Mtambo v Iponga Supermarket (IRC 180 of 2006 ) (180 of 2006) [2008] MWIRC 6 (30 January 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC PR 180 OF 2006


BETWEEN


MTAMBO………………………………………………………………. APPLICANT


-and-


IPONGA SUPERMARKETS ……..………………………………….. RESPONDENT


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


JUDGMENT

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

  2. Burden of proof-Employer bears of 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 8 March 2000. She was dismissed on 19 April 2006. She gave evidence that she reported for late for work. She was late by 10 minutes. She was late because she had transport problems. She tried to talk to her boss that she had a valid reason for reporting late. However the plea fell on deaf ears. She told court that this was not the first time she had reported late for duties. She however felt that the dismissal was unfair and she claimed compensation for unfair dismissal, lunch allowance and transport allowance. 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 was late for duties. The respondent did not attend court to show court whether, how and why this was an act of serious misconduct warranting the extreme punishment of dismissal. The respondent did not show court whether the applicant had been warned before for similar misconduct. The respondent did not show court whether the act of the applicant was done deliberately or indeed she had a valid reason for reporting late. The respondent was not present to contradict the applicant’s evidence that her late reporting for work was due to a valid reason concerning transport problem.


Finding

The court finds that the respondent contravened the law of employment. They did not give the applicant a valid reason for dismissal when it was their responsibility to do so. They did not show court the main reason for dismissal and justification as required by section 57(1) of the Employment Act.


Remedies

The applicant had worked for six years. She is therefore entitled to compensation for unfair dismissal to be assessed. She is also entitled to severance allowance if it was not paid; lunch allowance and transport allowance for the notice period. A notice of assessment of compensation and allowances shall be issued in due course. Both parties shall be required to attend the assessment.


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



Nick Chifundo Kajombo

EMPLOYEES’ PANELIST