Sambani v Tea Resaerch Foundation (118 of 2002)  MWIRC 12 (03 March 2008);
INDUSTRIAL RELATIONS COURT OF MALAWI
NO. IRC 118 OF 2002
TEA RESEARCH FOUNDATION
- CORAM: R. ZIBELU
BANDA (MS.); CHAIRPERSON
M PADAMBO; EMPLOYEES
Zambezi; For Respondent
Reason-Operational Requirements of the Respondent-Retrenchment
The applicant was employed
by the respondent on 24 July 1994. Her services were terminated on 31
January 2002. The reason for termination
related to the Respondents
operational requirements that necessitated carrying out some
retrenchments due to financial problems.
The applicant was informed
of the financial difficulties facing the respondent prior to the
termination. The applicant challenged
the termination arguing that
the termination was unfair. She sought the remedy of reinstatement.
She also claimed salary arrears
and balance on severance allowance.
The respondent denied liability.
Section 57(1) of the
Employment Act provides that before dismissal a person must be
provided with a valid reason. While section
57(2) of the act provides
that where the reason is connected with a persons capacity or
conduct, he must be given an opportunity
to be heard.
case the reason for the termination was retrenchment. The Employment
Act in section 57(2) seems to preclude an employer
from providing a
hearing in cases where the termination is necessitated by reason of
operational requirements of the respondents
this court has decided that an employer has an obligation to conform
to some kind of hearing procedure even
in cases where the termination
is due to operational requirements of the employers enterprise. It
is not a disciplinary hearing
but a consultation process where the
employer gives notice to the employee of the situation and the
employee appreciates the problem.
In this case there was doubt that
the respondent was facing financial problems. They had to close down
some departments including
the applicants. The applicant seemed to
have appreciated the situation but was not happy that she was not
given ample notice
to prepare for the termination. The court
involving theft has been held to constitute valid ground for
dismissal, see: Ibrahim v Suncrest Creameries Ltd [Matter
Number IRC 73 of 2003 (unreported)] IRC.
matter the applicant admitted that he had taken out the tin. He also
admitted attending a disciplinary hearing. He said
he had a good
reason for taking out the tin; that he had bought it. He attempted to
explain the buying process to the court but
explanation did not show that he had bought the tin. There was no
evidence. The court was not convinced with
explanation. The court found as a fact that the applicant had no
authority to take out the tin.
The court finds that the
reason for dismissal was valid and that the applicant was accorded an
opportunity to state his case before
dismissal. The respondent
complied with the requirements of the law. This action is therefore
dismissed in its entirety.
- 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
this 4th day of March 2008 at BLANTYRE.