IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE
REGISTRY

MATTER
NO. IRC 401 OF 2003

BETWEEN:

AMADU-ALI……………………………………………….
APPLICANT

-and-

NATIONWIDE TRANSPORT (KALARIA
WORKSHOP)……………………………………………..RESPONDENT

CORAM: R.
Zibelu Banda (Ms), Chairperson

Applicant-
present

Respondent-
Absent

Mpakani, Court clerk

JUDGMENT

Dismissal-
Justification for dismissal- Reason-Lodging a complaint against
employer-Section 57 (3) (g) Employment Act-Procedure-Right
to be
heard.

Facts

The
respondent employed the applicant in April 1998. He was dismissed
for lodging a complaint against the employer. The applicant

challenged the dismissal on the ground that he had not committed any
offence by asking the court to intervene in his misunderstanding
with
the employer.

The
respondent did not attend court despite indications that the notice
of hearing was delivered to them. There was no excuse for
failure to
attend court. It was therefore not in the interests of justice to
postpone the case as adjourning the matter would have
been
prejudicial and unfair to the applicant. In such situations the
matter must proceed in the absence of the other party, see
section 74
of the Labour Relations Act providing that if a party fails to attend
or to be represented at the proceedings of the
Industrial Relations
Court without good cause, the Industrial Relations Court may proceed
in the absence of that party or representative.

The Law

The applicable law in this
matter is the Employment Act and the Constitution, which in section
31 provides that every person has
the right to fair labour practices.
Fair labour practices entail the right to know the reason for
dismissal and the right to have
an opportunity to explain ones side
and defend oneself, see section 57 (1) and (2) of the Employment Act.

Reason

The burden of showing the
reason for dismissal and that it was a valid reason is on the
respondent, see section 61 (1) of the Employment
Act, which provides
that:

“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.”

In
Earl v. Slater and Wheeler (Airlyne) Ltd
[1973] 1 WLR 51 at 55, it was held that:

“It
is for the employer to show what was the principal or only reason
for dismissal and that it was a potentially valid reason.
If the
employer fails to discharge this burden, the tribunal must find that
the dismissal was unfair.”

In the
instant case the applicant told court that he had some
misunderstandings with the employer. After failing to resolve the

problems, the applicant lodged a complaint with the court. When the
employer received the court summons they proceeded to dismiss
the
applicant.

The
Issue

The issue was whether the
lodging of a complaint against an employer is ground for dismissal.

The law on
the issue is section 57 (3) (g) of the Employment Act which provides
that:

(3)The
following reasons do not constitute valid reasons for dismissal or
for the imposition of disciplinary action-

(g) the
filing of a complaint or the participation in proceedings
against an employer involving alleged violations of laws,

regulations or collective agreements.

Finding

The court
finds that the respondent did not have a valid reason for dismissing
the applicant, also see Monjedza V Cas
Security Services [Matter Number IRC 166
of 2003 (unreported)]. Therefore the dismissal was unfair and the
court so finds.

Assessment
of Remedy

The matter shall be set
down on a date to be fixed for assessment of appropriate compensation
under section 63 of the Employment
Act. The applicant must bring
evidence of financial loss, and he is encouraged to seek free legal
advice on the heads of compensation
and the standard of proof
required in such claims.

Any party
not satisfied with this decision is at liberty to appeal to the High
Court in accordance with section 65 (2) of the Labour
Relations Act
within 30 days of this date.

Pronounced
in open court this 3^rd
day of June 2005 at Lilongwe.

R.
Zibelu Banda (Ms.)

CHAIRPERSON.