IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU REGISTRY

MATTER
NO. IRC 40 OF 2006

BETWEEN

MUSHANI……...……………………………….………………………….APPLICANT

-and-

ILLOVO SUGAR (MALAWI)
LTD……….………………………….RESPONDENT

CORAM: R. Zibelu
Banda (Ms.); Chairperson

Applicant;
Present

Respondent; Absent without
any excuse

Namponya; Official
Interpreter

JUDGMENT

1. 
   Dismissal-Justification-Reason-Must
   be based on allegations on charge sheet

2. 
   Procedure for
   dismissal-Opportunity to be heard-Hearing

3. 
   Hearing-Charge sheet-To
   outline allegations-Employee to answer to allegations on charge
   sheet

4. 
   Appeal- Appeals
   procedure form part of the process of ensuring that a dismissal is
   fair

Facts

After a disciplinary
hearing the applicant was dismissed for drawing stores items for jobs
that were not done; drawing of stores
items that did not match with
jobs indicated on stores requisitions and failing to account for
items drawn from stores. The applicant
was working as Packaging
Superintendent. He failed to defend himself from the three
allegations cited above. He claimed that the
dismissal was unfair
because the allegations for which he was invited for a hearing were
different from the reasons that appeared
on his letter of dismissal.

Issues

Whether the applicant’s
dismissal was based on reasons for which he did not have an
opportunity to respond to at a hearing? Whether
under the
circumstances of the case the applicant was entitled to claim the
employer’s pension contributions and compensation
for unlawful
dismissal.

The Law

The charge sheet was
tendered as AP2, it laid down three allegations which were exactly
those that appeared on the latter of termination
tendered as AP1. The
court finds that the applicant’s claim in frivolous and lacks any
merit, it is dismissed. Consequently the
applicant is not entitled to
compensation for unfair dismissal.

The
applicant was summarily dismissed. He claimed the employer’s
pension contribution. The applicant did not show any basis for

claiming employer’s pension contributions. Pension is governed by
contract and any claims arising out of pension benefits must
be based
on a contract. In the absence of supporting evidence, the court has
no choice but to dismiss this claim.

Appeal

It was noted that the
applicant had two opportunities to defend himself. He appeared before
an appellate body. He was not able to
convince this forum. The law
provides that appeal procedure form part of the process of ensuring
that a dismissal is fair, see
Prindella V Limbe Leaf Tobacco
Ltd [Matter Number IRC 49/2002 (unreported)].

Finding

The court finds that the
applicant’s claims had no merit and therefore they are dismissed.
Any party aggrieved by this decision
is at liberty to appeal to the
High Court on matters of law and or jurisdiction only within 30 days
of this judgment: Section 65(2)
Labour Relations Act.

Pronounced
this 30^th day of January 2007 at BLANTYRE

Rachel
Zibelu Banda

CHAIRPERSON