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MALAWI STOCK EXCHANGE LIMITED……...……RESPONDENT

Applicant, present (Unrepresented)

Mr. Msiska of Counsel for the respondent

Mr. Lora – Official Interpreter

R U L I N G

MATTERS IN ISSUE: Application for an Urgent Interim relief pursuant to Rule 25 (1) (M) (i) of the IRC (Procedure) Rules. An Employee who is demoted, is he/she entitled to an urgent interim relief to be reinstated to his/her original position pending hearing the substantive case.

The applicant Mrs. Veronica Chinkondenji has brought this matter pursuant to Rule 25 (1) (M) (i) of the Industrial Relations Court) (Procedure Rules). In her affidavit in support of this application which application is through a notice of motion, she is seeking an urgent interim relief to be reinstated to the position of Administrative Assistant/Secretary pending determination of substantive issues which she has itemized on her Applicant’s Statement of Claim. The application has been opposed by the Respondent and there is an affidavit in opposition.

When the matter came for hearing, the Court heard from her as to what has led her make this application. She thus supported her affidavit with oral evidence. In brief she told the Court that on the 2^nd of January 2002, she fell ill. The following day, she asked for permission to see her doctor. She was later on advised by the doctor that she had to undergo a D & C plus a minor operation. Before she went to the theatre, she sought permission from her Chief Executive Officer a Mr. Mpinganjira. After the operation, she spent a night at the hospital. The doctor thereafter recommended that she should be on sick leave. Thus she had to resume work on the 16^th of January 2002. She communicated all this to her boss although the news of sick leave was not received very well. On the 10^th of January 2002 as per the doctor’s instructions, she went back to the hospital for a check up. The doctor said that she was okay and that she could resume her work on the 16^th of January 2002. Thus on this day, she reported for work. She went and sat in the office where a new secretary was. This is the secretary who had been employed in the year 2000 before she went on sick leave. When the Chief Executive reported for duties, she personally went to report that she was back. He welcomed her and thereafter she went back to the office where this new secretary was. This is the very office she used to stay in before she went on sick leave.

As she was in the office the Operations Manager Mr. Kamanga came to see her. He informed her that he had instructions from the Chief Executive Mr. Mpinganjira to advise her that she should leave the office and be at the reception. This puzzled her and she sought an audience with the Chief Executive Officer. In the afternoon of that day, the Chief Executive Officer called her to his office. She did explain to him what Mr. Kamanga the Operations Manager had told her. To her amazement, the Chief Executive Officer informed her that what Mr. Kamanga had told her was actually wrong. He should have informed her that she would be at the reception permanently. He also advised her that actually the board had met and had advised him that she should be dismissed because of a rude letter which she had written to the Chief Executive Officer. The applicant said that she requested the Chief Executive Officer to put his instructions in writing which he declined and all he did was to shout at her calling her all sorts of names. Because she could not get his instructions in writing, she decided to write him seeking written instructions through a letter of 16^th January 2002. She reminded him on the 24^th of January 2002 but there has been no response. As such, she decided to find refuge in an office where the driver and messenger stay since the Chief Executive Officer had told her that she could choose and sit anywhere. Later on she was chased from that office and she went to sit in a sole computer office. Later on she did observe that things were getting worse by day hence her coming to file this case.

As I have already stated, the Respondent have filed an affidavit in opposition deponed by Mr. Mpinganjira the Chief Executive Officer. When Mr. Msiska of Counsel came to argue the case, he adopted the affidavit in full. In this affidavit, the Respondent says that this application for an urgent interim relief is totally unfounded. They argue that the Applicant has not been demoted. As per the contract between her and them, she is still Administrative Assistant/Secretary. She is still getting her salary as Administrative Assistant/Secretary. She is still entitled to her benefits and advantage as per the contract agreement. The Respondent further depone that due to her health problems, she has been out to seek medical attention including undergoing operations. They have attached all the medical receipts. The go on to state that recently, she underwent an operation and had to be on sick leave for 8 days. The office had no option but to employ a temporary secretary. They have attached a letter of appointment of this temporary secretary. Due to her recent health problems, the board met and decided that upon return from the 8 days sick leave, she should be given lighter work. That is why this was done by assigning her to the reception. All this they state was done on humanitarian grounds. No letter of official communication was written as this was supposed to be temporary.

The Applicant made a reply to this affidavit in opposition. She totally disagreed with the matters deponed therein. She first started by saying that the first sickness she had was in 2000. She indeed had a major operation due to a tumour in the womb. She however said that she recovered very well. Then in the year 2001, she had malaria, which she takes as very common sickness. The third problem was the one in January 2002 when she had a gyna problem, which is very common with all women. She had a minor operation and after 8 days, she recovered very well. The operation of 2000, which was a major one, is the one which necessitated the Respondent to employ a temporary secretary. She therefore wondered how her sickness of the year 2002 is connected to that of 2002. It was her reply that when she came back on the 16^th of January 2002, the Chief Executive Officer did not even find out how she was feeling and she was not afforded any opportunity to express her feelings about her health. The Respondent did not even request to see her medical report about how fit she was. It is her reply to this affidavit that reception work is more involving than the work she was doing as Administrative Assistant/Secretary. The work of a receptionist involves walking up and down, talking to lots of people, taking visitors into different offices, typing all the odd jobs, handling a busy switchboard, talking too much, handling incoming/outgoing mail, meeting different people etc. It needs energy. She further said that if the office was really acting on humanitarian grounds, there is no way the Chief Executive Officer could have been harassing her as he has done.

The two parties at one moment were involved in a very strong exchange of verbs in relation to whether the Applicant has been demoted or not. From the Applicant’s side, she takes this as a demotion because demotion to her means change of status. It is her belief that as Administrative Assistant/Secretary, she had a higher status. Although she is at the same salary, she is no longer doing the work of Administrative Assistant/Secretary. She is reduced to a mere receptionist, which is very humiliating to her. On the other hand, the Respondent’s Counsel says that she is not demoted at all. She is getting all the perks as Administrative Assistant/Secretary. The contract document has not been changed. Demotion, Counsel noted, means change of status in all aspects that is salary plus change of duties. I really found the two definitions or descriptions of demotion very interesting and rather comical. I think one of the two should be telling the truth. Certainly both of them cannot be right.

Before I further delve into the matter I do hereby reproduce Rule 25 (1) (m) (i) of the IRC (Procedure Rules) under which this notice of motion has been instituted. This rule says:-

"Without prejudice to the decision – making power of the Court under Section 67, the Court may on application or of its own Motion at any time – grant urgent interim relief pending a decision by the Court after hearing".

The Applicant herein seeks a relief of being reinstated to her original post of Administrative Assistant/Secretary. The Respondent avers that her position has not changed at all. The key word in dispute is whether she has been demoted at all. The noun ‘demotion’ is defined as follows in the Oxford English Dictionary at page 134 –

The Applicant was verbally ordered to be in the reception. I need not go into details as to what type of duties are performed at the reception desk because I am of the view that even Counsel for the Respondent should be aware of such duties. I do totally agree with the Applicant’s observations that even if one gets a salary and benefits of his or her original rank, but if the person is asked to perform duties of a lower rank, that is tantamount to reducing the status of that person and it amounts to demotion.

The Applicant indeed gave a very relevant analogy of demotion. She said that if a General Manager is told to leave his office but with all the perks intact plus a company car but is told to perform the duties of a cleaner, would that not be called demotion? I think it would be. The description of demotion from the Respondent’s perspective is more legalistic than being realistic. I find that the Applicant herein was and is really demoted.

I have read the affidavit in opposition as to why she was told to go to the reception office. I find that the whole process lacked fairness. The Applicant has indeed undergone two operations. The first one in the year 2000 which was described as a major operation and it necessitate the recruitment of a temporary secretary since the Applicant was to be on sick leave for over a month.

After her recovery, she again fell sick suffering from malaria in the year 2001. This attack of malaria could be described as normal as such sickness is the order of the day in Malawi. Then in January 2002, the Applicant underwent a D & C plus a minor operation. She was on sick leave for only 8 days. As she was on sick leave, the board met and directed that she should be given lighter work and they call this to be on humanitarian grounds. The move the board took was not prudent. They should first have assessed the situation of the Applicant and even seek a professional medical opinion. The fact that the Applicant underwent a D & C and a minor operation does not mean that she cannot perform the duties of Administrative Assistant/Secretary. After all, the Applicant herself said that she healed very well and was told by the doctor to go back to her work. If at all the Respondent had doubts about her fitness, it was up to them to request for a medical opinion. This they did not do. The conduct of the Respondent in as far as the steps they had taken amounted to unfair Labour Practice. For example, upon the Applicant reporting for duties on the 16^th of January 2002, the Chief Executive Officer did not even have a proper dialogue with her in order to know more about her recovery. All he did was to order through the Operations Manager that she should immediately go to the reception desk. When the Applicant requested for reasons in writing as to why she was being thrown into that office, she was provided with none up to now. The Applicant wrote the Chief Executive Officer on two separate occasions requesting for written instructions but to no avail. The reasons given in the Respondent’s affidavit, that they did not write her because this was a temporary measure, does not hold water here. When the Respondent had recruited a temporary secretary in 2000, they wrote the Applicant through a letter dated the 24^th of November 2000. I therefore found it strange as to why the Respondent were reluctant to write the Applicant on this temporary change as they had done before.

The IRC is a Court which stresses on issues of equity (fairness). The way the Respondent treated the Applicant in this matter by just orally dictating to her without any prior consultation that she should be reduced to a receptionist is not fair at all.

If this move was on humanitarian grounds, certainly it has not achieved that objective. The Applicant told the Court that the duties of a receptionist are more demanding and vigorous that she does need to be more energetic. This therefore means that the Applicant is being exposed to more perils. In all fairness, the Respondent went a bridge too far. I therefore find that this is a proper case whereby there should be an urgent interim relief granted. An applicant who applies for urgent interim relief must not unduly delay in bringing the application. The Applicant in this case brought her application in very good time before she continued being psychologically traumatized. I do order that the Respondent with immediate effect should allow the Applicant to go back to her original office and continue serving and providing the services of Administrative Assistant/Secretary. I also order that the Chief Executive Officer of this institution should refrain from psychologically harassing the Applicant. This Order she has obtained from this Court should not be used against her for further harassment.