SAMBANI v Tea Resaerch Foundation (118 of 2002 ) (118 of 2002) [2008] MWIRC 12 (04 March 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 118 OF 2002


BETWEEN


CHIMBWANYA………………………………………… ……………......APPLICANT


-and-


TEA RESEARCH FOUNDATION…………..………... ……………..RESPONDENT



CORAM: R. ZIBELU BANDA (MS.); CHAIRPERSON
A MALIJANI; EMPLOYERS’ PANELIST
M PADAMBO; EMPLOYEES’ PANELIST
Zambezi; For Respondent
Applicant; Present
Chimkudzu; Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Operational Requirements of the Respondent-Retrenchment

  2. Procedure-Consultations


Facts

The applicant was employed by the respondent on 24 July 1994. Her services were terminated on 31 January 2002. The reason for termination related to the Respondent’s operational requirements that necessitated carrying out some retrenchments due to financial problems. The applicant was informed of the financial difficulties facing the respondent prior to the termination. The applicant challenged the termination arguing that the termination was unfair. She sought the remedy of reinstatement. She also claimed salary arrears and balance on severance allowance. The respondent denied liability.


The Law

Section 57(1) of the Employment Act provides that before dismissal a person must be provided with a valid reason. While section 57(2) of the act provides that where the reason is connected with a person’s capacity or conduct, he must be given an opportunity to be heard.


In this case the reason for the termination was retrenchment. The Employment Act in section 57(2) seems to preclude an employer from providing a hearing in cases where the termination is necessitated by reason of operational requirements of the respondent’s enterprise. However this court has decided that an employer has an obligation to conform to some kind of hearing procedure even in cases where the termination is due to operational requirements of the employer’s enterprise. It is not a disciplinary hearing but a consultation process where the employer gives notice to the employee of the situation and the employee appreciates the problem. In this case there was doubt that the respondent was facing financial problems. They had to close down some departments including the applicant’s. The applicant seemed to have appreciated the situation but was not happy that she was not given ample notice to prepare for the termination. The court



Misconduct involving theft has been held to constitute valid ground for dismissal, see: Ibrahim v Suncrest Creameries Ltd [Matter Number IRC 73 of 2003 (unreported)] IRC.


In this matter the applicant admitted that he had taken out the tin. He also admitted attending a disciplinary hearing. He said he had a good reason for taking out the tin; that he had bought it. He attempted to explain the buying process to the court but the applicant’s explanation did not show that he had bought the tin. There was no evidence. The court was not convinced with the applicant’s explanation. The court found as a fact that the applicant had no authority to take out the tin.


Finding

The court finds that the reason for dismissal was valid and that the applicant was accorded an opportunity to state his case before dismissal. The respondent complied with the requirements of the law. This action is therefore dismissed in its entirety.


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.


Made this 4th day of March 2008 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON



Aiman Malijani

EMPLOYERS’ PANELIST



Maxwell R Padambo

EMPLOYEES’ PANELIST