Taumbe v Chinese Engineering & Furniture (IRC 334 of 2002 ) (334 of 2002) [2007] MWIRC 19 (13 February 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 334 OF 2002


BETWEEN


TAUMBE………….……………………………………… ……………...APPLICANT


-and-


CHINESE ENGINEERING & FURNITURE………………….……..RESPONDENT



CORAM: R. Zibelu Banda (Ms);Chairperson
Ngwangwa; Sales Representative for the Respondent
Applicant; present
Chinkudzu; Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Resignation-Constructive dismissal

  2. Constructive dismissal-Onus on employee to show that the employer breached fundamental term of contract


Upon hearing the applicant and the respondent the court finds that the applicant resigned from his job after he failed to cope with the workload assigned to him. The applicant was unskilled labourer. He was working in the factory. At the material time he was assigned to work at a building site where he found work too heavy for him. He complained and asked for reduced workload but he was not assisted. He decided to resign. The applicant claimed that this was unfair dismissal. In response the respondent stated that the assignment from one section to another was routine and many more workers were assigned such jobs. At the time that the applicant was assigned to the building site he was not the only one. He resigned while the others did not resign but continued to work.


The Issue

Was this constructive dismissal in terms of the law?


The Law

An employee can claim that his resignation was not of his own volition but was forced due to unreasonable conduct of the employer. Where the employer breaches a fundamental term of the contract, an employee is entitled to repudiate the contract. The burden is on the employee to show that a fundamental term of contract was breached by the employer, which made the continuation of the employment contract unreasonable, see section 61(3) of the Employment Act.


Where an employee proves on a balance of probabilities that the dismissal is in fact constructive dismissal, the Court must find that the dismissal is unfair, see section 58 of the Act.


The dismissal is not automatically unfair just because the employee resigned for some reason. The Court must still find whether the dismissal was fair or unfair. At that point it becomes the employer’s duty to show the reason for the conduct which entitled the employee to terminate the contract, see, Berriman V Delabole Slate [1985] ICR 546.


In assessing the facts of this case, the court was not convinced that the employer’s conduct was so unreasonable that the conduct could be construed as a breach of contract. This is so because the applicant was unskilled worker; he did not have any special acquired skills therefore he could be assigned to perform any work that did not require any skills. The applicant was not the only employee assigned to this work; there were other employees who had no problems with the work. There was a rotation system to work to and fro the building site therefore this action by the employer was not inconsistent with its normal operations.


Finding

This court does not find any compelling reasons to find for the employee in this case. This action is therefore dismissed in its entirety.


Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: Section 65 (2) of the Labour Relations Act.


Pronounced this 13th February 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.