IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NUMBER IRC 4 OF 2006
KANYIKA .. .. ... ..... APPLICANT
PLASTIC PRODUCTS LTD .. ... ..................RESPONDENT
CORAM: R ZIBELU BANDA (MS); CHAIRPERSON
NC KAJOMBO; EMPLOYEES PANELIST
A MALIJANI; EMPLOYERS PANELIST
Njanji; Personnel Officer for the Respondent
Gowa; Official Interpreter
- Dismissal-Reason for dismissal- Misconduct-Disrupting work
- Procedure- Opportunity to be heard- and defend oneself-Employer to provide employee with the opportunity to be heard
The applicant and fellow workers were demanding that they should receive wages earlier than usual because pay day at this particular time fell on a week end. This demand disrupted work as workers gathered in the personnel office asking for pay instead of working. Management considered that the applicant was the ring leader. They invited him to a hearing to ask him why he was inciting other workers to stop work and demand early pay? The applicant stated that he was not the ring leader and that he did not know anything about what was going on in relation to the issue of work stoppage. Management found the applicants response unsatisfactory. They also stated in court that they found the applicants attitude uncooperative and arrogant. They subsequently dismissed him. The applicant was aggrieved by this decision and he brought out this action in this court alleging unfair dismissal and seeking remedy of compensation.
An employer is entitled to terminate the services of an employee who is guilty of misconduct inconsistent with the fulfillment of the expressed or implied conditions of his contract of employment, see section 59 of the Employment Act. In this case the applicant was found guilty of misconduct that was inconsistent with fulfillment of his expressed conditions of service. The applicant it was heard incited other workers to stop work and demand pay on unscheduled day. This is might be valid reason for termination.
However the respondent failed to prove that the applicant was the ring leader in this fracas. They also failed to show court on a balance of probability the involvement of the applicant in this issue. In all dismissal cases the onus is on the employer to prove that the applicant was guilty of misconduct or incapacity as the case may be, see section 61(1) of the Employment Act. Where the employer fails to give or substantiate the reason they give, there is a conclusive presumption that the dismissal was unfair. The court in this matter found that the reason was not substantiated and therefore concluded and found that this dismissal was unfair.
Although the applicant was given a hearing, the court found that the reason was not substantiated. In other words the respondent did not consider the applicants defence and side of the story. The hearing was merely cosmetic as it did not provide any evidence of wrong doing or facts to substantiate the allegation. The respondent did not show court what evidence they used to prove the case against the applicant. In all dismissal cases the employer must satisfy two elements namely (a) there must be a valid reason (b) there must be a fair hearing. Failure to satisfy any one of these two elements automatically leads to unfair dismissal, see Beseni v Education Department of Nkhoma Synod [Matter Number IRC 42 of 2001 (unreported)]IRC and also see Gama v St Pauls Cathedral [Matter Number IRC 220 of 2006 (unreported)]IRC.
The court finds that the dismissal was unfair and that the applicant is entitled to a relief as pleaded. The matter shall be set down on a date to be fixed to consider 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 26th day of May 2008 at BLANTYRE.
Rachel Zibelu Banda
Nick Chifundo Padambo