Singini v BCA Negligence of Proof Burden of Proof Ujnfair (IRC 274 of 2002 ) ( of ) [2007] MWIRC 81 (31 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 274 OF 2002


BETWEEN



SINGINI……..……...……………………………...……………………... APPLICANT


-and-


BCA BESTOBELL MALAWI…………………………….…………...RESPONDENT



CORAM: R ZIBELU BANDA (MS); CHAIRPERSON

NC KAJOMBO; EMPLOYEES’ PANELIST

JE CHILENGA; EMPLOYERS’ PANELIST

Applicant; present

Respondent; Absent no excuse

Nyabanga; Official Interpreter



JUDGMENT

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


Facts

The applicant was employed on 3 July 1997. He was dismissed on 11 August 2000. The reason for termination was negligence. The applicant challenged the termination alleging that the reason was not valid and that he was not given a right to be heard. 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.


Reason

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. The employer must substantiate the reason in court. In the absence of such proof there is a conclusive presumption that the dismissal was unfair (section 61 Employment Act). Every employee is entitled to be given a reason for termination. A reason may relate to misconduct, incapacity or operational requirements of an undertaking. In the instant case the applicant averred that the reason given was not valid. Further that he was not given an opportunity to comment on the reason. In the absence any evidence to the contrary the court finds that the reason for dismissal was not valid as the respondent was not available to substantiate it. Further the procedure leading to the dismissal was unfair as that applicant was not afforded an opportunity to state his case and defend himself.


Finding

The Court finds that the respondent did not comply with the law. There was no valid reason for dismissal 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 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



Nick Chifundo Kajombo

EMPLOYEES’ PANELIST



Joel Evalisto Chilenga

EMPLOYERS’ PANELIST