation. His performance was assessed and found to be unsatisfactory. The applicant was advised to improve through extension of his probation period but he did not. One contributing factor for failure to improve was his lack of attention to detail, resistance to training and failure to work as a team. The applicant was transferred to another section in order to accommodate his adequacies, but he refused to take up training for his new posting and no valid reason was given for such misconduct.
It is only in serious acts of incapacity that an employee can be dismissed without being given an opportunity to improve. In Alidair Ltd V Tylor  IRLR 420 EAT, cited in Chibaya V Population Services International [Matter Number IRC 12/2000 (unreported)] the Employment Appeal Tribunal held that:
There are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure from that standard so serious, that one failure to perform in accordance with those standards is enough to justify dismissal. The passenger carrying airline pilot, the scientist operating the nuclear reactor, the chemist in charge of research into the possible effect of thalidomide, etc are all in the situation in which one failure to maintain the proper standard of professional skill can bring about a major disaster.
In the instant case, the applicant was given several warnings to improve, he was offered training and was transferred to a different section where he was expected to perform. All these interventions did not help and therefore this termination on incapacity was justified.
The respondent complied with section 57 of the Employment Act. This action is dismissed in its entirety. A party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.
Pronounced this 2nd day of October 2006 at BLANTYRE.
Rachel Zibelu Banda