Mushani v Illovo Sugar (IRC 40 of 2006) (40 of 2006) [2007] MWIRC 11 (30 January 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU REGISTRY

MATTER NO. IRC 40 OF 2006

BETWEEN

MUSHANI……...……………………………….………………………….APPLICANT

-and-

ILLOVO SUGAR (MALAWI) LTD……….………………………….RESPONDENT

CORAM: R. Zibelu Banda (Ms.); Chairperson
Applicant; Present
Respondent; Absent without any excuse
Namponya; Official Interpreter


JUDGMENT

  1. Dismissal-Justification-Reason-Must be based on allegations on charge sheet

  2. Procedure for dismissal-Opportunity to be heard-Hearing

  3. Hearing-Charge sheet-To outline allegations-Employee to answer to allegations on charge sheet

  4. Appeal- Appeals procedure form part of the process of ensuring that a dismissal is fair


Facts

After a disciplinary hearing the applicant was dismissed for drawing stores items for jobs that were not done; drawing of stores items that did not match with jobs indicated on stores requisitions and failing to account for items drawn from stores. The applicant was working as Packaging Superintendent. He failed to defend himself from the three allegations cited above. He claimed that the dismissal was unfair because the allegations for which he was invited for a hearing were different from the reasons that appeared on his letter of dismissal.


Issues

Whether the applicant’s dismissal was based on reasons for which he did not have an opportunity to respond to at a hearing? Whether under the circumstances of the case the applicant was entitled to claim the employer’s pension contributions and compensation for unlawful dismissal.


The Law

The charge sheet was tendered as AP2, it laid down three allegations which were exactly those that appeared on the latter of termination tendered as AP1. The court finds that the applicant’s claim in frivolous and lacks any merit, it is dismissed. Consequently the applicant is not entitled to compensation for unfair dismissal.


The applicant was summarily dismissed. He claimed the employer’s pension contribution. The applicant did not show any basis for claiming employer’s pension contributions. Pension is governed by contract and any claims arising out of pension benefits must be based on a contract. In the absence of supporting evidence, the court has no choice but to dismiss this claim.


Appeal

It was noted that the applicant had two opportunities to defend himself. He appeared before an appellate body. He was not able to convince this forum. The law provides that appeal procedure form part of the process of ensuring that a dismissal is fair, see Prindella V Limbe Leaf Tobacco Ltd [Matter Number IRC 49/2002 (unreported)].


Finding

The court finds that the applicant’s claims had no merit and therefore they are dismissed. Any party aggrieved by this decision is at liberty to appeal to the High Court on matters of law and or jurisdiction only within 30 days of this judgment: Section 65(2) Labour Relations Act.



Pronounced this 30th day of January 2007 at BLANTYRE



Rachel Zibelu Banda

CHAIRPERSON