Changa v SS Rent A Car 2000 Ltd (IRC 37 of 200 ) (37 of 200) [2006] MWIRC 227 (14 December 2006);

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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