Ntonda v Continental Discount House (IRC 03 of 2006) (03 of 2006) [2007] MWIRC 79 (31 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 03 OF 2006


BETWEEN:


NTONDA...……………...……………..……...…………………………... APPLICANT


-and-


CONTINENTAL DISCOUNT HOUSE……………...………………..RESPONDENT



CORAM: RACHEL ZIBELU BANDA (MS); CHAIRPERSON
MRN PADAMBO; EMPLOYEES’ PANELIST
D NAMANDWA; EMPLOYERS’ PANELIST
Tembenu; of Counsel for the Applicant
Respondent; absent no excuse
Chinkudzu; Official Interpreter



JUDGMENT

  1. Dismissal-Reason for dismissal- Misconduct-insubordination

  2. Burden of proof-In any claim or complaint arising out of dismissal of an employee, it shall be for employer to provide reason for dismissal

  3. Failure to discharge this burden shall be conclusive presumption that the dismissal was unfair

  4. Procedure- Opportunity to be heard- and defend oneself –Employer to act with justice and equity in dismissing an employee

Facts

The applicant was employed in July 1998. She was dismissed by letter of 4 February 2005 for alleged willful disobedience of the respondent’s instructions regarding attending important in-house courses organized by the respondent in order to enhance staff performance and team building. The applicant alleged that she failed to attend the course subject of this action because of her religious beliefs that forbid her from attending to official functions on Saturdays. She averred that her employer was aware of her religious beliefs. She contended that dismissal was unfair because she was entitled to her religious beliefs. She further stated that her failure to attend the said function did not affect her performance. She also mentioned that this was not the first time for her to discuss the issue of observing her religious beliefs with her employer after a similar incident where she had failed to attend to official functions on a Saturday.


The respondent did not attend court. There was evidence that they were sent notice of hearing. In the absence of any valid excuse for non attendance the court invoked provisions of section 74 of the Labour relations Court and proceeded to dispose of the case.


The Law

The Reason

Willful disobedience of company rules, regulations and instructions indeed is serious misconduct warranting summary dismissal; see section 59 Employment Act and Mussa V Securicor (Mw) Ltd [Matter No. IRC 2/2000 (unreported)] and Mendulo V Malawi Revenue Authority [Matter No. IRC 161/ 2003 (unreported)].


Flouting company procedures has been held in this court to constitute valid ground for dismissal, see generally, Nzangaya V Unitrans Malawi Ltd [Matter Number IRC 32 of 2003 (unreported).


In the instant case the applicant was accused of refusing to attend to official functions on a Saturday. When asked why she refused to attend the function, she stated that her religious beliefs forbid her from working on Saturdays. The respondent did not attend court to show the court why it was important for the applicant to attend to official functions on Saturday and not on Sunday or during the week days. The respondent did not attend court to show court how failure to attend such functions affected its operations. The respondent did not show court what detriment was incurred on its part for the applicant’s failure to work on Saturday. Especially since according to the applicant she had offered to attend the function on Sunday instead of Saturday, it was imperative for the respondent to show court why Saturday and not Sunday was the most suitable or appropriate day of the week-end for the applicant to report for work-related function. The respondent was obliged to show court that it acted with justice and equity in dismissing the applicant. The court finds that the reason was not valid.


Procedure

Section 57(2) of the Employment Act states: ‘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 this matter, the applicant was invited to a hearing where the allegations were outlined to her. She was asked to answer to the charges. The applicant made her explanations. The explanation was apparently not convincing, hence the respondent decided to terminate the applicant’s services. However, the respondent was obliged under section 61 of the Employment Act to show the court why failure to attend work on Saturday for an otherwise valid reason, see section 57(3) of the Employment Act, constituted insubordination.




Finding

The Court finds that the respondent failed to substantiate the reason for termination. In any case of dismissal the burden is on the employer to show on a balance of probabilities that the reason for termination was valid and that the employer acted with fairness in terminating the employee’s services (section 61, Employment Act). Under the circumstances of this case there is a conclusive presumption that the termination was unfair and it is so found.


Assessment of Compensation

The applicant prayed for the remedy of compensation. The matter shall be set down on a date to be fixed to assess compensation.


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