Mpinganjira v Telecom Networks Ltd (IRC 127 of 2001 ) (127 of 2001) [2006] MWIRC 212 (01 August 2006);

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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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