Manda v Malawi Entrepreneurs Development Institute (MEDI) (IRC 10 of 20044 ) (10 of 20044) [2007] MWIRC 9 (30 January 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 109 OF 2004


BETWEEN


MANDA…………………………………… ………………………………APPLICANT


-and-


MALAWI ENTREPRENEURS DEVELOPMENT INSTITUTE (MEDI)……………………………….…………………... ……………..RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson
Nyirenda A (Ms); Assistant Registrar, High Court (Mzuzu Registry)
Banda; Director of Human Resources and Administration
Applicant; Present
Namponya (Ms); Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Loss of trust and confidence

  2. Employment contract-Implied term-Mutual trust and confidence

  3. Procedure- Right to be heard-Hearing-Written submissions-Where matters not contested written statements enough to make decision

  4. Court must guard against rigid imposition of judicial style proceedings in inappropriate situations


Upon hearing the applicant and the respondent the court finds that the applicant was employed as an Internal Auditor. However before he was established in the position; the respondent as part of pre-employment procedures had enquired on the applicant’s performance from his previous employers. Two of these former employers made adverse reports touching on the applicant’s honesty and integrity. Basing on these reports the respondent gave the applicant notice to terminate his services as they were not comfortable retaining him in such a position of Internal Auditor. He was on probation.


The applicant responded to the notice explaining the situation. The respondent took his explanation into account but still they had lost trust and confidence in him. It has been held in this court that mutual trust and confidence is an implied term of any employment contract. Without it, one cannot expect to continue with an employment relationship. See: Lugomba and others V Blantyre Newspapers Ltd [Matter Number IRC 411/2005 (unreported)].


The court finds that this was a valid reason for taking disciplinary action. Before the termination the applicant was put on notice. He explained his side. Since the matters were not in contention, the court finds that this written statement was adequate and it fulfilled the right to be heard. See Banda V Unitrans (Mw) Ltd [Matter Number IRC 27/2001 (unreported)] holding that the court must guard against the rigid imposition of judicial style proceedings in inappropriate situations. The court therefore finds that the procedure adopted under the circumstances of this case was fair.


Finding

The respondent complied with the requirements for fair dismissal: Section 57 (1) and (2) of the Employment Act. This action is therefore dismissed.


Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: Section 65 (2) of the Labour Relations Act.


Pronounced this 30th day of January 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.