Saidi v Limbe Leaf Tobacco Ltd (IRC 409 of 2005 ) (409 of 2005) [2007] MWIRC 80 (31 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 409 OF 2005


BETWEEN



SAIDI……..……..……...……………………………...………………….. APPLICANT


-and-


LIMBE LEAF TOBACCO LTD….…………..………...……………...RESPONDENT



CORAM: R ZIBELU BANDA (MS); CHAIRPERSON

MRN PADAMBO; EMPLOYEES’ PANELIST

JE CHILENGA; EMPLOYERS’ PANELIST

Mpaka; of Counsel for the Applicant

Respondent; Absent no excuse

Nyabanga; Official Interpreter



JUDGMENT

  1. Dismissal-Reason for dismissal- Misconduct- Absenteeism
  2. Burden of proof-In dismissal cases burden on employer to show reason for dismissal-Employer must substantiate the reason
  3. Failure to prove reason-Conclusive presumption of unfairness
  4. Procedure- Opportunity to be heard- and defend oneself-Employee to be given a chance to explain his side and defend himself

Facts

The applicant was employed on 25 September 2001. He was dismissed on 28 September 2004. The reason for dismissal was absenteeism. The applicant admitted that he was absent from duty from 5 September 2004 to 26 September 2004. The reason for absenteeism was that he had been arrested by the police on a charge of assault and that he was incarcerated for 21 days. The applicant sent notification to the respondent about his detention. Upon his release he reported back to the office but he was dismissed without any hearing and without any notice or terminal benefits. The applicant took out this action claiming that the termination was unfair. The respondent was invited to a hearing but they did not attend court. No reason was given for non attendance. The court invoked provisions of section 74 of the Labour Relations Act and proceeded to dispose of the case.



The Law

Section 59 of the Employment Act provides that absenteeism is ground for dismissal where no permission is granted and the reason for the absenteeism is not valid. The applicant alleged that he was absent from work for a valid reason that entitled him to unpaid leave according to Clause 13(c) of the Conditions of Service. That clause provides that an employee shall not be paid anything if he was absent from duty due to the reason that he was under police custody. The applicant therefore alleged that the only punishment that the respondent could impose on him was to deny him any pay for the days that he was absent and not to dismiss him.


Where there is an allegation of dismissal, the burden is on the employer to show that there was a valid reason for the dismissal and that employer acted with fairness before dismissal. In the absence of such proof there is a conclusive presumption that the dismissal was unfair (section 61 Employment Act). The court having read the relevant clause and the respondent not being available at the court to provide any evidence contrary to that of the applicant, or to substantiate the reason, finds that the reason for dismissal was not valid.


Procedure

The applicant alleged that he was not given a hearing before the dismissal. The court finds that the respondent did not comply with a fair procedure before dismissal


Finding

The Court finds that the respondent did not comply with the law. The reason was not valid and the applicant was not given any hearing. The respondent violated section 57 of the Employment Act. This termination was therefore unfair .


Assessment of Award

The applicant is entitled to an award under section 63 of the Employment Act. He is also entitled to notice pay and severance allowance as claimed. The court shall set down a date to assess compensation. Both parties shall be required to attend the assessment.


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’ PANELIST



Joel Evalisto Chilenga

EMPLOYERS’ PANELIST