IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 256 OF 2002
JOLOSANI . ... ... APPLICANT
TRANSPORT EQUIPMENT MANUFACTURERS......... . ..RESPONDENT
CORAM: R. Zibelu Banda (Ms) Chairperson
Respondent; Absent without excuse
Chinkudzu; Official Interpreter
Compensation-Considerations-Contributory fault-Where contributory fault is assessed at 100%- Nil award.
The applicant succeeded in a case of unfair dismissal brought against the respondent. The Honorable the Deputy Chairperson sitting in that case found that the dismissal was unfair on technicality. Had the applicant been given a right to be heard the courts decision might have been different.
In assessing compensation the court is guided by provisions of section 63 of the Employment Act 2000. Some of the factors to consider include; whether the employee contributed to the dismissal, whether the dismissal resulted in loss on the part of the employee.
In this case the court found that the applicant had acted irresponsibly by absenting himself from work when he was required to report to carry out a stork-taking exercise. This was an act of misconduct constituting absenteeism and willful disobedience of lawful orders from the employer. The court therefore finds that the applicant contributed to his dismissal.
Contributory fault has the effect of reducing the amount of the award of compensation proportionate to the percentage attributed to the likelihood of dismissal had the respondent fully complied with the law. If the respondent in this case had fully complied with the law, would the reasons have been valid on their own to lead to a result that the respondent arrived at- that of dismissal? If the answer is yes, the court must find that the percentage of contribution is 100%, in which case compensation is not awardable, see Earl V Slater & Wheeler (Airlyne) Ltd 1 WLR 51.
In the instant case the applicant was asked to report for duties on 22 December to carry out a stork- taking exercise. The applicant had been warned before that failure to report for work for the exercise would result in dismissal. The applicant committed three industrial offences, absenteeism without valid reason and without authority; refusal to take lawful orders and willful disregard of a prior warning given to him. These are serious acts of misconduct which in some cases have warranted summary dismissal, see section 59 Employment Act 2000, also see Magalasi V National Bank of Malawi [Matter Number IRC 288/2003 (unreported)] IRC.
In this case the applicant was dismissed with full benefits. He received his terminal benefits including severance allowance. As the court has found that these actions warrant summary dismissal, it is the courts conclusion that the applicants contribution to the dismissal was 100 per cent therefore he gets nil award of compensation, see, Kamasa V Bata Shoe Co. [Matter Number IRC 253/2003 (unreported)] IRC.
The applicant committed acts of serious misconduct. These reasons were enough to warrant a summary dismissal under the Employment Act. The applicant contributed to his dismissal. If the respondent had carried out a hearing the applicant would have been dismissed anyway, therefore no loss would have been occasioned to him. Whatever award the applicant was going to get is reduced by 100% therefore he gets no award of compensation.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days from the date of this ruling. Appeal lies on matters of law and jurisdiction only, see section 65 (2) Labour Relations Act 1996.
Pronounced in Open Court this 6th day of January 2006 at BLANTYRE.
R Zibelu Banda (Ms.)