Kunsauka v Bata Shoe Co. Ltd (IRC 92 of 2002 ) (92 of 2002) [2006] MWIRC 29 (24 March 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 92 OF 2002

BETWEEN

KUNSAUKA………………………………….………………………….APPLICANT

-and-

BATA SHOE COMPANY LTD…………….………………………….RESPONDENT

CORAM: R. Zibelu Banda, Chairperson
Applicant- Present
Respondent- absent without excuse
Chinkudzu; Official Interpreter


JUDGMENT

Dismissal-Justification-Reason-Gross negligence- Procedure for dismissal- Opportunity to be heard-Hearing.


Facts

The applicant was employed on 28 July 1997. He was dismissed on 21 May 2001. The reason for dismissal was gross misconduct involving theft of respondent’s property. The applicant challenged the dismissal alleging that he was not involved in the theft- that the reason for termination was not valid. The respondent did not attend court. No reason was given for failure to appear for hearing. The court will decide the issue basing on the applicant’s evidence and the written response of the respondent in IRC Form 2.


The Law

Section 57 (1) and (2) of the Employment Act provides that before termination, an employee must be given a valid reason and he must be invited to answer to the allegation if the allegation involves misconduct or incapacity. In Nazombe V Malawi Electoral Commission [Matter Number IRC 320 of 2002(unreported)] it was found that the Employment Act 2000 requires substantive justice (reasons) and procedural justice (right to be heard). In the instant case the applicant informed court that he was accused of theft. He was then called for a hearing to defend himself. After the hearing he was informed of the decision to dismiss him.


The burden is on the respondent to show that the reason for dismissal was valid. In this case the respondent was not available to give evidence but their written response corresponds with the applicant’s evidence on the reason for termination. The court has held that misconduct involving theft is a serious industrial misconduct warranting dismissal, see, Ibrahim V Suncrest Creameries Ltd [Matter Number IRC 73/2003 (unreported)].


Finding

The court finds that the respondent did comply with section 57(1) by providing a valid reason for dismissal. The respondent furthermore complied with section 57(2) by allowing the applicant to be heard. This action is therefore dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court on matters of law and or jurisdiction only within 30 days of this judgment.



Pronounced in Open Court this 24th day of March 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON