IN THE INDUSTRIAL RELATIONS COURT OF
NUMBER IRC 4 OF 2006
ZIBELU BANDA (MS); CHAIRPERSON
NC KAJOMBO; EMPLOYEES
A MALIJANI; EMPLOYERS
Officer for the Respondent
dismissal- Misconduct-Disrupting work
to be heard- and defend oneself-Employer to provide employee with
the opportunity to be heard
and fellow workers were demanding that they should receive wages
earlier than usual because pay day at this particular
time fell on a
week end. This demand disrupted work as workers gathered in the
personnel office asking for pay instead of working.
considered that the applicant was the ring leader. They invited him
to a hearing to ask him why he was inciting other
workers to stop
work and demand early pay? The applicant stated that he was not the
ring leader and that he did not know anything
about what was going on
in relation to the issue of work stoppage. Management found the
applicants response unsatisfactory.
They also stated in court that
they found the applicants attitude uncooperative and arrogant.
They subsequently dismissed him.
The applicant was aggrieved by this
decision and he brought out this action in this court alleging unfair
dismissal and seeking
remedy of compensation.
employer is entitled to terminate the services of an employee who is
guilty of misconduct inconsistent with the fulfillment of
expressed or implied conditions of his contract of employment, see
section 59 of the Employment Act. In this case the applicant
found guilty of misconduct that was inconsistent with fulfillment of
his expressed conditions of service. The applicant it
incited other workers to stop work and demand pay on unscheduled day.
This is might be valid reason for termination.
the respondent failed to prove that the applicant was the ring leader
in this fracas. They also failed to show court on
a balance of
probability the involvement of the applicant in this issue. In all
dismissal cases the onus is on the employer to
prove that the
applicant was guilty of misconduct or incapacity as the case may be,
see section 61(1) of the Employment Act. Where
the employer fails to
give or substantiate the reason they give, there is a conclusive
presumption that the dismissal was unfair.
The court in this matter
found that the reason was not substantiated and therefore concluded
and found that this dismissal was
Although the applicant was
given a hearing, the court found that the reason was not
substantiated. In other words the respondent
did not consider the
applicants defence and side of the story. The hearing was merely
cosmetic as it did not provide any evidence
of wrong doing or facts
to substantiate the allegation. The respondent did not show court
what evidence they used to prove the
case against the applicant.
In all dismissal cases the employer must satisfy two elements
namely (a) there must be a valid reason (b) there must be a fair
Failure to satisfy any one of these two elements
automatically leads to unfair dismissal, see Beseni v Education
Department of Nkhoma Synod [Matter Number IRC 42 of 2001
(unreported)]IRC and also see Gama v St Pauls Cathedral
[Matter Number IRC 220 of 2006 (unreported)]IRC.
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
aggrieved by this decision is at liberty to appeal to the High Court
within 30 days of this judgment.
day of May 2008 at BLANTYRE.