Saidi v Limbe Leaf Tobacco Ltd (IRC Matter 409 of 2005) [2007] MWIRC 80 (30 December 2007);
IN THE INDUSTRIAL RELATIONS COURT OF
MALAWI
PRINCIPAL
REGISTRY
MATTER
NUMBER IRC 409 OF 2005
BETWEEN
SAIDI
..
..
...
...
..
APPLICANT
-and-
LIMBE LEAF TOBACCO
LTD
.
..
...
...RESPONDENT
CORAM: R
ZIBELU BANDA (MS); CHAIRPERSON
MRN PADAMBO;
EMPLOYEES PANELIST
JE CHILENGA;
EMPLOYERS PANELIST
Mpaka; of Counsel
for the Applicant
Respondent; Absent no
excuse
Nyabanga;
Official Interpreter
JUDGMENT
Dismissal-Reason for
dismissal- Misconduct- Absenteeism
Burden of proof-In
dismissal cases burden on employer to show reason for
dismissal-Employer must substantiate the reason
Failure to prove
reason-Conclusive presumption of unfairness
Procedure- Opportunity
to be heard- and defend oneself-Employee to be given a chance to
explain his side and defend himself
Facts
The applicant
was employed on 25 September 2001. He was dismissed on 28 September
2004. The reason for dismissal was absenteeism.
The applicant
admitted that he was absent from duty from 5 September 2004 to 26
September 2004. The reason for absenteeism was
that he had been
arrested by the police on a charge of assault and that he was
incarcerated for 21 days. The applicant sent notification
to the
respondent about his detention. Upon his release he reported back to
the office but he was dismissed without any hearing
and without any
notice or terminal benefits. The applicant took out this action
claiming that the termination was unfair. The respondent
was invited
to a hearing but they did not attend court. No reason was given for
non attendance. The court invoked provisions of
section 74 of the
Labour Relations Act and proceeded to dispose of the case.
The Law
Section 59 of
the Employment Act provides that absenteeism is ground for dismissal
where no permission is granted and the reason
for the absenteeism is
not valid. The applicant alleged that he was absent from work for a
valid reason that entitled him to unpaid
leave according to Clause
13(c) of the Conditions of Service. That clause provides that an
employee shall not be paid anything
if he was absent from duty due to
the reason that he was under police custody. The applicant therefore
alleged that the only punishment
that the respondent could impose on
him was to deny him any pay for the days that he was absent and not
to dismiss him.
Where
there is an allegation of dismissal, the burden is on the employer to
show that there was a valid reason for the dismissal
and that
employer acted with fairness before dismissal. In the absence of such
proof there is a conclusive presumption that the
dismissal was unfair
(section 61 Employment Act). The court having read the relevant
clause and the respondent not being available
at the court to provide
any evidence contrary to that of the applicant, or to substantiate
the reason, finds that the reason for
dismissal was not valid.
Procedure
The applicant
alleged that he was not given a hearing before the dismissal. The
court finds that the respondent did not comply with
a fair procedure
before dismissal
Finding
The Court finds that the
respondent did not comply with the law. The reason was not valid and
the applicant was not given any hearing.
The respondent violated
section 57 of the Employment Act. This termination was therefore
unfair .
Assessment
of Award
The applicant is entitled
to an award under section 63 of the Employment Act. He is also
entitled to notice pay and severance allowance
as claimed. The court
shall set down a date to assess 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 31st
day of December 2007 at BLANTYRE.
Rachel
Zibelu Banda
CHAIRPERSON
Maxwell
RN Padambo
EMPLOYEES PANELIST
Joel
Evalisto Chilenga
EMPLOYERS PANELIST