IN THE INDUSTRIAL RELATIONS COURT OF
MALAWI

PRINCIPAL
REGISTRY

MATTER
NUMBER IRC 173 OF 2006

BETWEEN

TRAPENCE………………..……..……...…………………………….....
APPLICANT

-and-

MRA…………………………………...………..………...……………...RESPONDENT

CORAM: R
ZIBELU BANDA (MS); CHAIRPERSON

NC KAJOMBO; EMPLOYEES’
PANELIST

A MALIJANI; EMPLOYERS’
PANELIST

Mbutwa; of Counsel
for the Respondent

Chayekha; of Counsel for
the Applicant

Chinkudzu;
Official Interpreter

JUDGMENT

1. Dismissal-Reason
   for dismissal- Misconduct-Insubordination-Contempt of
   authority-Failure to attend disciplinary hearing
2. 
   Procedure-
   Opportunity to be heard- and defend oneself-Employer to provide
   employee with the opportunity to be heard-Unless Employer
   cannot
   reasonably be expected to provide the opportunity

Fact

The applicant was dismissed from services
of the
respondent with immediate effect on grounds of ‘conduct
unacceptable to the respondent such as insubordination and contempt

of authority’. The material facts are that the applicant was
answering charges of indiscipline. He was suspended from duties

pending investigations and disciplinary hearing. Subsequently the
respondent sent a letter to the applicant inviting him to a
disciplinary hearing. The applicant did not attend the hearing. It
was on the basis of this failure to attend a disciplinary hearing

that the respondent dismissed the applicant. The respondent construed
this failure to attend a disciplinary hearing as an act of

insubordination and contempt of authority. The respondent carried out
the dismissal without a hearing. The applicant challenged
the
dismissal on that ground. Contending that if he had been afforded an
opportunity to be heard he would have been able to defend
himself
because he had a good reason. The applicant’s explanation was that
he did not receive the invitation notice in time for
the hearing.

The Law

An
employer is entitled to terminate the services of an employee who is
guilty of misconduct or incapacity, see section 57(1) of
the
Employment Act. In this case the act of misconduct complained of by
the respondent was that the applicant failed to attend
a disciplinary
hearing when invited to do so. This might constitute an act of
misconduct for purposes of dismissal. It has been
held in this court
that insubordination is a serious act of misconduct warranting
dismissal, see Mendulo v Malawi Revennue
Authority [Matter Number IRC 161 of 2003
(unreported)]IRC. This is also the position of the law under section
59 of the Employment Act.

However
before a decision to dismiss is arrived at, the employee must be
given an opportunity to be heard to determine whether the
failure to
attend the hearing was intentional or the employee had a valid reason
that prevented him for appearing before a hearing
on the appointed
day. The right to be afforded an opportunity to defend oneself and
explain ones side of the story is guaranteed
in section 57(2) of the
Employment Act. This is called procedural justice or fairness.

Procedure

General Rule

The applicant
alleged that he was not given an opportunity to be heard before the
dismissal. Indeed there was no record of a hearing
and the respondent
conceded that the applicant was not given a hearing regarding the
charge of insubordination and contempt of
authority. This failure to
afford the applicant a chance to explain his side and defend himself
constituted unfair dismissal. In
all dismissal cases an employer is
legally obliged to give an employee an opportunity to defend himself,
see section 57(2) of the
Employment Act.

Exception

It is only where the
employer cannot reasonably be expected to provide the opportunity to
be heard like in a case of abscondment
that the right to be heard can
be dispersed with. In the instant case, there was proof that the
respondent knew the contact details
of the applicant. They also knew
persons close to the applicant who could have been used to deliver a
notice to the applicant.
However the respondent proceeded to dismiss
the applicant on allegation of insubordination and contempt of
authority without first
hearing out the applicant and without
verifying whether he had received the notice of hearing or not and
when?

Finding

The court finds that the
dismissal was unfair and that the applicant is entitled to a relief
as pleaded. The matter shall be set
down on a date to be fixed to
consider 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 27^th
day of May 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Nick
Chifundo Padambo

EMPLOYEES’ PANELIST

Aiman
Malijani

EMPLOYERS’ PANELIST