Munthali v G4S Malawi (Limited) (IRC MATTER 64 of 2017) [2020] MWIRC 2 (30 April 2020)

atone eee aistrar Ceictiog iG Con 08 iia on iS iA} cugd ef. ba a te So THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 64 OF 2017 BETWEEN VICTOR MUNTHALL jisssnasssuscsovnvcevecsssorsaescescsesecevenss verses APPLICANT G4S (MALAWI) LIMITED ................ ccc cececeeceee sense eee eees RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MR PRINCE MPASEAKUPHE, EMPLOYERS’ PANELIST MR ALEXANDER B. LUNGU, EMPLOYEES’ PANELIST APPLICANT / PRESENT/ UNREPRESENTED MR KHUMBO BANDA, RESPONDENT'S HUMAN RESOURCES OFFICER MR HEZRONE MHONE, COURT CLERK JUDGEMENT APPLICANT'S CASE The applicant herein through his IRC Form 1 claims damages for unfair dismissal and Notice pay from the Respondent where he had worked as a Security Guard but his services got terminated allegedly for taking medication for his mental illness. He says he had worked for 24 days and was only paid K7,000.00 instead of K9,000.00 and was not paid Notice pay. RESPONDENT'S CASE The Respondent through Mr Knumbo Banda stated that the applicant joined G4S on 27h December, 2010 having declared his mental health status as sound as per exhibit marked GAS 1. He then signed the contract form marked as exhibit GAS 2. 1 A few days later his supervisor discovered that the applicant was not mentally sound as he was admitted at a hospital for mental illness. When he reported for duties, he was charged with the offence of giving false information on 13th January, 2011 as per exhibit G4 3. The applicant replied to the charge by saying that he did not understand what the form meant - see Exhibit G4S 4. On 20th January, 2011 the applicant sent a resignation letter after failing to turn up for a disciplinary hearing scheduled for 18! January, 2011. He cited health conditions as the reason for his resignation. From then on, he was never seen. The witness then tendered the said resignation letter marked as G4§ 5. During cross — examination, the witness said that he was not present when the applicant was being interviewed for employment but that everything was documented and that the applicant filled in various forms given to him. He further said that the applicant has never been implicated in any theft allegations and that when he resigned he came last year asking for re-employment but his request was turned down. ANALYSIS OF THE EVIDENCE AND THE LAW Sections 57 and 58 of the Employment Act are to the effect that employment can only be brought to an end due to misconduct, incapacity and on operational requirements of the undertaking. For section 57 (2), if it is based on incapacity or misconduct, then the employee must be provided with opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity. So for an employee to be successful on a claim of unfair dismissal, the employment needs to be brought to an end by the deliberate act of the employer; i.e., Section 57 implies that the concept of unfair dismissal presupposes that the employer terminates the employment. In the instant case herein, it will be observed that there are two Issues at play namely (1) discharge by breach or by frustration and (2) resignation. A discharge by breach by either party goes to the root of the contract. For instance in the case of Spiers V. Poussard (1876) QBD410, the plaintiff was engaged by the defendant to play a leading part in an opera. However due to illness she Could not appear in the first few performances and had to be replaced by a substitute who agreed to perform only if she was engaged for a month. After four performances, the plaintiff returned and offered to take over. The Court held that her failure to appear for first performance went to the root of the contract and terminated the contract altogether. On frustration, the contract of employment being a personal service, the same can be frustrated by incapacity of the employee arising from illness. Of course illness per se is not a frustrating factor unless it incapacitates the employee for a period that goes to the root of the contract. See Dr Cassim Chilumpha, Labour Law, 2004 p.p. 426 — 427 For resignation, the same is a form of termination by the employee where he/she is required to give the employer notice and that it must be voluntary. Having gone through the evidence, the applicant's claim cannot succeed as there's a fundamental frustration of the contract of employment herein, namely his mental illness, beside the issue of his tendering a resignation letter after failing to appear for a disciplinary hearing on the charge of giving false information as regards with his mental soundness. The applicant started work with G4S on 27!" December, 2010 and by 13 January, 2011, he was being summoned for the above charge which he never heard for not availing himself. Honestly, this is too short a period for one to begin to consider that the employer should have done otherwise on the applicant's mental condition. The contract of employment herein was frustrated at the very beginning and the breach hereof was fundamental going to the root of the contract such that the claim for unfair dismissal cannot succeed. On the claim for notice pay, the applicant having resigned, it was supposed to be him to give notice to the Respondent and not otherwise. As such this claim too fails. Any aggrieved party has got the right of appeal within 30 days from today as per the provisions of sections 65 of the Labour Relations Act. Made at Mzuzu this 30th April, 2020 in Open Court. K. D MLUNGU DEPUTY C RPERSON PRINCE MPASEAKUPHE EMPLOYERS’ PANELIST MR ALEXANDER LUNGU EMPLOYEES’ PANELIST