IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 303 OF 2002
MKUMBA . ... . APPLICANT
CHISAMBI TEA ESTATE .. . ... ...RESPONDENT
CORAM: R. Zibelu Banda (Ms): Chairperson
Thuwathuwa; Group Manager for the Respondent
Gowa,(Ms.); Official Interpreter
Dismissal-Justification for Dismissal- Reason-Burden of proof- Employer to show reason-Operational Requirements- Redundancy- Procedure for Redundancy-Consultation-Nature of consultation.
Upon hearing the applicant and upon hearing the respondent, the court finds that the applicant had her services terminated on grounds of redundancy. The respondent carried out a restructuring process in their clinic departments by closing down the clinic where the applicant was serving as nurse. The restructuring necessitated declaring her position redundant as there was no alternative employment or vacancy for her. The applicant was informed about the process. The burden of proving the reason for dismissal is on the employer, see section 61 of the Employment Act and Earl V Slater & Wheeler (Airlyne) Ltd  1WLR 51at 55. In the instant case the reason was justified with facts and was valid.
In section 43 of the Constitution and section 57(2) of the Employment Act, it is provided that every person shall be furnished with reasons for any administrative action that adversely affects him. The reasons must be furnished before that action is taken so that the affected person can respond, see Chawani V Attorney General [MSCA Civil Appeal No 18 of 2000 (unreported)]. In the instant case the court heard that the applicant was informed about the restructuring and that some positions including his would be declared redundant. The applicant did not raise any objections or issues. The court finds that the respondent followed the right procedure in declaring the applicants position redundant.
The court finds that the applicants termination was fair as it complied with good industrial practice relating to redundancies; see Machilinga V Commercial Bank of Malawi [Matter Number IRC 250/2003 (unreported)]. Also see Macheso V Stanbic Bank Ltd [Matter Number IRC 171/2005 (unreported)] IRC. This action is therefore dismissed in its entirety.
Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: Section 65 (2) of the Labour Relations Act.
Pronounced this 27th day of December 2006 at BLANTYRE.
Rachel Zibelu Banda