Malizani v Malawi Revenue Authority (IRC 201 of 2004) (201 of 2004) [2007] MWIRC 60 (14 November 2007);

Share
Download: 


IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 201 OF 2004

BETWEEN

MALIZANI………….………………………….………………………….APPLICANT

-and-

MALAWI REVENNUE AUTHORITY……………………………….RESPONDENT

CORAM: R. ZIBELU BANDA (MS); CHAIRPERSON
J E CHILENGA; EMPLOYERS’ PANELIST
PADAMBO; EMPLOYEES’ PANELIST
Kataika; of Counsel for the Applicant
Respondent- absent without excuse
Ngaaluka; Official Interpreter


JUDGMENT

  1. Dismissal-Justification-Reason-Services not required-Probationary employee

  2. Procedure-Right to be heard-Not given-Unfair


Facts

The applicant was employed on 14 February 2000. He was dismissed on 6 February 2001. The reason for dismissal was that the respondent no longer required the services of the applicant. There was no prior hearing or consultation before the termination. The applicant alleged that this was unfair dismissal. He prayed for an order of reinstatement. The respondent did not attend court.


The Law

Section 57 (1) and (2) of the Employment Act provides that before termination, an employee must be given a valid reason and he must be invited to answer to the allegation if the allegation involves misconduct or incapacity. In cases where the reason for termination is that the respondent does not require the services of the applicant the burden is on the respondent to show the court why the applicant’s services are no longer required.


The burden is on the respondent to show that the reason for dismissal was valid. In this case the respondent was not available to give evidence. In their written response to the statement of claim the respondent averred that the applicant had his services terminated while on probation. It seems to suggest that where an employee is on probation his services can be terminated wily-nilly without any regard for his rights to economic development or fair labour practices enshrined in the Constitution. It also seems to suggest that the respondent can chose to lay off an employee at any time as long as they are on probation without following any procedures as demanded in good industrial practices.


In Sheha V Malawi Revenue Authority [Matter Number IRC113/ 2002 (unreported)] this court held that although an employee is not entitled to notice pay being on probation, she is still entitled to know the actual reason for the termination of her services and to be heard on the reason. See also Nyirenda v Malawi Revennue Authority [Matter Number IRC 45/2004 (unreported)]. In the instant case, there was no reason given as to why the applicant’s services were no longer needed neither was the applicant given a chance to say anything defence of his employment before his termination.


Finding

The court finds that the respondent failed to comply with section 57(1) of the Employment Act because the reason (s) for termination were not valid. The court also finds that respondent did not follow procedure before the termination. The court finds that this termination was unfair.


Remedy

The applicant prayed for the remedy of reinstatement. A date shall be set down to assess the remedy.


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.



Made this 14th day of November 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON


Joel Evalisto Chilenga

EMPLOYERS’ PANELIST


Padambo

EMPLOYEES’ PANELIST


Frame1