Banda v Bata Shoe Company (IRC 236 of 2004 ) (236 of 2004) [2006] MWIRC 38 (10 April 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 236 OF 2004



BANDA…….. …………………………………………………………….. APPLICANT


-and-

BATA SHOE COMPANY …………………………………………… RESPONDENT


Coram: R Zibelu Banda, Chairperson
Dr Mtambo; of Counsel for the Applicant
Respondent; absent without excuse
Chinkudzu; Official Interpreter

Background

This is an application by the Applicant K.N. Banda for damages for unfair dismissal by the respondent Bata Shoe Company (MW) Limited. The Applicant’s claim is for monies wrongly deducted for telephone bills and expenses without being heard and terminal benefits. The claim is in eleven heads representing wrongful deductions amounting to MK56, 916.59. The Applicant’s claims are broken down in Applicant’s exhibit 1’ attached to Counsel for the applicant’s submissions.The applicant was employed by the respondent on 26 January 1996 as a Shop Cleaner. At the time of termination in April 2004 the applicant raised to the position of Shop Manager at a monthly salary of MK8, 619.00.


The Law

It is a recognized principle of law that a person should be heard before being condemned. See the cases of Mlombwa V Agora Limited [IRC Matter Number 01 of 2004 (unreported)] and Nazombe Vs Malawi Electoral Commission [Matter Number IRC 320 of 2002 (unreported)]. The Employment Act 2000 in section 57 (1) and (2) requires substantive justice (reasons) and procedural justice (right to be heard) before dismissal. Where the employer does not comply with one of them or both, the dismissal is deemed unfair.


Section 57 (1) of the Employment Act 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 understanding’. The burden is on the Respondent to show that the reason for dismissal was valid, see section 61(1) of the Employment Act, and also see Earl V Slater and Wheeler Ltd [1973] 1 WLR 51. In the instant case the respondent did not attend court to respond to the applicant’s allegation nor to show the court the reason for the dismissal and to adduce evidence as to whether it was valid. Where the respondent fails to show that there was a valid reason for dismissal, the presumption is that the dismissal was unfair, section 61 (1).


In this case the respondent did not appear to justify the reasons for dismissal. The allegations were denied by the applicant and in the absence of the respondent to show that the reasons were valid, there were no valid reasons for dismissal. See the case of Fair Mount Investments Limited Vs Secretary of State (1976) 2 All ER 865. It is found in this case that there was no valid reason for the termination of the applicant’s employment. This was contrary to section 57(1).


Procedure

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 employees is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity’.


In the case of Khoswe Vs National Bank of Malawi [Civil Cause Number 718 of 2002 (unreported)] HC, it was stated that where facts of a case are in dispute, it is necessary to given an oral hearing to satisfy the rules of natural justice or the duty to act fairly. A fair hearing becomes the employer’s justification for termination of employment where there is a disagreement of fact. The duty to apply principles of natural justice does arise beyond the broader principle that where one is to affect another’s rights adversely for a reason, the other reasonably expects to be satisfied of the reason. The hearing must be fair and not predetermined. In the hearing the allegations must be outlined to the Applicant and he must be asked to answer to the allegations separately.


In the instant case the respondent did not attend court and no reasons were given for failure to attend court. Even after the notice of judgment was serviced there was no response from the respondent. This in conclusion was an indication that the respondent was not interested in pursuing this case or indeed that they had nothing to say to court regarding the allegations against them.


Finding

It is found that the respondent did not comply with the law in terminating the applicant’s employment without a valid reason and without affording the applicant the right to be heard. This termination is therefore unfair.


Order

The applicant has proved his case for MK56,916.59 comprising wrongful deductions on telephone bills. The respondent is ordered to pay this amount with immediate effect.


Pronounced in open court this 10th day of April 2006 at BLANTYRE.


Rachel Zibelu Banda

CHAIRPERSON