Mkanda v Kamponji Estate (IRC 79 o 2004 ) (NULL) [2006] MWIRC 44 (13 April 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 79 OF 2004


BETWEEN


MKANDA...………………….….………………………………………… APPLICANT


AND


KAMPONJI ESTATE LIMITED….…………….…………...………..RESPONDENT



CORAM: R. Zibelu Banda (Ms) Chairperson

Applicant: Present

Nkuna of Counsel for the Respondent

Mbewe; Official Interpreter




JUDGMENT

Employment Contract-Offer and Acceptance-Employee-Who is an employee?-Dismissal-Justification-Reason-Late reporting for work-One off-Must justify dismissal.


The applicant was employment in a letter dated 29 October 2003. The applicant, in the same letter accepted the offer by signing the doted line against her name. The letter was exhibited in court as RP1. According to the letter the applicant was required to report for duties on 10 November 2003 to work as Secretary/ Administrative Assistant reporting to the Managing Director.


On 10 November 2003 the applicant reported for work. However instead of getting started the applicant was dismissed. The reason for dismissal was that the applicant had reported late, at around 10 :00 AM according to the respondent. This late reporting for work on the first day according to the respondent meant that the applicant was not interested in the employment. She had not accepted the offer. The respondent alleged further that they reached this conclusion after the applicant failed to report immediately after interviews for work.


The applicant on the other hand averred that she accepted the offer of employment. She admitted that she could not start work immediately after she emerged successful in the interviews because she had to finalise other matters before settling into the new job. She had asked for an extension of time within which to start work and the extension was granted to 10 November 2003. On this day the applicant reported for duties. However she was surprised to be told that the position was not available. She challenged the termination and prayed for compensation.


The Issue

The issues are whether the applicant accepted the offer of employment and therefore whether she was an employee of the respondent? If the answer is in the positive, which according to this judgment, it is, whether the applicant’s termination was fair?


The Law

It is an elementary position of the law that a contract is sealed where there is an offer and acceptance. An offer and acceptance can be signified in writing or verbal. In an employment setting, a contract relationship arises where a person, called an employee, offers her services under an oral or written contract of employment, whether express or implied, see section 3 of the Employment Act. In this case, the applicant offered her secretarial services in written form to the respondent and thereafter appeared on the appointed day to take up her assignment. It is found that the applicant through her signature and through her conduct of reporting for duties on 10 November 2003, offered her services to the respondent after the respondent had demanded those services. It is found therefore that the applicant was an employee of the respondent. She had accepted the offer and was duly employed.


The Dismissal

The respondent dismissed the applicant for late reporting for work. The question is whether this was a valid reason for dismissal? The law provides in section 57 of the Employment Act, that before termination the employer must show a valid reason. In this case the applicant was late according to the respondent. It is accepted that late reporting for duties is an act of misconduct. However, the late reporting must be assessed in context taking several factors into consideration, see Kamanga V Machinery Spares & Trading (MST) Ltd [Matter Number IRC51/2003 (unreported)].


In cases of late reporting for duties, the employer must show among other things that the employee was in fact in the habit of reporting late for work; or that the nature of the late reporting on any particular day was such that the respondent’s operations were put in jeopardy or indeed that in the nature of the employee’s work late reporting for work would cause serious disruptions to the operations of the employer, for example, if a medical doctor reported late for work and in the meanwhile life is lost or put in danger of loss. These are just examples which an employer must show to justify dismissal.


In the instant case, the respondent did not show that the applicant had formed a habit of late reporting for work oR that the late reporting had caused irreparable damage or was capable of causing serious damage to the operations of the respondent. It was a one off late reporting incident which at most should have attracted a light warning.


Finding

It is found therefore that the punishment did not fit the offence. The reason for dismissal was not valid. This was contrary to section 57(1) of the Employment Act. The dismissal was therefore unfair.


Remedy

The matter shall be set down on a date to be fixed to consider assessment of an appropriate remedy. Both parties are encouraged to appear for assessment. The applicant to secure date and process the notice of assessment within four weeks from today.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this day in accordance with section 65(2) of the Labour Relations Act.




Pronounced in open court this 13th day of April 2006 at BLANTYRE




Rachel Zibelu Banda


CHAIRPERSON