Mawaya and Others v ADMARC (IRC 13of 2005 ) (NULL) [2006] MWIRC 49 (25 April 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 13 OF 2005


BETWEEN:


MAWAYA AND OTHERS…………………………. ………………….APPLICANTS


-and-

ADMARC………..………………………………………………………RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicants- present

Respondent- Absent without excuse

Chinkudzu; Official Interpreter

JUDGMENT

Dismissal- Justification for dismissal- Reason-Misconduct-Spreading false rumours-Employer to justify that reason is valid-Failure to justify reason-Presumption that dismissal is unfair.

Facts

The respondent employed the applicants on various dates in various positions. They were all dismissed on 4 January 2004 on ground that they were spreading false rumours regarding the respondent’s operations in particular concerning retrenchment.


The respondent did not attend court despite indications that the notice of hearing was delivered to them. There was no excuse for failure to attend court. It was therefore not in the interests of justice to postpone the case as adjourning the matter would have been prejudicial and unfair to the applicants. In such situations the matter must proceed in the absence of the other party, see section 74 of the Labour Relations Act ,providing that if a party fails to attend or to be represented at the proceedings of the Industrial Relations Court without good cause, the Industrial Relations Court may proceed in the absence of that party or representative.


The Law

The applicable law in this matter is the Employment Act and the Constitution, which in section 31 provides that every person has the right to fair labour practices. Fair labour practices entail the right to know the reason for dismissal and the right to have an opportunity to explain ones side and defend oneself, see also section 57 (1) and (2) of the Employment Act.


The burden of showing the reason for dismissal and that it was a valid reason is on the respondent, see section 61 (1) of the Employment Act, which provides that:


“In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair.”


In Earl v. Slater and Wheeler (Airlyne) Ltd [1973] 1 WLR 51 at 55, it was held that:


“It is for the employer to show what was the principal or only reason for dismissal and that it was a potentially valid reason. If the employer fails to discharge this burden, the tribunal must find that the dismissal was unfair.”


In the instant case the respondent did not attend court to show on a balance of probabilities a potentially valid reason for dismissal. The only reason was that of spreading false rumours which reason must be justified as it does not fall under the automatic valid reason category like those provided in section 59 of the Employment Act. There was need for the respondent to attend court and show the nature of the rumours and what effect if any they had on the respondent and what damage if any they caused on the operations or well being of the respondent. The respondent failed to rebut the presumption of unfairness in the applicants’ dismissals.


Finding

The court finds that the respondent dismissed the applicant on invalid grounds. Spreading false rumours is vague and required justification to show how the operations of the respondent corporation were adversely affected or likely to be affected. The termination was in violation of section 57 (1) of the Employment Act, which requires a valid reason for termination.

Assessment of Remedy

Where there is a finding that a dismissal was unfair, section 63 of the Employment Act mandates this court to make any orders that are necessary and appropriate to secure the enjoyment of the rights and freedoms guaranteed to the applicant. A remedy shall be assessed on a date to be fixed.


Any party not satisfied with this decision is at liberty to appeal to the High Court in accordance with section 65 (2) of the Labour Relations Act within 30 days of this date.


Pronounced in open court this 25th day of April 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.