Court name
Industrial Relations Court
Case number
IRC Matter 127 of 2001

Mpinganjira v Telecom Networks Ltd (IRC Matter 127 of 2001) [2006] MWIRC 212 (31 July 2006);

Law report citations
Media neutral citation
[2006] MWIRC 212



IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY

MATTER
NO. IRC 127 OF 2001


BETWEEN



MPINGANJIRA…….………………………….………………………….APPLICANT


-and-



TEELCOM NETWORKS (MW)
LTD……………………………….RESPONDENT



CORAM: R. Zibelu
Banda; Chairperson

Ngwira; of
Counsel for the Applicant

Nkuna; of Counsel for the
Respondent

Ngalauka; Official
Interpreter







JUDGMENT


Dismissal-Justification-Reason-Incapacity-Probationary
employee-Who is probationary employee-Procedure-Hearing-Warnings.




Facts


The applicant was employed
on 6 February 1999 as Marketing Officer. He was a few weeks after
this appointment posted to Lilongwe
to work as Branch Manager. He was
on probation for six months. The probationary period was extended for
another six months. On
8 September 2000 he received communication of
termination of services through a letter of even dated. The reason
for termination
was performance and in accordance with clause 9.3.2
of the respondent’s conditions service. This clause refers to
termination
of employees on probation. There was no prior hearing or
consultation before the termination. The applicant alleged that this
termination
was unfairly carried out because he was not consulted 14
days after the probationary period that his performance was poor
therefore
according to clause 9.1.2 of the conditions of service he
was deemed to have been confirmed in his appointment. He therefore
asked
the court to find that the dismissal was unfair. The respondent
did not attend the proceedings in court although they put in a
defence in IRC Form 2, Statement of Response.








Issues


The first issue to
determine is whether the applicant was a probationary employee in
September 2000? The answer is no because in
accordance with the
respondent’s conditions of service the applicant was supposed to be
informed at the expiry of his probationary
period of his status
within 14 days, failing which he would be deemed to be a confirmed
employee. The respondent is bound by this
provision and the court
finds that the applicant was a confirmed employee. Even if it is
argued that the applicant was still on
probation, he was entitled to
a fair termination in keeping with the constitutional guarantees to
fair labour practices.




The second
issue is whether the termination was fair? A termination must comply
with rules of natural justice in order to be fair.
These rules are
codified in the Constitution.




The Law


The applicable law in this
matter is the Republican Constitution, which in section 31 provides
that every person has the right to
fair labour practices. Fair labour
practices entail the right to know the reason for dismissal and the
right to have an opportunity
to explain ones side and defend oneself.
See the Malawi Supreme Court of Appeal decisions in Chawani V.
Attorney General
(MSCA Civil Appeal No.18 of
2000(unreported)) and Blantyre
Netting Company V. Chidzulo
(MSCA Civil Appeal No.17 of
1996(unreported.)) These decisions are authorities for the
proposition that every person has the right
to be informed of the
reason for any adverse administrative decision. The reason must be
given before dismissal so that the employee
can state his case and
defend himself.



The burden
of proving the reason for termination is on the employer. It was thus
held in Earl v. Slater and Wheeler [1973] 1 WLR 51 that:





“It is for the
employer to show what was the principal or only reason for
dismissal…. and that it was a potentially valid reason….
If the
employer fails to discharge this burden, the tribunal must find that
the dismissal was unfair.”




In the
instant case the reason for dismissal was performance, the assumption
is that the applicant was not performing. This is a
reason relating
to the employees capacity and in such cases good industrial practice
demands that the accused employee must be
given an opportunity to
improve, provided with adequate assistance in the form of training,
counseling and he must be told that
failure to improve shall lead to
demotion or dismissal.



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
[1976] IRLR 420 EAT, 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.”





Warning
Procedure


Warnings are very important
in any organization. In A J Dunning & Sons (Shop
Fitters) V Jacomb
[1973]IRLR 206 NIRC, it was held that the
question of whether or not an employee was given a warning is not a
matter of procedure;
it is a matter of substance. Written warnings
will assist the employer where there is dispute as to the general
performance or
conduct of its employees. Warnings are also important
because they put the warned employee on guard. He has the opportunity
to
know his shortcomings and seek timely advice or assistance. The
warning must expressly state what the employer requires to change
and
the consequence of failure to change or conform to the requirements.



In the
instant case the applicant was ambushed with a letter of termination
without any warning relating to his performance. This
was a clear
violation of labour rights according to section 31 of the
Constitution, which provides for fair labour practices.




Finding


The evidence shows that the
respondent violated the applicant’s Constitutional right to fair
labor practice under section 31 by
not warning him in advance of his
incapacity and by failing to hear his side of the story and his
defence before termination. The
court accordingly finds that the
dismissal was unfair.


Assessment of Remedy


Where there is a finding
that dismissal was unconstitutional, the court is mandated to make
any orders that are necessary and appropriate
to secure the enjoyment
of the rights and freedoms granted under the Constitution. Section
46(3) of the Constitution provides:



“Where
a court ….finds that rights and freedoms conferred by this
Constitution have been unlawfully denied or violated, it shall
have
power to make any orders that are necessary and appropriate to
secure the enjoyment of those rights and freedoms…”




The court
held in Nkhwazi V Commercial Bank of Malawi (Civil Cause No
233 of 1999 (unreported)) at 11 of the transcript:





“The Constitutional
right to fair labour practice, in my judgment, entitles citizens of
this country, where the employer or employee
violates the right, to
a fair and adequate remedy.”




A date
shall be set down to assess an appropriate remedy. Any party
aggrieved by this decision is at liberty to appeal to the High
Court
on matters of law and or jurisdiction within 30 days of this
judgment.




Pronounced
this 1st day of August 2006 at BLANTYRE.




Rachel
Zibelu Banda


CHAIRPERSON


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