Trapence v MRA (IRC 73 of 20066 ) (73 of 20066) [2008] MWIRC 21 (27 May 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 173 OF 2006


BETWEEN



TRAPENCE………………..……..……...……………………………..... APPLICANT


-and-


MRA…………………………………...………..………...……………...RESPONDENT



CORAM: R ZIBELU BANDA (MS); CHAIRPERSON

NC KAJOMBO; EMPLOYEES’ PANELIST

A MALIJANI; EMPLOYERS’ PANELIST

Mbutwa; of Counsel for the Respondent

Chayekha; of Counsel for the Applicant

Chinkudzu; Official Interpreter



JUDGMENT


  1. Dismissal-Reason for dismissal- Misconduct-Insubordination-Contempt of authority-Failure to attend disciplinary hearing
  2. Procedure- Opportunity to be heard- and defend oneself-Employer to provide employee with the opportunity to be heard-Unless Employer cannot reasonably be expected to provide the opportunity

Fact The applicant was dismissed from services of the respondent with immediate effect on grounds of ‘conduct unacceptable to the respondent such as insubordination and contempt of authority’. The material facts are that the applicant was answering charges of indiscipline. He was suspended from duties pending investigations and disciplinary hearing. Subsequently the respondent sent a letter to the applicant inviting him to a disciplinary hearing. The applicant did not attend the hearing. It was on the basis of this failure to attend a disciplinary hearing that the respondent dismissed the applicant. The respondent construed this failure to attend a disciplinary hearing as an act of insubordination and contempt of authority. The respondent carried out the dismissal without a hearing. The applicant challenged the dismissal on that ground. Contending that if he had been afforded an opportunity to be heard he would have been able to defend himself because he had a good reason. The applicant’s explanation was that he did not receive the invitation notice in time for the hearing.

The Law

An employer is entitled to terminate the services of an employee who is guilty of misconduct or incapacity, see section 57(1) of the Employment Act. In this case the act of misconduct complained of by the respondent was that the applicant failed to attend a disciplinary hearing when invited to do so. This might constitute an act of misconduct for purposes of dismissal. It has been held in this court that insubordination is a serious act of misconduct warranting dismissal, see Mendulo v Malawi Revennue Authority [Matter Number IRC 161 of 2003 (unreported)]IRC. This is also the position of the law under section 59 of the Employment Act.


However before a decision to dismiss is arrived at, the employee must be given an opportunity to be heard to determine whether the failure to attend the hearing was intentional or the employee had a valid reason that prevented him for appearing before a hearing on the appointed day. The right to be afforded an opportunity to defend oneself and explain ones side of the story is guaranteed in section 57(2) of the Employment Act. This is called procedural justice or fairness.


Procedure

General Rule

The applicant alleged that he was not given an opportunity to be heard before the dismissal. Indeed there was no record of a hearing and the respondent conceded that the applicant was not given a hearing regarding the charge of insubordination and contempt of authority. This failure to afford the applicant a chance to explain his side and defend himself constituted unfair dismissal. In all dismissal cases an employer is legally obliged to give an employee an opportunity to defend himself, see section 57(2) of the Employment Act.


Exception

It is only where the employer cannot reasonably be expected to provide the opportunity to be heard like in a case of abscondment that the right to be heard can be dispersed with. In the instant case, there was proof that the respondent knew the contact details of the applicant. They also knew persons close to the applicant who could have been used to deliver a notice to the applicant. However the respondent proceeded to dismiss the applicant on allegation of insubordination and contempt of authority without first hearing out the applicant and without verifying whether he had received the notice of hearing or not and when?

Finding

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 27th day of May 2008 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON



Nick Chifundo Padambo

EMPLOYEES’ PANELIST



Aiman Malijani

EMPLOYERS’ PANELIST