Court name
Industrial Relations Court
Case number
IRC Matter 37 of 2005

Changa v SS Rent A Car 2000 Ltd (IRC Matter 37 of 2005) [2006] MWIRC 145 (13 December 2006);

Law report citations
Media neutral citation
[2006] MWIRC 145

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI








PRINCIPAL
REGISTRY






MATTER
NO. IRC 37 OF 2005






BETWEEN




CHANGA...………………………………………………………………..
APPLICANT








-and-






SS RENT A CAR 2000 LTD……………………………………………RESPONDENT








CORAM: R. Zibelu Banda (Ms), Chairperson



Applicant;
Present

Respondent; Mrs Singh

Ngalauka; Official
Interpreter








JUDGMENT


Dismissal-Constructive
dismissal-Justification-Reason-Ill treatment in time of
Ill-health-Foul language-Burden of proof-Employee
to show that the
working conditions were too unbearable to continue with the
Employment relationship.






Background


The applicant was employed
on 28 January 2002 as Senior Accounts Clerk. He was dismissed on 22
January 2004. The reason for termination
was ill treatment during
time of Applicant’s illness. The Applicant stated that he was ill
for some time prior to his termination.
The Respondent was aware of
the illness but showed displeasure. When he reported back for duties
the Applicant was still recuperating.
However the Chairman of the
Respondent company, Mr Singh, upon seeing the Applicant hailed
insults and shouted at him. The Applicant
felt humiliated,
embarrassed and was saddened. He could not concentrate on his work or
perform his duties because the Chairman
persistently shouted at and
humiliated him. The Applicant found the environment too hostile to
continue working. He on 3 December
2003 tendered his resignation.




The
Respondent refused to accept the Applicant’s resignation accusing
him of failing to perform his duties and to meet Auditors’
demands.
The Applicant was thus forced to continue working under very hostile
conditions. However, on 22 January 2004 he received
a letter from the
Respondent accepting his resignation. The Respondent denied that they
ill treated and humiliated the Applicant.
They alleged that the
Applicant was failing to perform his duties.




The Court
was not satisfied with the Respondent’s assertions because if
indeed the Applicant deliberately failed to perform, the
Respondent
should not have waited for the Applicant to tender his resignation
for them to come up with such allegations. The Court
finds that the
Respondent’s assertions were merely meant to discredit the
Applicant further and deny him his right to fair labour
practice
through proper and humane treatment in times when his was feeling
unhealthy.




The
respondent did not appear to give evidence at the last date of
hearing. No excuse was given for failure to attend court. The
Court
noted that prior to this date of hearing the Respondent had applied
for and were granted four adjournments between September
2005 to
November 2006. It must be noted that throughout this time the
Applicant objected to the adjournments because he was not
well
physically and he wished that the matter could be concluded speedily.
The matter therefore proceeded to judgment even when
the Respondent
had asked for a further adjournment to call their last witness. One
witness for the Respondent had testified. The
matter proceeded on the
basis of section 74 of the Labour Relations Act that mandates this
court to proceed with hearing and disposal
of a case where a party
fails to attend without any valid reasons.


The Law


Section 57
of Employment Act provided for fair termination. Termination is fair
where the employee is given a valid reason for the
termination and
that where the reason relates to capacity or conduct, the employee is
afforded an opportunity to be heard. Termination
is also unfair if it
is constructive dismissal.




Constructive
dismissal

An
employee can claim that her resignation was not of her own volition
but was forced due to unreasonable conduct of the employer.
Where the
employer breaches a fundamental term of the contract, an employee is
entitled to repudiate the contract. The burden is
on the employee to
show that a fundamental term of contract was breached by the
employer, which made the continuation of the employment
contract
unreasonable, see section 61(3) of the Employment Act and Fernandes
V BIC Malawi (PTY) Ltd
[Matter Number IRC 308/2002
(unreported)].




In this
case the Court agrees with the Applicant that he was subjected to
such terrible conditions that he could not be expected
to continue
with his employment relationship with the Respondent. The Applicant
was treated inhumanely by the Chairman of the Respondent’s
company.
He was insulted, ridiculed and shouted at just because he was ill.



In
Palmanor Ltd V Cedron [1978]IRLR 303 EAT, the Employment
Appeal Tribunal, held that: Where an employee resigns because of an
employer’s foul language,
the Industrial Court/ Tribunal should ask
itself whether the employer’s conduct was so unreasonable that it
went beyond limits
of the contract. Although tribunals have to be
careful not to attach too great importance to words used in the heat
of the moment
or anger, there comes a time when the language is such
that even if the person using it is in a state of anger, an employee
cannot
be expected to tolerate it.




The
narration of the Applicant of the events, the conduct and words used
by the Chairman to him showed that this was the kind of
language that
went too far especially considering the condition of the Applicant at
the time. The fact that this was not a mere
manager but the Chairman
of the company insulting an employee also aggravates the
circumstances of this case.



The Court
noted that even in court proceedings, the Respondent’s
representative, Mrs Singh took no consideration of the Applicant’s

illhealth. She kept asking for adjournments even when she could
notice the physical deterioration of the Applicant’s health.
She
unkindly offered to take back the Applicant on condition that he the
Applicant was not going to ask for any leave. Implying
that the
Applicant should not fall sick or be bereaved all his working life
after reinstatement.



It is
strange and sad that there are people who do not accept realities of
life that include ill health and bereavement. Ill health
is not by
choice and it can happen to any person at any time especially when
one least expects it. In employment, ill health is
recognized as a
ground for granting an employee leave, or altering his working
conditions to accommodate his failing health or
dismissal. However
before dismissal the employer must show that the conditions set out
in the case below are satisfied.




In Phiri
v Sunbird Lodge
[Matter Number IRC 232/2002 (unreported)] it was
held that ill-health is not a valid reason for termination unless the
employer
can show that the employee was so incapacitated that he
could not perform any duties.



Whether an
employee is so incapacitated that he can not perform his duties or
any duties at all is a question that must be answered
by a certified
medical practitioner. There was no such certificate in this matter
nor was there an allegation of incapacitation
at the time that the
Applicant was in employment before he had tendered his resignation.



Therefore
in this case, the Applicant was physically fit to perform his duties
but his work environment was rendered unbearable
by the Respondent
who kept shouting at him and demoralizing him each time he wanted to
concentrate on his work.




Finding


Where an
employee proves on a balance of probabilities that the dismissal is
in fact constructive dismissal, the Court must find
that the
dismissal is unfair, see section 58 of the Act. The court finds that
the termination was unfair because it was constructive
dismissal
under section 60 of the Employment Act.




Remedy

The matter
shall be set down on a date to be fixed to consider an appropriate
remedy. Both parties are encouraged to attend the
assessment.




Any party
aggrieved by this decision is at liberty to appeal to the High Court
within 30 days of this judgment, in accordance with
section 65 (2) of
the Labour Relations Act.






Pronounced
in Open Court this
14th day of December 2006 at
BLANTYRE.








Rachel
Zibelu Banda

CHAIRPERSON