Court name
Industrial Relations Court
Case number
IRC Matter 180 of 2006

Mtambo v Iponga Supermarket (IRC Matter 180 of 2006) [2008] MWIRC 6 (29 January 2008);

Law report citations
Media neutral citation
[2008] MWIRC 6
Coram
Null

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
a
pplicant 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 th
e
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