INDUSTRIAL RELATIONS COURT OF MALAWI
NO. IRC 122 OF 2004
LINK BUILDING PRODUCTS.
- CORAM: R. ZIBELU
BANDA (Ms); CHAIRPERSON
Respondent; Absent without
to be heard-Employer under legal obligation to afford employee
opportunity to be heard and defend himself-Hearing
must be fair
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
to section 74 of the Labour Relations Act.
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.
The issue is whether the
respondent had a valid reason for dismissing the applicant?
dismissal an employer is obliged to give a reason for the decision to
dismiss. The reason may relate to conduct, capacity
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.
57(2) of the Employment Act states that: The employment of an
employee shall not be terminated for reasons connected
capacity or conduct before the employee is provided an opportunity to
defend himself against the allegations made, unless
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 employers 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 anothers rights adversely for a reason, the other
to be satisfied of the reason.
instant case the court heard that the respondent asked the applicant
to make written submissions. He was suspended pending
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.
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.
The court finds that the
respondent did not have a valid reason justified through a hearing
for dismissal. The dismissal was therefore
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.
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.
this 8th day of November 2007 at BLANTYRE.