Nyirenda Elliot v Malawi Revenue Authority (IRC 45 of 2004) (45 of 2004) [2006] MWIRC 30 (29 March 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 45 OF 2004

BETWEEN

NYIRENDA ELLIOT………………………….………………………….APPLICANT

-and-

MALAWI REVENNUE AUTHORITY……………………………….RESPONDENT

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


JUDGMENT

Dismissal-Justification-Reason-Redundancy?-Services not required-Probationary employee.


Facts

The applicant was employed on 14 February 2000. He was dismissed on 12 February 2001. The reason for dismissal was that the respondent no longer required the services of the applicant. There was no prior hearing or consultation before the termination. The applicant alleged that this was a redundancy but that it was unfairly carried out because he was not consulted. He therefore asked the court to find that the dismissal was unfair and order for his reinstatement.


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 cases where the reason for termination is that the respondent does not require the services of the applicant the burden is on the respondent to show the court why the applicant’s services are no longer required.


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. In their written response to the statement of claim the respondent averred that the applicant had his services terminated while on probation. It seems to suggest that where an employee is on probation his services can be terminated willy nilly without any regard for his rights to economic development or fair labour practices enshrined in the Constitution. It also seems to suggest that the respondent can chose to lay off an employee at any time as long as they are on probation without following any procedures as demanded in good industrial practices.


In Sheha V Malawi Revenue Authority [Matter Number IRC113/ 2002 (unreported)] this court held that although an employee is not entitled to notice pay being on probation, she is still entitled to know the actual reason for the termination of her services and to be heard on the reason. In the instant case, there was no reason given as to why the applicant’s services were no longer needed. The reasons given by the applicant in the letter of termination and in the IRC Form 2 are not valid reasons for termination.


Finding

The court finds that the respondent failed to comply with section 57(1) of the Employment Act because the reason (s) for termination were not valid. The court finds that this termination was unfair.


Remedy

The applicant prayed for the remedy of reinstatement. A date shall be set down at the initiative of the applicant to assess the remedy.


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 29th day of March 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON