IN THE INDUSTRIAL RELATIONS COURT OF
MALAWI

PRINCIPAL
REGISTRY

MATTER
NUMBER IRC 4 OF 2006

BETWEEN

KANYIKA…………………..……..……...…………………………….....
APPLICANT

-and-

PLASTIC PRODUCTS
LTD………..………...……………..................RESPONDENT

CORAM: R
ZIBELU BANDA (MS); CHAIRPERSON

NC KAJOMBO; EMPLOYEES’
PANELIST

A MALIJANI; EMPLOYERS’
PANELIST

Njanji; Personnel
Officer for the Respondent

Applicant; present

Gowa;
Official Interpreter

JUDGMENT

1. 
   Dismissal-Reason for
   dismissal- Misconduct-Disrupting work
2. 
   Procedure- Opportunity
   to be heard- and defend oneself-Employer to provide employee with
   the opportunity to be heard

Facts

The applicant
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.
Management
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
applicant’s response unsatisfactory.
They also stated in court that
they found the applicant’s 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.

The Law

An
employer is entitled to terminate the services of an employee who is
guilty of misconduct inconsistent with the fulfillment of
the
expressed or implied conditions of his contract of employment, see
section 59 of the Employment Act. In this case the applicant
was
found guilty of misconduct that was inconsistent with fulfillment of
his expressed conditions of service. The applicant it
was heard
incited other workers to stop work and demand pay on unscheduled day.
This is might be valid reason for termination.

However
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
unfair.

Procedure

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
applicant’s 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
hearing.
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.

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 26^th
day of May 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Nick
Chifundo Padambo

EMPLOYEES’ PANELIST

Aiman
Malijani

EMPLOYERS’ PANELIST