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 29^th day of May 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Maxwell
R Padambo

EMPLOYEES’ PANELIST