IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL REGISTRY SITTING AT THYOLO
MATTER NO. IRC TO 350 OF 2008
BETWEEN:
CHARLES MANDALA ………………………………………….. APPLICANT
AND
PHIRI BUILDING CONTRACTORS …………………………RESPONDENT
CORAM:
J. NRIVA DEPUTY CHAIRPERSON
D.Z. Namandwa Employers’ Panellist
E. Mtenje Employees’ Panellist
Applicant Present
Respondent represented by Mr. Imran Kasim
Administration Manager
Clerk: Mr. Gowa
RULING
The applicant was working as a guard for the respondent who is a
building contractor. He was guarding a completed house. He was also
sleeping in the very house he was guarding. The respondent brought in a
new guard and advised the applicant to move on to another location
nearby. At that location, there was a house to be yet constructed. The
applicant refused to go to the new location. In our view, the applicant
refused to take an instruction from his employer. And by refusing the
relocation, he had, in our view, technically abandoned his employment. In
other words, he had technically resigned. He cannot, therefore, correctly
claim unfair dismissal from his employer. He has not actually proved that
he was dismissed. And having failed to prove dismissed, we cannot call on
the respondent to prove that the dismissal was fair for there was no
dismissal in the first place.
We only call employers to prove fairness where there is proof of
dismissal. Dr Chilumpha suggests in chapter 1 of Unfair Dismissal and
Remedies that the employee simply has to show that he was dismissed.
Then it becomes incumbent on the employer to prove that he acted with
[equity and] fairness
:
First, it is for the employee to prove that he was dismissed by
the employer. Specifically, he must show that his
employment was terminated by, or at the initiative of, the
employer. Second, having proved the dismissal, the
employee is not required to go further and show that it was
unfair. On the contrary, at that point the evidential onus shifts
to the employer to prove that the termination of employment
was in fact fair. To quote the South African Labour Court,
‘the employer is statutorily bound to establish the fairness of
its employee’s dismissal’. And to discharge that burden, the
employer must show that he complied with Sections 57 and
61. The wording of these provisions clearly casts upon him
the onus of proving the fairness of a dismissal. They require
him first and foremost, to demonstrate that he terminated the
employment for a reason, and not just on a whim. In fact
Section 61(1) places him under a statutory duty to provide
the reason. Having brought the employment to an end, he
should be able to give the reason for doing so. Failure to
provide the reason creates ‘a conclusive presumption that
the dismissal was unfair.’
Besides giving the reason, the employer must also show that
the reason is ‘valid’ and is ‘connected with the capacity of
conduct of the employee’ or is ‘based on the operational
requirements of the undertaking’.
In this matter, the applicant has hardly exhibited that he was
dismissed. We, therefore dismiss the applicant’s claim in its entirety.
The applicant has a right of appeal subject to section 65 of the
Labour
Relations Act.
PRONOUNCED in Open Court at Thyolo this 4th day of October 2011
J. Nriva
DEPUTY CHAIRPERSON
D.Z. Namandwa
EMPLOYERS’ PANELLIST
E. Mtenje
EMPLOYEES’ PANELLIST