Kapolama v Enterprise Containers (2003) Ltd (IR 13 of 2006)) (13 of 2006) [2007] MWIRC 72 (31 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 13 OF 2006


BETWEEN


KAPOLOMA………………...…………………………………………… APPLICANT


-and-

ENTERPRISE CONTAINERS (2003) LTD………………………… RESPONDENT



CORAM: RACHEL ZIBELU BANDA; CHAIRPERSON
MRN PADAMBO; EMPLOYEES’ PANELIST
D NAMANDWA; EMPLOYERS’ PANELIST
Kalidozo; for the Respondent
Applicant; present
Chinkudzu; Official Interpreter


JUDGMENT

  1. Dismissal-Reason-Misconduct-Absenteeism

  2. Procedure-Right to be heard-Right to defend oneself-Must be fair

  3. Previous warnings-To be taken into account when considering whether employer acted with reasonableness


Facts

The applicant was dismissed for absenteeism. He asked for permission to go to the hospital. However he failed to report back to work afterwards. When asked to produce a medical report he failed to produce any. The respondent invited him to explain his action. His explanation was not convincing hence his termination. He challenged the termination alleging that the reason was not valid and that he was not given a hearing to defend himself. The respondent averred that the reason was valid and that the applicant was given a fair hearing.


The Law

The Employment Act provides that an employer is entitled to dismiss summarily an employee guilty of habitual or substantial neglect of his duties and an employee who is guilty of absence from work without permission of the employer and without reasonable excuse, see section 59 Employment Act.


In the instant case the applicant was found guilty of absence from work without permission and without reasonable excuse. Before this incident he had been warned on 23 December 2004 for late reporting for duties. After this warning he had been given a final warning on 4 January 2005 for leaving his office without permission. The applicant was given an opportunity to be heard. Even before this hearing the applicant through the warnings was given an opportunity to change for the better. The respondent did all its best to act reasonably on the applicant before dismissal.


Finding

The reason for dismissal was valid and process before dismissal was fair. The court therefore finds that the dismissal was fair. This action is dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Made this 31st day of December 2007 at Blantyre.



Rachel Zibelu Banda

CHAIRPERSON



Maxwell RN Padambo

EMPLOYEES’ MEMBER PANELIST



Daphter Namandwa

EMPLOYERS’ MEMBER PANELIST