Zingwa v Link Building Products (IRC 122 of 2004 ) (122 of 2004) [2007] MWIRC 59 (08 November 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 122 OF 2004


BETWEEN


ZINGWA……………...................................................................................APPLICANT


-and-

LINK BUILDING PRODUCTS.…...…...…………………………RESPONDENT



CORAM: R. ZIBELU BANDA (Ms); CHAIRPERSON
MALIJANI; EMPLOYERS’ PANELIST
KAJOMBO; EMPLOYEES’ PANELIST
Applicant; Present
Respondent; Absent without excuse
Gowa; Official Interpreter

JUDGMENT

      1. Dismissal-Justification-Reason-Misconduct-Diminishing Trust

      2. Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself-Hearing must be fair


Background

The matter was called for hearing on 11 October 2007. An affidavit of service by post sworn on 31 August 2007 was on record. The court therefore is satisfied that the respondent was served with a notice of hearing. However they decided not to attend court without any reason. The court proceeded to hear the applicant and conclude the matter in the absence of the respondent pursuant to section 74 of the Labour Relations Act.


Facts

The court heard that the applicant was employed as Head of Security. He was employed on 15 August 2000. On the material day he just received a letter of termination effective 27 April 2004. The reason was that the respondent had lost trust in the applicant. This was after the respondent had received reports that the applicant was involved in some dishonest acts. These acts were not proved and were not revealed in the letter of termination. The applicant challenged the termination on ground that the reason for termination was not valid. It had no substance.


Issue

The issue is whether the respondent had a valid reason for dismissing the applicant?



The Law

Substantive

In any dismissal an employer is obliged to give a reason for the decision to dismiss. The reason may relate to conduct, capacity or operational requirements of an undertaking, refer to section 57(1) Employment Act. The reason must be valid. Meaning that it must be an act that can reasonably be used to terminate a contract of employment. Where the act relates to misconduct, it must be proved or at least the employer must believe that the employee misconducted himself.


Procedural Justice

Section 57(2) of the Employment Act states that: ‘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 the case of Khoswe V National Bank of Malawi [Civil Cause Number 718/2002 (unreported)] it was stated that where facts of a case are in dispute, it is necessary to give an oral hearing to satisfy the rules of natural justice or the duty to act fairly. A fair hearing becomes the employer’s justification for termination of employment where there is a disagreement of facts. The duty to apply principles of natural justice does arise beyond the broader principle that where one is to affect another’s rights adversely for a reason, the other reasonably expects to be satisfied of the reason.


In the instant case the court heard that the respondent asked the applicant to make written submissions. He was suspended pending investigations. He was not told the results of the investigation. Instead he received a letter of termination. The allegation was serious and it was imperative for the respondent to accord the applicant a proper hearing for him to defend himself. This was a matter where the applicant must have confronted his accusers in an oral hearing.


The respondent was not available at the hearing to state their side of the story. The court therefore in the absence of any contrary evidence finds as a matter of fact that the applicant was dismissed for a reason that was neither proved nor justified.


Finding

The court finds that the respondent did not have a valid reason justified through a hearing for dismissal. The dismissal was therefore unfair.


Remedies

Where a party succeeds in a case of unfair dismissal, the court is empowered to award that person a remedy. These remedies are provided in section 63 of the Employment Act. However before awarding any remedy the court must assess the case from the facts to determine the appropriate remedy. As such remedy is not automatic and is not uniform, as the remedy will always depend on the circumstances of the case. The matter shall be set down on a date to be fixed to consider an appropriate remedy.


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: See section 65 (2) of the Labour Relations Act 1996.


Made this 8th day of November 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON


Aiman M Malijani

EMPLOYERS’ PANELIST




Nick Chifundo Kajombo

EMPLOYEES’ PANELIST