Chagomerana v Coffin Workshop Joinery (IRC 244 of20055) (NULL) [2008] MWIRC 1 (30 January 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 244 OF 2005


BETWEEN


CHAGOMERANA ………………………………………………………. APPLICANT


-and-


COFFIN WORKSHOP JOINERY …………………………………... RESPONDENT


CORAM: R. ZIBELU BANDA (Ms); CHAIRPERSON
Malijani; Employers’ Panellist
Padambo; Employees’ Panellist
Applicant; Present
Respondent; Absent no excuse
Chinkudzu; Official Interpreter



JUDGMENT

  1. Dismissal-Reason-Employer to provide reason-Reason to be valid

  2. Burden of proof-Employer bears burden of proof in dismissal cases-Employer to show reason and justify it

  3. Procedure-Hearing-Employer to provide employee with opportunity to be heard


Facts

The applicant was employed on 13 April 1997. She was dismissed on 17 March 2005. She gave evidence that she had a misunderstanding with a fellow employee. Without any enquiry as to what had transpired, the respondent dismissed the applicant. She alleged that the dismissal was unfair. She was not given a valid reason for the dismissal and she was not given an opportunity to be heard before the dismissal. The applicant claimed severance allowance, notice pay, leave grant (for two years 2003 and 2004) and compensation for unfair dismissal. The respondent did not attend court. A notice of hearing was sent to them. In the absence any reason for failure to attend court, the court invoked the provisions of section 74 of the Labour Relations Act and proceeded to hear the applicant.


The Law

In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair, see section 61 of the Employment Act. In this matter the court heard that the applicant had a misunderstanding with her colleague. The respondent proceeded to dismiss the applicant on that basis. The main reason for the dismissal was not known and the respondent did not attend court to show court what the reason for the dismissal was. The applicant further averred that she was not given an opportunity to be heard before the dismissal. The respondent was not present to contradict this evidence.


Finding

The court finds that the respondent contravened the law of employment. They did not give the applicant a reason for dismissal when it was their responsibility to. They did not show court the main reason for dismissal and they did not give the applicant an opportunity to be heard as required by section 57(1) and (2) of the Employment Act.


Remedies

The applicant had worked for eight years. She is therefore entitled to notice pay being MK2 700-00 (her one month salary). She is also entitled to severance allowance calculated at three weeks wages for each year of service being MK2 025 X 8 years= MK16 200-00. The applicant is also entitled to leave grant for two years to be determined. The applicant is also entitled to compensation for unfair dismissal to be assessed. A notice of assessment of compensation shall be issued in due course. Both parties shall be required to attend the assessment. The specific awards now made are with immediate effect.


Any party dissatisfied with this decision is at liberty to appeal to the High Court in accordance with the provisions of section 65 of the Labour Relations Act.




Pronounced this day 30th day of January, 2008 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON


Aiman Malijani

EMPLOYERS’ PANELIST


Maxwell R Padambo

EMPLOYEES’ PANELIST