Court name
Industrial Relations Court
Case number
IRC Matter 8 of 2002

Shani v ESCOM (IRC Matter 8 of 2002) [2006] MWIRC 209 (25 June 2006);

Law report citations
Media neutral citation
[2006] MWIRC 209





IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI




PRINCIPAL
REGISTRY




MATTER
NO. IRC 08 OF 2002




BETWEEN




SHANI ………………………………………………………………….
APPLICANT






-and-




ESCOM ………………………………………………………………
RESPONDENT








CORAM: R. Zibelu Banda – Chairperson



Respondent;
absent without excuse

Applicant; present

Chinkudzu; Official
Interpreter






JUDGMENT




Dismissal- Procedure for dismissal –
Opportunity to be heard






Facts


The
Applicant was employed on 2June 1992 as Meter Reader. He
was dismissed on 7November 2001 for misappropriating
funds amounting to MK104 998-00. He was suspended in May 2001. On 6
August 2001 he was invited
for a hearing at the office. He refused to
attend the hearing since the matter was already in court. The
applicant was dismissed
after this refusal to state his case. The
applicant challenged the dismissal alleging that the reason was not
valid.




Issues


Whether
the termination was fair?



The Law


In the
matter of Nazombe V Malawi Electoral Commission [Matter
Number IRC 320 of 2002 (unreported)] it was found that the Employment
Act 2000 requires that substantive justice (reasons)
and procedural
justice (right to be heard) must be complied with in all dismissal
cases. Where the employer does not comply with
one of them or both,
the dismissal is deemed unfair.



Section 57
(1) of the Employment Act provides that: “The employment of and
employee shall not be terminated by an employer unless
there is a
valid reason for such termination connected with the capacity or
conduct of the employee or based on the operational
requirements of
the undertaking.”




Section 57
(2) of the Employment Act states: “The employment of an employee
shall not be terminated for reasons connected with
his capacity or
conduct before the employee is provided an opportunity to defend
himself against the allegations made, unless the
employer cannot
reasonably be expected to provide the opportunity.”




In this
case the Applicant was accorded an opportunity to be heard. He was
invited for hearing but he turned it down since the matter
was before
court. The applicant refused to avail himself to an opportunity to
vindicate himself therefore he can not be heard to
be complaining
about the reason being invalid. The hearing was an opportunity for
him to state his case and defend himself, see
Chima V Dimon Malawi
Limited
[Matter Number IRC 290/2004 (unreported)] where Khanum
V Mid-Glamorgan Area Health Authority
[1978]IRLR 215 EAT; was
cited and is quoted below:





There
are only three basic requirements of natural justice which have to
be complied with during the proceedings of a domestic
disciplinary
inquiry; first, that the person should know the nature of the
accusation against him; secondly, that he should be
given an
opportunity to state his case; and thirdly, that the disciplinary
committee should act in good faith.





In a case
of unfair dismissal, the employer needs to comply with the three
elements above which are also codified in the Employment
Act. In this
case the applicant was told the allegation against him, was invited
to a hearing but he refused this offer.




Findings


The court finds that the
respondent did comply with section 57 (1) by providing reasons for
dismissal. The respondent furthermore
invited the applicant for a
hearing in accordance with section 57(2). Since the respondent
complied with the law, this action is
dismissed in its entirety.




Terminal benefits



The applicant claimed
for severance allowance and notice pay. This was fair summary
dismissal for misconduct therefore the applicant
is not entitled to
any notice pay, section 59 and is not entitled to severance
allowance, section 35(6) of 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
26th day of June 2006 at BLANTYRE.






Rachel
Zibelu Banda


CHAIRPERSON