Shani v ESCOM (IRC 08 of 2002 ) (08 of 2002) [2006] MWIRC 82 (26 June 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 08 OF 2002


BETWEEN


SHANI …………………………………………………………………. APPLICANT


-and-


ESCOM ……………………………………………………………… RESPONDENT



CORAM: R. Zibelu Banda – Chairperson

Respondent; absent without excuse
Applicant; present
Chinkudzu; Official Interpreter


JUDGMENT


Dismissal- Procedure for dismissal – Opportunity to be heard


Facts

The Applicant was employed on 2 June 1992 as Meter Reader. He was dismissed on 7 November 2001 for misappropriating funds amounting to MK104 998-00. He was suspended in May 2001. On 6 August 2001 he was invited for a hearing at the office. He refused to attend the hearing since the matter was already in court. The applicant was dismissed after this refusal to state his case. The applicant challenged the dismissal alleging that the reason was not valid.


Issues

Whether the termination was fair?

The Law

In the matter of Nazombe V Malawi Electoral Commission [Matter Number IRC 320 of 2002 (unreported)] it was found that the Employment Act 2000 requires that substantive justice (reasons) and procedural justice (right to be heard) must be complied with in all dismissal cases. 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 and 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.”


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.”


In this case the Applicant was accorded an opportunity to be heard. He was invited for hearing but he turned it down since the matter was before court. The applicant refused to avail himself to an opportunity to vindicate himself therefore he can not be heard to be complaining about the reason being invalid. The hearing was an opportunity for him to state his case and defend himself, see Chima V Dimon Malawi Limited [Matter Number IRC 290/2004 (unreported)] where Khanum V Mid-Glamorgan Area Health Authority [1978]IRLR 215 EAT; was cited and is quoted below:


There are only three basic requirements of natural justice which have to be complied with during the proceedings of a domestic disciplinary inquiry; first, that the person should know the nature of the accusation against him; secondly, that he should be given an opportunity to state his case; and thirdly, that the disciplinary committee should act in good faith.


In a case of unfair dismissal, the employer needs to comply with the three elements above which are also codified in the Employment Act. In this case the applicant was told the allegation against him, was invited to a hearing but he refused this offer.


Findings

The court finds that the respondent did comply with section 57 (1) by providing reasons for dismissal. The respondent furthermore invited the applicant for a hearing in accordance with section 57(2). Since the respondent complied with the law, this action is dismissed in its entirety.


Terminal benefits

The applicant claimed for severance allowance and notice pay. This was fair summary dismissal for misconduct therefore the applicant is not entitled to any notice pay, section 59 and is not entitled to severance allowance, section 35(6) of Employment Act.

Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 26th day of June 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON