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THE CENTRAL EAST AFRICAN

Mr. Kambuku, Employer’s panelist

Mr. Nyirenda, Employee’s panelist

Miss Ali/Mrs. Jumbe, Counsel for the applicant

Mr. Mumba, Counsel for the respondent

Mr. Lora, Official Interpreter

J U D G M E N T

This case has been brought by Mr. Z.S. Mulewa and ohers who shall be referred to as the applicants. These other are: Mr. B.B. Washali, Mr. M.Y. Gangata, Mr. M.K. Thipa, Mr. H.W. Wanje, Mr. S.L. Mandiyesa, Mr. A.O. Malupe, Mr. F.n. Sagawa, Mr. Billy, Mr. Kapowali, Mr. A.N. Mlemba, Mr. G. Gowelo, Mr. Mpwensuwa, Mr. Mzeyi and Mr. Andrew Willard. The Respondent in this case is Central East African Railywas Limited (CEAR). The applicants in their Statement of Claim allege a trade dispute of withholding transport allowances by the respondent. They therefore pray that this court should order that they be paid transport allowance. The respondent on the other side filed in a response. In their response, they say that the applicants were not entitled to transport allowance under their contracts of employment or at all.

The pertinent issue therefore to be determined by this court is whether these applicants were entitled to transport allowances. This issue can better be resolved by just going through the evidence on record.

The applicants were the first to give evidence. Mulewa and Wanji did give their evidence which somehow is informal testimony. The gist of their testimony is that all the applicants were first employed by the then Malawi Railways. On the 1^st of December 1999, new management took over in the so called privatization process. This new management are now the respondent. The services of all the applicants with the then Malawi Railways were accordingly dealt with and all necessary payments were made. As with new management, all the applicants who happen to be what they call "Lengthmen" were offered new employment. These new offers were all on a probation period. As a sample of these contracts, the applicants tendered in Court a sample of the letters of offer. One of the crucial clause in this letter of offer is clause I which says:

"You will be employed on probation for a period of 3 months. At the end of 3 months probation period, the Company will either:

- Confirm in writing your employment, or

- Extend the probation period for a further period of up to 3 months or

- Dispense with services forthwith."

Thus by the 29^th of February 2000, the respondent dispensed with the services of all the applicants pursuant to the clause which has just been cited above. The respondent paid notice pay and overtime allowance.

It is the contention of the applicants that the respondent should also have paid them transport allowance. It is the evidence of the two applicant’s representatives that when new management took over they did not put in place Conditions of Service. Thus for the applicants, they assumed that the old Conditions of Service from Malawi Railways were still applicable. One of the Conditions of Service from Malawi Railways was that upon termination of services, Malawi Railways was supposed to provide transport to the employee. In relation to this case, the applicants said that Mr. Limbe, Mr. Banda and Mr. Lapani whose services had been terminated by the same new management were all provided with transport to their respective homes. The applicants therefore wondered as to why this did not apply to them. It was further their evidence that they did pressurize management for the transport allowance. A cheque was prepared but as it was about to be issued out, the General Manager ordered that it be cancelled. They therefore took up the matter with the General Secretary of the Railways Workers Union. This person came as a witness. He is Mr. Harrison Samson Machewere. He fundamentally confirmed that the applicant lodged a complaint with him that they had not been provided with repatriation transport. The witness old the court that he personally went to meet management at the respondent’s place. He was told that the applicants were not entitled to any transport. He was further told that Mr. Limbe and his friends were given transport by mistake. The witness further confirmed that since 1999 when the respondent took over, there are no Conditions of Service. The situation is extremely confusing. The Union, he said, has on divers occasions requested for Conditions of Service but to no avail. Up to now, there are no Conditions of Service, he stated.

The respondent invited Mr. Gerlad Ginazale who is the Human Resources Officer. This witness also worked for the now disbanded Malawi Railways. The witness told the court that all the applicants were employed on probation. But they did not make it to be confirmed on permanent terms. It is his evidence that whilst on probation of 3 months, there were supposed to be performance appraisals. The applicants however did not make it. The witness conceded that there are no Conditions of Service in the new management. He however said with the old Malawi Railways, there were Conditions of Service. On termination of Contract, Malawi Railways used to provide transport to the employee. The witness said that the respondent has not put down Conditions of Service up to now. All the employees have are letters of appointments which have skeleton Conditions which have not detail at all. It is settled as a fact in this case that all the applicants in this case were employed on 3 months probation. The letters of appointments are very clear on this. We have seriously considered these letters of appointments. We find that the procedure followed by the respondent before they terminated the employment of the applicants was rather crude. Once one is on probation, the employer has to assess the performance of the employee. There is thus supposed to be performance appraisal by the employer together with the employee. This procedure was also echoed by Mr. Ginazale. But this was not done with the applicants. It would appear that the respondent just unilaterally terminated the applicant’s services without proper justification. There is not even a scintilla of evidence that the applicants, whilst on probation, were unable to perform. This court finds such an action by an employer to be extremely unfair. It is also dangerous especially in situation like this where there is a change of management. The new Management may use probation as a means of just maliciously getting rid of some employees.

The next issue we have looked at is on Conditions of Service. It is very clear now from the totality of the evidence that there are no Conditions of Service at the respondent’s place of work. Even the respondent’s witness Mr. Ginazale who is in Senior Management openly confessed that there are no Conditions of Service at this work place. He said in cross-examination that the employer depends on its own discretion and commonsense when it comes to decision on certain issues. This witness further confirmed that there is a lot of confusion in the absence of clear-cut Conditions of Service. All that is there in place are letters of appointment with particulars of employment. This court was more concerned when it heard that up to the year 2001 when this case was being heard, these Conditions of Service were not yet in place.

We have found this type of situation to amount to what one would call unfair labour practice. Under Section 31 of the Constitution, every person shall have the right to fair and safe labour practices