IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 244 OF 2005

BETWEEN

CHAGOMERANA
……………………………………………………….
APPLICANT

-and-

COFFIN
WORKSHOP JOINERY …………………………………...
RESPONDENT

CORAM: R.
ZIBELU BANDA (Ms); CHAIRPERSON

Malijani;
Employers’ Panellist

Padambo;
Employees’ Panellist

Applicant;
Present

Respondent;
Absent no excuse

Chinkudzu;
Official Interpreter

JUDGMENT

1. 
   Dismissal-Reason-Employer
   to provide reason-Reason to be valid

2. 
   Burden of
   proof-Employer bears 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
applicant was employed on 13 April 1997.
She was dismissed on 17 March 2005. She gave evidence that she had a
misunderstanding with
a fellow employee. Without any enquiry as to
what had transpired, the respondent dismissed the applicant. She
alleged that the
dismissal was unfair. She was not given a valid
reason for the dismissal and she was not given an opportunity to be
heard before
the dismissal. The applicant claimed severance
allowance, notice pay, leave grant (for two years 2003 and 2004) and
compensation
for unfair dismissal. 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 had a
misunderstanding with her colleague. The respondent proceeded
to
dismiss the applicant on that basis. The
main reason for the dismissal was not known and the respondent did
not attend court to show court what the reason for the dismissal
was.
The applicant further averred that she was not given an opportunity
to be heard before the dismissal. The respondent was not
present to
contradict this evidence.

Finding

The
court finds that the respondent contravened
the law of employment. They did not give the applicant a reason for
dismissal when it
was their responsibility to. They did not show
court the main reason for dismissal and they did not give the
applicant an opportunity
to be heard as required by section 57(1) and
(2) of the Employment Act.

Remedies

The
applicant had worked for eight years. She
is therefore entitled to notice pay being MK2
700-00 (her one month salary). She is
also entitled to severance allowance calculated at three weeks wages
for each year of service being
MK2 025 X 8 years= MK16
200-00. The applicant is also entitled
to leave grant for two years to be determined. The applicant is also
entitled to compensation for
unfair dismissal to be assessed. A
notice of assessment of compensation shall be issued in due course.
Both parties shall be required
to attend the assessment. The specific
awards now made are with immediate effect.

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 30^th
day of January, 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Maxwell
R Padambo

EMPLOYEES’ PANELIST