IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. 174 OF 2005
GIDEON .. APPLICANT
POPULATION SERVICES INTERNATIONAL ..RESPONDENT
- CORAM: R. Zibelu Banda (Ms); Chairperson
- Applicant; present
- Kalua; of Counsel for the respondent
- Gowa; Official Interpreter
J U D G M E N T
Dismissal-Justification-Reason-Capacity-Ill health-Employer to justify reason that it is valid-Medical evidence as proof of ill health-Procedure-Consultation-Requirement is for real consultation and not sham-Views of employee to be considered-Medical experts opinion to be sort.
The applicant was employed in January 1996. Her services were terminated on 19 August, 2004 on grounds of ill health. The applicant was invited to a meeting where she was told of managements decision to relieve her of her duties because she lacked the capacity to continue in her normal work due to persistent ill health. At this time the applicant had been sick on and off for a period close to six months. After this meeting the applicant was paid all her benefits.
The applicant challenged the termination alleging that it was unfair. She stated that at the time of termination she had improved and that she was working normally. She averred that even when she was called for the meeting, she had been at her workstation performing her normal duties. In essence the applicant was challenging the reason for dismissal and the pre-termination procedure where she was invited to be told of managements decision to terminate her services and not to consult her on her medical situation. The respondent contended that the reason was valid and that the applicant was heard before the termination. They submitted that the termination was fair.
There are two issues to be addressed. The first issue is whether the applicant was so incapacitated due to ill health that she lacked the capacity to perform the work for which she was employed. The second issue is whether the applicants medical condition was investigated and the applicant consulted on her clinical status before the decision to terminate her services was made.
The Employment Act section 57 (1) provides that the employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.
The burden of proving the reason for termination is on the employer; section 61 of the Employment Act. It is also the duty of the employer to see to it that in all circumstances it handled the matter of the employee with fairness.
In cases of ill health which is lack of capacity, before an employee is dismissed, the employer must carry out an inquiry to establish the clinical fitness of the employee, see generally, Banda V Lekha [Matter Number IRC 277/2004 (unreported)].
In this case the respondent did not carry out any inquiry as to the employability of the applicant. They assessed her basing on absenteeism which was authorized and within the conditions of employment to enable the applicant undergo some operation and recuperate at home. The assessment was made in the absence of a medical report and in the absence of the applicant to give her position. It was held in East Lindsey District Council V Daubney  IRLR 181 EAT, a case dealing with ill health, that:
The decision to dismiss or not is not a medical question but one to be answered by employers in the light of available medical evidence. It is not the function of employers, any more than it is for the Industrial Tribunals, to turn themselves into some sort of medical appeal tribunal.
It was not for the employer to make a unilateral decision of incapacity due to ill health without establishing the true clinical fitness of the employee. It is found as a fact that the reason for terminating the applicants services was not established, which is contrary to section 57(1). The termination was therefore substantively unfair for want of valid reason.
Section 57(2) of the Employment Act states: The employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is
provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity.
Section 46 of the Employment Act provides that an employer shall grant a sick employee at least four weeks sick leave on full pay and another eight weeks sick leave on half pay. The interpretation of this provision in this courts view is that an employee is entitled to 12 weeks sick leave in any year. Although the Act does not state what happens after the 12 weeks, the assumption is that after the 12 weeks, an employer has two options namely: (a) to retain the employee on employment but on unpaid sick leave or on further paid sick leave according to the terms and conditions of the employment contract in any particular organisation (b) to terminate the employment after carrying out the necessary procedural requirements, including a hearing, see, East Lindsey District Council cited above.
In Williamson V Alcan (UK) Ltd  IRLR 303 EAT, the Employment Appeal Tribunal held that:
The purpose of discussion and consultation is partly to enable the true medical position to be discerned. But it is also necessary because it is reasonably fair and good practice that a man who is going to be dismissed should have a say in the matter. Further, quite apart from the medical condition, his whole employment situation require to be assessed and considerations of alternative employment taken into account.
In this instant case the respondents witness who was Director of Human Resource and Administration had in the absence of the respondent made recommendations in an appraisal form for termination of the applicants contract basing on ill health. The recommendation was approved. The same person sat at the alleged hearing determining whether or not the applicants contract should be terminated on medical grounds.
The rule against bias, stipulates that a person should not be a judge in his own cause. In this case, the witness who was Director of Human Resource had in that capacity recommended the termination of applicants contract; he later sat at a hearing where a decision was to be made whether or not to terminate the applicants contract. This was contrary to the rule against bias. Further, this was a pre-determined decision, the hearing was a sham arranged as a smoke screen to give an appearance of fair process when in fact a decision had already been made on 17 August 2004, see respondents exhibit RP 2.
To buttress the fact that the decision was pre-determined, the court was told that the applicant was called from her duty station to a meeting without any prior warning or notice that she would be asked to give representations on her employment contract. It is a fundamental principle of natural justice that a person must be given a hearing before any adverse action is taken against her and that before the hearing the affected person must have adequate notice in order to prepare her case and bring evidence if necessary. The applicant was ambushed, she was not given any time to know the nature of the meeting to which she was invited nor was she given any time to prepare her representations.
In Jana V Union Transport [Matter Number IRC 38/2004 (unreported)] a case similar to this case on the uncontroverted facts, this court found the dismissal fair because in that case the applicant exhausted all the available sick leave entitlement and continued to absent himself from work. He eventually on his own accord and at his own time asked for a meeting with management to address his problem. In that case the applicant- employee was the one who called for the meeting, he knew the nature of the discussions, and he was therefore responsible for making available all the necessary evidence to prove his employability.
On the facts of the instant case, the court finds that the reason for terminating the applicants services was not established. The termination was therefore substantively unfair for want of valid reason, which is contrary to section 57(1). The termination of the applicants services on grounds of ill health was also unfair for failure to follow a fair process of investigation and consultation, in the form of a fair hearing, an omission contrary to section 57(2). This action therefore succeeds on both substance and procedure.
Any party aggrieved by this decision is at liberty to appeal. Appeal lies in the High Court on points of law and jurisdiction only and must be lodged within 30 days of this decision in accordance with section 65 (2) as read with Rule 27 of the Industrial Relations Court (Procedure) Rules 1999.
Pronounced in open court this 6th day of April 2006 at BLANTYRE.
Rachel Zibelu Banda