-and-

Applicant – Present (unrepresented)

Respondent – Present (Represented by Counsel Limbe)

David Mpakani – Official Interpreter

J U D G M E N T

Matters in Issue: Unfair termination of employment.

The Applicant Mr. John Smith Kachule brought this matter against the Respondents on a trade dispute of unfair termination of employment. He says that his services were terminated without any reasons being given. He thus applies to the Court for an order that he should be given his gratuity. The Respondents have denied the allegations made. They replied that the Applicant’s services were terminated because the Applicant performed his duties negligently and inefficiently or in the alternative, that the Applicant was involved in fraudulent malpractice causing loss to the Corporation.

SURVEY OF EVIDENCE

The Applicant was employed by the Respondent on the 1^st of February 1966. He started as a depot cashier and rose through the ranks up to the position of Area Market Supervisor (AMS). By the time the employment was terminated, he had worked for 31 years. The Applicant told the Court that in February 1998, he got a letter from the Respondents that he had performed his duties very well. The Respondents even added two notches on his salary. He tendered the letter as App Ex 1. Four months after receiving this letter, he got another letter which was a letter of termination of his services. He tendered the letter as App Ex 2. By the time his services were terminated, he had 5 years to retire. It is his evidence that this letter of termination did not at all disclose any reasons for terminating his employment. The Applicant said that he was heavily shocked and he even developed hypertension. Eventually, he was hospitalized in Salima and developed a stroke. He even tendered the medical report as App Ex No.3.

It is the evidence of the Applicant that up to now, he does not know the wrong that he did. He was not even afforded an opportunity to be heard before his employment was terminated.

For the Respondents, Mr. Charles Andrew Ntchembe the Regional Human Resources Officer gave evidence. He said that the Applicant in the year 1996 was Area Market Supervisor at Mayaka market in Zomba. Whilst there, he gave K46,000 to the Market Officer at Matiya market. This money was given in July 1996. There was no proper transaction in relation to the issuance of this money. In December 1996, auditors from the Head Office were on a routine audit tour. They are the ones who discovered that the K46,000 given to the Market Office at Matiya market had no proper records. The two officers were called in the office to explain about the K46,000 in relation to the records. There was a discussion in the office at Mayaka but it would appear that the two were pushing the burden to each other. The auditors referred the matter to Management. As a result of this, the Respondents had lost trust in the Applicant hence the termination of his employment through Ex.2. The Respondent’s witness said that the Applicant had breached Condition 16 (a) (b) of the Conditions of Service and that the Respondents as per the Conditions of Service in place had no duty to inform him of the reasons for such termination.

In relation to this dispute, the Court shall look at Section 31 (1) of the Constitution which says:-

"Every person shall have the right to fair and safe labour practices and to fair remuneration."

The Court will also address its mind towards Section 43 of the Constitution which deals with administrative justice. This Section provides:-

"Every person shall have the right to:-

In trying to interpret what is fair labour practice, the Court will look for guidance in the International Labour Standards of the ILO which are applicable to Malawi having been ratified by Malawi. Such relevant Convention is Convention No. 158 on the Termination of Employment. This Convention was ratified by Malawi on the 22^nd of March 1965. ILO Conventions are very helpful to assist in interpreting domestic legislation such as the Constitution and they also act as quasi source of law especially where domestic law is silent. In the instant case, the termination of employment took place in 1998 before the Employment Act 2000 was effective. The previous Employment Act was rather very ambiguous when it came to dealing with such issues.

ANALYSIS

It is clear from the evidence on record that the Applicant’s employment was terminated without any reasons being given. This violated the spirit of Section 43 of the Constitution which deals with administrative justice. The Respondents are a public entity. They are a child of an Act of Parliament. Thus in any administrative decision that they make, they have to comply with the requirements of the Constitution. Section 43 of the Constitution has laid down the standard that is required to be followed once an administrative decision is to be made. The party affected is supposed to be subjected to lawful and fair administrative action. The party affected has to be furnished with reasons for any administrative action that is taken.

The Court also observed that the Respondents did not provide the Applicant with an opportunity to be heard. Section 43 has again built in rules of natural justice one of which is that a person should not be condemned unheard. The evidence from the Respondents is that auditors on routine tour found an anomaly. They of course called both the Applicant and the Market Officer. But I am afraid to say that the witness from the Respondents’ side was not even present when these auditors were interviewing the two officers. He could therefore not elaborate on that. The alleged report that these auditors had forwarded to Management was not even made available so that the Court should analyse it. The Court found that the interview which the auditors had at Mayaka office was not a hearing which is envisaged in Section 43 of the Constitution. That was just for purposes of establishing whether there was a shortage or not and who was the alleged culprit. Thereafter, Management was supposed to formally charge the Applicant with the alleged misconduct as put in Clause 16 (a) (b) of the Conditions of Service and give the Applicant an opportunity to defend himself against the allegation made. When we talk of a chance to be heard, it should really be an effective chance given to the person.

In the cases of Wistood W. Soko –vs- ADMARC and Nathan O. Banda –vs-ADMARC IRC Matters No. 110 and 111 of 2001 decided at Mzuzu Industrial Relations Court on the 20^th of July 2001, this Court looked at a similar question whether the Applicants were heard. The Court found that after anomalies were discovered by the Regional Grading Manager in Mzuzu, the Respondents ADMARC instituted a commission of enquiry. This commission of enquiry went all the way to Mzuzu. It invited the Applicants concerned. The Applicants were formally confronted with the allegations and they were asked to give their side of the story. They did that and the commission of enquiry made its recommendations to Management whereby the Applicants employment were terminated. The Court also observed that the Respondents had furnished the Applicants with reasons why their employment were terminated. Such was not the case in this instant case. It is the Court’s analysis therefore that the Respondents did not comply with both the Constitutional provisions (Section 31) which deals with fair labour practice and (Section 43) which deals with administrative justice. The Court’s analysis also openly diagnoses that Convention 158 was not complied with. This Convention specifically provides standards for fair labour practice when it comes to termination of employment. For the avoidance of doubt, the Convention provides:-

"Article 4 – The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

Article 7 – The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected, to provide this opportunity."

The Court finds that this termination was unfair both in substance and procedure. In substance because no reason was given. In procedure because the Applicant was condemned unheard.

There was thus a total violation of the Applicant’s rights. The Court has looked at the remedy that the Applicant was looking for. It is the remedy that he should be paid his gratuity. The Court has looked at Section 46 (2) (a) and (3) (4) of the Constitution which gives the Court wide powers where there has been a violation of the rights of a person. After having given this matter the best of its scrutiny, the Court finds that this matter deserves an order of reinstatement. But the Applicant said he had only 5 years to go before retirement. The matter herein arose in 1998. Close to 5 years have now elapsed and the Court would order that the Applicant’s services should be deemed to have been uninterrupted. He is now in a pathetic situation that he cannot even complete the few months remaining before retirement. All this poor health has been accelerated by the Respondents perpetration of injustice on him. The Applicant should thus be immediately retired and all his benefits should be paid to him calculated on the prevalent conditions in the Respondents conditions of service.

DELIVERED this ---------- day of May 2002 at Lilongwe Industrial Relations Court.

M.C.C. Mkandawire