Mr. Kambuku, Employers’ panelist

Mr. B. Manda, Employees’ panelist

Mr. Lora, Official Interpreter

J U D G M E N T

In this case, Mr. Ludoviko P.K. Banda the applicant has filed the case against Dwangwa Cane Growers Company the respondent. In his applicants’ statement of claim, he alleges that the respondent unfairly terminated his employment. The applicant is therefore seeking the relief of compensation. The respondent in their statement of defence deny that the termination was unfair. They state that the applicants’ termination of employment was lawful in that he was accorded a fair hearing and that reasons were given for the termination.

The matter therefore came up for a full hearing on the 18^th of June, 2001 where we heard both sides. The applicant gave evidence for his side whilst as Mr. Wilfred Chakanika gave evidence for the respondent. It is therefore imperative at this point in time to go through the evidence inorder to appreciate the issues in this case.

The applicant was employed as a field officer by the respondent on the 1^st of May, 2000. His grade was that of middle management and was responsible to the Agricultural Manager. The applicant told the court that as field officer, he was dealing with field farmers who were growing sugar canes. He was also dealing with growers on the outreach programme. In relation to this case, the applicant gave a very lengthy explanation as to what had happened. It is his evidence that on the 15^th of March, 2001 the cane growers (farmers) staged a strike. From the totality of the applicants’ evidence he stated that whilst the farmers were on strike at the respondent’s head office at Dwangwa, he the applicant went ahead with his own daily cores. For example, the applicant as early as 6.00 am on the strike day went to the field to perform his usual duties. He came back to his field office and had breakfast thereafter. He then enquired from the switchboard operator at the respondents’ head office as regards the situation with the farmers and whether management wanted him. The applicant said that he was informed that the farmers were just dancing and cool and that he was not wanted by management.

The applicant said that he went ahead with his usual programmes together with a friend of his a Mr. Matsimbe. For example the two went up to the factory to pick electricians to rectify some faults at Matsimbe’s house although they were unsuccessful on this day. It is the applicant’s statement that late in the afternoon hours around past 4, he came close at the head office to leave his friend. That is when he discovered that the calm farmers had now become violent. The situation was extremely tense at that time. According to the applicant, he asked the administration manager. It is his evidences that when he went to the administration and personnel manager, he chatted with her briefly. Since it was now time to knock off, the applicant said that he went to the football ground where he found some of his friends already there. He went ahead to play football as was usually the case. The following day, the applicant said that he followed his usual programmes by reporting at the field office first and then proceeded to the field. He came back from the field and had his breakfast as usual. Then he made a second trip to the field in the company of Mr. Matsimbe. He came back for lunch and thereafter went back to the field with Matsimbe. It is the evidence of the applicant that during the field meetings, he met his boss the Agricultural Manager who attended one of his field meetings. In the afternoon hours, the applicant said that he went to the factory to check for the electricians again. This time he found the electrician. He then took him to the house of Matsimbe. After some time he brought the electrician back to the factory. As he was approaching the factory gate, the General Manager sent a radio message to him and said that he wanted to meet him at the office at 4.20 pm. Exactly at 4.20 pm, he went to the office of the General Manager where apart from the General Manager he also found the Finance, Administration and Agricultural Managers. The applicant said that he was very amazed to see this high powered team. The applicant said that at that office, the General Manager asked him if at all he knew about the strike which had just finished. The applicant said that he knew about it through rumours since people at the company had been talking about it. Then the finance Manager intervened and he wanted to know why he the applicant had not been part of the team that tried to difuse the strike. But the applicant said that he had phoned to find out if he was wanted but was informed that he was not. Later on the Finance Manager said that he the applicant could have spoken to the farmers so that they do not attack the General Manager which he did not. He also said that the applicant had been very passive during the strike and that he had acted irresponsibly. Having failed to force him to admit, they parted company.

The following day as he was having a rest after lunch, his wife later on told him that there came a man from the office with a letter. When he opened the letter he discovered that it was a letter of termination of appointment. He tendered the letter as App Ex No. 1. The reason for the termination was gross misconduct following the interview management had with the applicant on 16^th of March, 2001. We shall be referring to the contents of the letter at a later stage. Mr. Wilfred Dauka Chakanika is the Finance and Administration Manager. His evidence is that the applicant was employed to deal with farmers and tenants. The applicant was a link between the company and farmers. It is the evidence of this witness that on the 1^st of March, 2001 the farmers gave a notice to the respondents that they would stage a peaceful demonstration on the 15^th of March, 2001. It was a notice to strike the witness said. This notice was copied to the police, ministers, as well as the vice president. As per the notice, on the 15^th of March, 2001, the farmers marched accompanied by the officer in charge of police. At first, the farmers went to the field office but the applicant was not there and later on, the farmers marched to the head office. The witness said that the growers were very happy when they arrived at the head office.

They were happily singing and dancing. All this time, they were waiting for the Hon Minister of Information, Mr. Stambuli who was supposed to come and receive the letter of grievances. The farmers were there up to noon and even refused to release management to go for lunch. Late in the afternoon hours, the farmers became violent when they discovered that the Hon Minister was not showing up. The situation dramatically changed because the farmers now became very militant. They could not even allow anyone to come in. Thus those junior officers who had gone for their lunches could not be allowed to come in. The farmers were there up to midnight. The following day, management met to review the situation. Most of the middle managers at least came to find out about the progress. Those who could not make it at least phoned in order to show solidarity and sympathise with management. Amazingly the applicant did not even come or phone. Later on during the day, that was when the applicant was invited for an interview. The purpose of this interview was two fold. Firstly, to find out from the applicant if at all he had any knowledge about the cause of the strike. Secondly, to find out from the respondent as to why he had not tried to be together with management during the difficult time.

The applicant said that he did not know the cause of the strike and that he had phoned to fid out if he was needed but the operator, said no. He also explained that he was busy giving driving lessons to Mr. Matsimbe who was a new recruit. As regards his going to the football ground to play football, the applicant explained that it was a mere oversight. Mr. Chakanika tendered in court results of the interview. After the interview, the witness said that management found that Mr. Banda was guilty of gross misconduct hence the termination of employment.

After having looked at the evidence on record, there are thus several issues that have been settled as facts. It is settled as a fact that the respondent terminated the employment of the applicant due to what they termed as gross misconduct. As per the letter of termination this misconduct was determined from the interview the respondent had with the applicant. The reasons for misconduct are summarized as follows:-

(a) Irresponsible conduct by ignoring team spirit during the farmer’s strike.

(b) Failure to mediate the strike by the applicant who was directly responsible for the farmers showed irresponsible and unexemplary bevaviour.

                                (c) Negligent attitude by the applicant during the strike.

(c) Blatantly ignored the dangerous situation by going to play football.

(d) Failure to justify negative actions during and after the strike.

Before we look at the details of these issues, we have first to address our mind to what the law says in issues of termination of employment. The employment Act 2000 has put it in very clear terms in section 57 which is as follows:-

"The employment of an employee shall not be terminatedby 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 undertakings.

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".

It is important to note that the provision of section 57 of the Employment Act, 2000 are hand in grove with provisions of the convention 158 of the ILO on Termination of Employment (1982). Our national Legislation has therefore incorporated the International Labour standards of the ILO which is a move in the right direction.

A look at section 57 of the Employment Act reveals two important factors. This is to say that before termination of employment or before dismissal can be justified, there are two crucial issues which are to be observed. These are:

(a) That the employer had a valid reason (substantive Justice)

(b) That the employer followed a lawful and procedurally Administrative action (Administrative justice).

This court has on times without numbers made an Industrial equasion that substantive justice plus administrative justice equals fair termination (dismissal). We would also like to emphasize the point here that even section 43(1) of the Republic constitution has entrenched this point of administrative justice. Section 43(1) of the constitution says:

" Every person shall have the right to:-Lawful and procedurally fair administrative action, which is Justifiable in relation to reasons given where his or her right Freedoms legitimate expectations or interests are affected or threatened".

In the case before us, the contention has settled on these two issues. The applicant says that the respondent did not have valid reasons to terminate his employment. Secocndly, the applicant has said that the respondent did not follow lawful and procedurally fair administrative action before they terminated his employment. On the other hand, the respondent says that they had valid reasons to terminate the applicant’s contract. On the issue of procedure, the respondent says that they interviewed the applicant before they terminated the employment and that was fair hearing.

We shall first look at the element of valid reasons. It is clear that the cause of all this thing is the farmer’s action of the 15^th March, 2001. We firstly observed that the action by the farmers was being interchangeably referred to as a strike and demonstration. May be these two words are very difficult to distinguish. We were however unable to appreciate that the action of the farmers on that day was a strike. It is unfortunate that the letter the farmers wrote to the respondent giving notice of their action was not tendered by the respondent. But we do understand from the evidence of Mr. Chakanika that the farmers gave a 14 days notice that they wanted to peacefully demonstrate and present a petition of their grievances. That certainly can not be quickly called a strike. When we talk of a strike under the Labour Relations Act (section 45) or the ILS of the ILO, we mean withdrawing of labour by the employee after the employer and the employee have reached a stalement. We do not think that this was the case here. What the farmers were doing on this day was merely exercising their freedom of assembly which is well entrenched in section 38 of the Republic constitution. This section says :-

"Every person shall have the right to assemble and demonstrate with others peacefully and unarmed".

It would appear that even Mr. Chakanika had realized that the farmer’s action was a mere demonstration with a view to present a petition. We say so because in answering one of the questions from the applicant as to why contingency measures were not put in place in view of the impending strike Mr. Chakanika said that the farmers had given a 14 days notice for this peaceful demonstration and the respondent had no mandate to stop them as the farmers were exercising their rights to demonstrate.

The court further observed that management was given 14 days notice before they went on this peaceful demonstration. These farmers had written management and it was up to management to make strategical preparations. We were however surprised that inspite of the 14 days notice, management did not organize themselves. Management knew very well that the applicant was the one in daily contact with these farmers. But it did not occur to management that the applicant was important. If management valued the presence of the applicant, certainly, management could have summoned him for a preparatory meeting. Not only that, management could have sourced some information from the applicant way back before the demonstration. This did not happen at all. We therefore took it as a fact that both ,management and the applicant viewed the notice by the farmers as a very simple thing which did not even need them putting their heads together. The onus or duty however was on management to initiate the move. This they did not do.

Come the day of the demonstration,management did not even summon the applicant to the head office. In actual fact, the applicant was not even important on that day because it was the minister of Information one Hon Stambuli who was to receive the petition. The applicant thus went on his own way doing the usual duties. He thought that he was not needed at the head office. On that very day of the demonstration, he even met the Agricultural Manager during the field meetings. If the Agricultural Manager went to the field, we do not see anything wrong with the applicant having gone to the field on that very day. One does wonder why his boss the Agricultural Manager could not have invited him to the head office to assist in difusing the tension if indeed the applicant was needed in this issue. The court is again informed that late in the afternoon hours before knock off, the applicant met the personnel manager at the gates of the head office. The two spoke to each other and the applicant said that he tried to find out about the farmer’s situation. It is again amazing that this lady did not even sound an invitation to the applicant to join them at the office.

We further observed that throughout the day, the farmers were very co-operative until they got the wind that the minister of information was not coming. We are told that this was the time when the farmers became wild and started to be violent. We looked at this issue with a very keen interest. The thing that made the farmers wild was the absence of the minister. The farmers felt that they were cheated and felt frustrated. We do not feel that that the applicant could have done anything on that issue even if he was around. What explanation could he have offered if the General Manager who was in a better position had failed to do that. We even wondered as to what type of mediation the applicant could have made. We found that the respondent was trying to transfer their failure on the shoulders of the applicant. Here was a demonstration which the respondent had allowed. Here was a respondent who never bothered to involve the applicant. Here was a respondent who welcomed the farmers and promised them that the Hon Minister was coming to receive their petition. Here was a respondent who later on discovered that the Minister was not coming and failed to manage the situation because of the farmers frustration. Here is a respondent who now puts the blame on the field officer who they did not want to involve or consult before. We do not think that the reasons given in their letter of termination are valid. The respondent would like to use the applicant as an escape goat for their own shortcomings. We however also observed that the applicant indeed played a very low profile him being a field officer dealing with the farmers who came there. But we are of the view that all this happened due to the communication black out which the respondent had created. More over, this incident of the demonstration by the farmers was a quite an isolated event. The applicant can not be saddled with the blame just because the situation got out of hand. We do not think that his principal duties as a field officer were centred on events like the demonstration herein.

Thus his failure to mediate, his attitude during the difficult period, his ignoring the tense atmosphere and negative action can not be said to be acts of gross misconduct. All this underlines our conclusion that the reasons for terminating the applicants’ employment were not valid.

The next point we have looked at is in relation to the procedure that the respondent took before terminating the applicants’ employment. There is abundant and unchallenged evidence on record that the General Manager summoned the applicant to his office around 4:20 pm on the 16^th of March, 2001. The respondent has tendered the results of the meeting in the General Managers office. We would first like to observe that this report which is Res Ex 11 is signed by all the three senior officers from the respondent’s side but the applicant’s signature is not there yet he was amongst the people present. On the coram side, the applicant is there. But when it comes to signing for the report, his name and signature is not there. We would like to emphasize the point here that employers should not exercise double standards. The applicant was a very interested party in this report and if the respondent wanted the report to reflect inclusiveness of the applicant, he should have been afforded the opportunity to read and thereafter sign the report acknowledging that he agreed with the contents therein. Such would be said to be a fair approach. We have looked at the style and nature of the interview that ensured at the General Manager’s office. We had problems to appreciate that this interview in the General Manager’s office conformed with what is envisaged in section 57 (2) of the Employment Act, 2000. The requirements of section 57 (2) is that the employer should level allegations against the employee and that the employee should be provided with an opportunity to defend himself before termination of employment can be effected. What we observe from the style of the respondent herein was that they merely called the applicant for an ad hoc interview. They did not at all specifically level allegations against the applicant. For example it is not even clear from the report that they were leveling allegations of gross misconduct. We find that such an omission is very fatal when it comes to issues of fair administrative justice. The applicant in this case merely assumed that this was an interview for his employers to find out from him as to what he knew about the demonstration and why he had not been with management during the demonstration. That per se did not mean that the applicant was being leveled with allegations of gross misconduct.

We were therefore not surprised when the applicant told the court that he was not afforded an opportunity to defend himself. Indeed, he could not because the respondent had taken a very tricky and vague approach. Employers have to learn that inorder to afford an employee an opportunity to defend oneself, the charges or allegations made have to be very clear so that one knows that I am facing this and that allegation. A mere ad hoc interview like the one the respondent carried here does not amount to what is contempolated in section 57(2) of the Employment Act.

We therefore find that there was no fairness in the way the respondent conducted the procedure. We also observe that here was a case where the General Manager plus his two other senior officers were directly connected and had personal interests since the demonstrators besieged all of them. They may also have been acting with some emotions hence even the speed at which they terminated the applicant’s employment. The demonstration had just been called off on the early hours of the 16^th of March. That very day in the afternoon hours, they called for the interview of the applicant. The following day, a letter of termination was issued. This was a period of less than 12 hours a sign that the management team was in a very big hurry. Employers should learn to provide a cooling off period before they dash into administrative action because at times they can make irrational decisions. This case is a typical example.

We therefore find that the termination of the applicant’s employment was unfair.

The next issue to be looked at is the remedy available to the plaintiff. In his Applicant’s Statement of Claim, the applicant has prayed for the relief of compensation. This relief of compensation is available in the Employment Act, 2000 in particular, Section 63 (1) © and Section 63 (4) (5). The applicant in this case was employed on 1^st May, 2000. His services were unfairly terminated on the 17^th of March, 2001. He thus worked for the respondents for 10 months 17 days only. As per the provision by the Employment Act, he is in a category of employees who have worked for not more than five years and the compensation to be awarded pursuant to Section 63 (5) (a) is not less than a week’s pay for each year of service. We therefore award the plaintiff one month’s salary which is K18,504:00 as compensation for this unfair termination of the employment. The money to be paid immediately. The respondent have the right to appeal to the High Court if dissatisfied on matters of law.

DELIVERED this ---- day of ------- 2001 at Mzuzu.

Signed: -------------------------------------------------------------

M.C.C. Mkandawire

Signed: -------------------------------------------------------------

I. Kambuku

Signed: -------------------------------------------------------------

B. Manda