PRINCIPAL REGISTRY
MATTER NO. IRC 284 OF 2002
BETWEEN:
-and-
CORAM: R. Zibelu Banda (Ms.), Deputy Chairperson
Applicant
Charles
Kamanga – Sales Manager for Respondent
Ngalauka – Court Clerk
Justification for dismissal-Reasons for dismissal-Probationary period-Compensation
The applicant Watson Katawa was employed as sales
and merchandise officer by the respondent, Warpack (Private) Limited, on
The issues that arose in the case were that the
applicant was not given reasons for dismissal. As a result of this omission he
could not defend himself or challenge the reasons for termination. In the action he is claiming remedies for the
unfair dismissal.
Upon
hearing the applicant and the respondent the court finds that the termination
of the applicant’s employment was unfair on grounds of technicality. The
applicant was entitled to know the reasons for his termination of employment so
that he could defend himself accordingly. This is a legal requirement under
section 57 (1) (2) of the Employment Act, which stipulates that:
Section 57 (1) “The employment of an employee shall not be
terminated by an employer unless there is a valid reason for such termination
connected with the capacity or conduct of the employee or based on the
operational requirements of the undertaking.”
Section 57(2) “The employment of an employee shall not be
terminated for reasons connected with his capacity or conduct before the
employee is provided an opportunity to defend himself against the allegations
made, unless the employer cannot reasonably be expected to provide the
opportunity.”
The
burden of proving the reasons for the dismissal lies on the respondent. See
section 61 of the Employment Act. Where these provisions have not been complied
with there is a presumption that the dismissal was unfair. The respondent was
required on a balance of probabilities to prove that they had given the
applicant with the reasons for the dismissal and that he was afforded an
opportunity to defend himself against the allegation. The respondent failed to
rebut this presumption and on evidence it was proved that the dismissal was
unfair. See Earl v. Slater &Wheeler (Airlyne) Ltd. [1973]1
WLR, 51 at 55.
REMEDIES
A
successful applicant in an un fair dismissal claim is entitled to a remedy as
provided in section 63 of the Employment
Act. The first remedy to be taken into
consideration is the remedy of reinstatement. This is where the court after
looking at all circumstances of the case and after hearing from both the
applicant and respondent may order that the applicant be re employed by the
respondent at the same grade as before and with the same entitlements and
privileges without a break in the employment.
It transpired during proceeding that the applicant’s
performance was unsatisfactory. Although he was still serving probationary
period, he was verbally warned for misconduct. He was accused of making false
overtime claims, he left the office without permission and he was representing
himself to people and customers as a much more senior staff member than what he
was actually employed for. This was a misrepresentation that could mislead
customers at the place of the respondent’s business.
If
it were not for the technical omission on the part of the respondent the
applicant would have been fairly dismissed. In fact what the respondent should
have done was not to confirm the applicant in his employment. The purpose of
putting people on probation is to assess their conduct and capacity in the new
employment. If they are not up to scratch, it is legally correct to inform them
that they are not suitable or capable to perform the work for which they were
asked to do.
In
considering the remedies the court looks at all circumstances leading to the
dismissal. The applicant could not be reinstated because he had shown bad
characteristics while on probation. The next remedy to consider is the remedy
of compensation.
Compensation
Section
63 (4) of the Act makes provision for and guidance to court on
compensation. This section provides
that:
“An award of compensation shall be such amount as the court considers
just and equitable in the circumstances having regard to the loss sustained by
the employee in consequence of the dismissal in so far as the loss can be
attributable to action taken by the employer and the extent, if any, to which
the employee caused or contributed to the dismissal.”
When
considering what remedy to award the court looks at all factors leading to the
dismissal including the applicant’s contribution if any. It has been abundantly
proved by the respondent that the applicant contributed to his dismissal. There
is abundant case law both locally and internationally where courts and
tribunals have reduced a compensatory award where it is proved that the applicant
contributed to the dismissal. For instance,
in Earl v. Slater & Wheeler cited above at 58 Sir John
Donaldson in upholding the lower court’s decision to dismiss the employee’s
claim for compensation said:
“We do not think there is any room in this field for
the award of nominal compensation and in
the light of the tribunal’s finding that the employee suffered “no conceivable
injustice” they must, even if they had found unfair dismissal, have assessed
the compensation at nil. …we consider that the employee’s claim for
compensation was rightly dismissed.”
A similar decision was arrived at in this court in,
Friday Chigwenembe V. Tafika Civil Engineering and Building
Contractors Limited (Matter
number IRC 124 OF 2001) (unreported).
Considering
the applicant had worked for the respondent for less than six months and had
been verbally warned for misconduct during that period, The court would put his
total contribution to the dismissal at 100%. This means although the applicant
has succeeded in his main claim for unfair dismissal, he fails to get any
compensation. The rationale is that the applicant had suffered no loss due to
the dismissal. If the respondent had complied with procedure and given him the
reasons, the applicant would have been dismissed any way.
Repatriation
There
is no proof to show that the applicant was to be repatriated after termination
of his employment with the respondent. The understanding was that the applicant
was informed he would be stationed in Lilongwe and it was up to the parties to
agree on repatriation if there was such need. The court has no information of
such agreement, hence the claim on this ground must fail. The court makes no
award as to repatriation expenses.
Pronounced
in Open Court
this …… day of ………… 2003 at LIMBE.
R. Zibelu Banda (Ms.)
DEPUTY CHAIRPERSON