Jekapu v Supa Bake Ltd (IRC 194 of 2066 ) (194 of 2066) [2008] MWIRC 26 (29 May 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY


MATTER NO. IRC 194 OF 2006


BETWEEN

JEKAPU…...…..………………………………………… ……………......APPLICANT


-and-

SUPA BAKE LTD……………………………..………... ……………..RESPONDENT


CORAM: R. ZIBELU BANDA (MS.); CHAIRPERSON
A MALIJANI; EMPLOYERS’ PANELIST
M PADAMBO; EMPLOYEES’ PANELIST
Nampota; Finance & Administration Officer for the Respondent
Applicant; Present
Gowa; Official Interpreter

JUDGMENT

Facts

The respondent employed the applicant on 1 January 2004 as Electrician. He was dismissed on 21 April 2004. The reason for dismissal was incompetence. It was alleged that the applicant was not able to maintain equipment that he was employed to maintain. Instead he gave excuses why broken down equipment could not be fixed. The respondent had to invite private contractors or had to bring in Electricians from other duty stations to maintain the equipment. The respondent found such exercise time consuming and costly. The applicant was invited to a hearing to explain his failure to perform work that he was employed to do. His explanation was no satisfactory. The respondent decided to dismiss the applicant. The applicant challenged the termination alleging that the reason was not justified and claimed notice pay, overtime and severance allowance. The respondent contested the action.


The Law

Reason

Incapacity is ground for termination according to section 57(1) of the Employment Act. In this case the respondent proved on a balance of probabilities that the applicant could not perform work that he was employed to do. His reasons for failure to do his work were not satisfactory. The court found as a fact that the applicant was incompetent as alleged by the respondent. Lack of skill that the employee expressly or by implication holds himself to possess is ground for summary dismissal under section 59 of the Employment Act. The reason for dismissal was valid.


Procedure

Section 57(2) of the Employment Act provides that where reason for dismissal relates to capacity the employer must give the employee an opportunity to be heard before termination. It was heard in this case that the respondent had invited the applicant to a hearing. Before this, the respondent had used other private electricians at an extra cost to do the applicant’s work. The applicant was warned for incompetence. The court finds that the applicant had been given an opportunity to improve and to be heard before dismissal.


Finding

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


Whether Notice Pay, Severance Pay and Overtime are Payable?

Sections 29, 35 and 39 of the Employment Act make provisions for payment of notice, severance allowance and overtime respectively.


Notice Pay

Section 29 of the Employment Act makes provision for notice pay. Notice pay is payable in lieu of serving notice prior to termination. In this case the court found that the applicant was not paid notice pay in lieu of notice. The fact that the respondent had lost money due to the applicant’s incompetence is not reason enough to exclude the applicant from receiving notice pay. The court orders the respondent to pay the applicant an equivalent of one month salary as notice pay with immediate effect.


Severance Pay

Severance allowance is provided in section 35 of the Employment Act. It is payable to an employee who has served his employer for at least one year. The First Schedule to section 35 of the Employment Act provides the computations for severance allowance. The minimum period of service provided is one year. Therefore any employee who serves an employer less than one year is precluded from receiving severance allowance. There is logic in this period system as it reflects the intention of the legislature that severance allowance is a token of appreciation to long serving and deserving employees. In this matter the applicant had only worked for three months. He is therefore not entitled to severance allowance.


Overtime

Section 39 of the Employment Act provides for overtime. An employee is entitled to overtime where he works over and above the normal working hours. In order to claim overtime an employee must show that he had worked over and above the normal hours. He further must show that he was authorized to work extra hours over the normal hours. He further must show the exact hours and days on which he had worked overtime. The onus of proving these elements is on the one claiming overtime; the employee. In this matter the applicant was not able to prove any of the above. The claim was unsubstantiated and it is dismissed.





Right of Appeal

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 29th day of May 2008 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON



Aiman Malijani

EMPLOYERS’ PANELIST



Maxwell R Padambo

EMPLOYEES’ PANELIST