IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 64 OF 2006

BETWEEN

MAGANGA………………...
……………………………………………. APPLICANT

-and-

RAIPLY
MW LTD……………………………………………………..
RESPONDENT

CORAM: R.
ZIBELU BANDA (Ms); CHAIRPERSON

NAMANDWA
D; Employers’ Panellist

PADAMBO M; Employees’
Panellist

Mwala; of Counsel for
the Applicant

Respondent; Absent
without excuse

Gowa; Official
Interpreter

JUDGMENT

1. 
   Dismissal-Reason-Misconduct-Neglect
   of Duty-Leaving duty station without permission

2. 
   Employer bears burden
   of proving reason for dismissal

Facts

The
Applicant was employed as Production
Supervisor. On the material day he left his duty station to visit a
dispensary (clinic). Later he was invited by
management to be asked
why he had left his duty station. He explained that it was because he
had visited the clinic. He received
a letter of termination. The
letter referred to another incident where the applicant had allegedly
neglected his duties by leaving
his work station without permission.
The applicant challenged the termination. He contended that he was
away from his duty station
for a good reason. He said that as
Production Supervisor he was required to move around the premises for
supervision. He was not
expected to be stationery at one spot.

The
respondent did not attend court to substantiate the alleged case of
neglect of duty. The court proceeded to
hear the matter in the absence of the respondent in accordance with
provisions of section
74 of the Labour Relations Act.

The
burden of showing a reason for dismissal and substantiating it is on
the employer. Where the employer fails to prove the reason
there is a
conclusive presumption that the dismissal was unfair, see section 61
of the Employment Act. And the court so finds.

Finding

The
termination was unfair. The reason for dismissal was not
substantiated with evidence. Applicant is entitled to compensation.

The matter shall be set down on a date to
be fixed to assess compensation.

Any
party aggrieved by this decision is at liberty to appeal to the High
Court in accordance with section 65 of the Labour Relations
Act.

Made
this 26^th
day of May 2008 at BLANTYRE

Rachel
Zibelu Banda

CHAIRPERSON

Daphter
Namandwa

EMPLOYERS’ PANELIST

Maxwell
RM Padambo

EMPLOYEES’ PANELIST