MATTER NO. 8 OF 1999
128 TRADE UNION MEMBERS .................................. ........APPLICANTS
NSCM MILLING DIVISION....................................... ..RESPONDENT
Coram: M.C.C. Mkandawire - Hon. Chairman
Mr. Nindi - Employer's Panel
Mrs. Ching'oma - Employees' Panel
Miss D. Makhasu - For Applicants
Mr. Nkhoma of Counsel, for Respondent
This matter has been brought by 128 trade Union members who are the applicants. The matter is brought against NSCM Milling Division who are the respondents. In their statement of claim, the applicants who were all members of the Hotels, Food and Catering Workers Union (HFCWU) allege that after protesting dismissal of their trade Union leader, they were dismissed. They challenge the dismissal as being unfair and unlawful and they all pray to this Court that they be re-instated to their respective positions with the respondent. The applicants were I presented by one of the trade Union Members Miss Dorothy Makhasu whilst as the respondents were represented by Mr. Maurice Nkhoma of Counsel of Sacranie Gow and Company. Before this matter came up for full hearing, there was quite a lengthy pre-hearing' conference before the Registrar of the Industrial Relations Court (IRC). Several issues were unresolved and the matter was set down before us for final determination hence these proceedings before us.
The applicants called two witnesses to give their side of the story. These two witnesses are Mrs. Eunice Chitwanga who is PW No I and Mr. Kalimanjila who is PW No. 2. It is the evidence of Mrs. Chitwanga who was working for the respondents that on the 13th of January 1996, Miss Makhasu came to work and informed them that she had been dismissed by the respondents. We would like to put it on record lest we are engaged into a deliberate misunderstanding that this Dorothy Makhasu is the one who is complainant in matter number 4 of 1999 against the same respondents and this matter has also been determined by this Court. We shall not delve into the details of this matter suffice to say that the matter has been determined in her favour and the judgment in that matter is also ready. We would however like to put it on record that at some moments, one finds that the two matters are some how connected to each other.
It is the evidence of Mrs. Chitwanga that after having heard this sad news, Union members asked the Union Chairman to take up the matter with Management. Management and the Union failed to agree and the matter was then referred to the mother body the Malawi Congress of Trade Union (M.C.T.U.). Later on the Secretary General of MCTU Mr. Antonio wrote Management trying to find out what had happened. Seeing that very little was happening, on the 2nd of April 1996, the Chairman of the local Union went to see Management again. Thereafter, things had reached a stalemate and as such, they decided to go on strike which they did. All of them sat at the gate. Later on Management told them that if they did not enter the gate to resume:work, then they would be dismissed. It later on transpired that Management had secretly arranged to ferry those who were willing to resume work to be ferried in buses. Thus the other day as they were on strike, the witness said that some of their friends came to work in buses hired by the respondents. Later on the police came and arrested 23 people from the group of strikers. These 23 were later on released. Later on those on strike received letters that their jobs had finished. The witness tendered a letter of dismissal which is PEx 1. This witness underwent a lengthy cross-examination by Mr. Mtila who was the respondent's representative before Mr. Maurice Nkhoma of Counsel came on the scene. The witness maintained that trouble at the respondents place started on the 13th of January 1996 when news broke that Dorothy Makhasu was dismissed. The witness further maintained that after prolonged discussions with Management on the issue of Makhasu, Mr. Phwitiko the then Chairman of the branch Union resigned and Anusa the vicechairman assumed the roles of Chairman. When the strike was called, it was Anusa who was in the driving seat because Pwitiko had resigned. The witness maintained that the cause of the strike was Makhasu's dismissal. The witness further said that they were all amazed to be dismissed due to the exercise of their right to strike.
The evidence of PW No. 2 Mr. Kalimanjira was purely formal. This witness told the Court that he was Deputy Secretary General of MCTU. His evidence is that the strike at the respondents place of work happened because Management did not want to listen to the concerns of Union Members. It is his evidence that on the 29th of April 1996, Management at NSCM assured the Ministry of Labour and Union officials that they would re-instate all those Union Members who had been dismissed as a result of the strike. Several meetings were arranged in order to resolve the problem but the respondent did not attend any of these meetings and the matter could therefore not be resolved amicably. During cross-examination by Mr. Mtila the official representative for the respondents, the witness enlightened the Court that the trouble began as a result of the dismissal of Miss Dorothy Makhasu one of the Union leaders at branch level. Mr. Kalimanjira further said in cross-examination that Management at National Seed did not want to listen to the Union Members.
Let us put it on record that after having heard the two complainants' witnesses, the Court re-called PW No. I for further clarification as to what led the Union Members to go on strike. The witness reaffirmed that the retrenchment of Dorothy Makhasu was the cause. Mr. Mtila however wanted to find out from the witness as to whether she was not aware that the strikers had put stickers on the gate that their demand was for the removal from Management of Mr. Mtila and Kachelenga. But the witness answered in the negative.
The respondents called four witnesses in order to defend this case. These witnesses are Mr. Elliot Phwitiko (DW No. 1), Mr. Roderick Bamusi Maotcha (DW No. 2), Mr. Peter Ngwira (DW No. 3) and Mr. Arthur Stanley Mtila (DW No. 4). Mr. Elliot Phwitiko gave quite a lengthy testimony which we shall almost narrate verbatim. This witness was Sales Manager for the respondents at the material time. Mr. Elliot Phwitiko told this Court that apart from his job as Sales Manager, he was also Chairman of the Workers Union at the respondents place of work. His deputy was Mr. Anusa. He recalled that on the 2nd of April 1996 the Union executive headed by him had a meeting with the General Manager Mr. Baisley. The purpose of this meeting was to hear from Management about the demands of the Union Members concerning the plant operator Mr. Katchelenga who was dismissing industrial workers wantingly. The General Manager assured them that he had taken note of their concerns. Later on during lunch hour, his deputy Anusa addressed the members of staff who were anxiously waiting from them. Mr. Anusa and other executive members briefed the staff members about the outcome of the meeting with Management. The witness said that when he came back from lunch, he found that a strike had been declared and all the gates were locked. According to him, there was no notice given. According to the witness., management used to give the Union a lot of access on their concerns but at this time,, Management did not yield to their demands. He also recalls that apart from the name of Mr. Katchelenga, Union Members were also demanding the dismissal of Mr. Mtila. According to him, this was the demand that led to the strike. The strike started on 2nd of April and went on up to the 12th of April 1996 although in between, there was an Easter holiday. Later on management invited the police who came to open gates. Then Management told the workers to resume work. Some started but others did not. Those who did not resume work were unilaterally dismissed. Mr. Phwitiko told the Court that Management wrote a notice informing all the workers to resume work and the same notice specified the consequences that would follow on those who did not abide by it. The witness recalls that later on the Mother body of the Union i.e. HCTFU was involved and both Miss Makhasu and Mr. Kenni Williams Mhango came to intervene representing the Mother Union. Miss Makhasu came in as a representative of the Mother Union the HCFWU. Finally, Mr. Pwitiko told the Court that he was personally not in favour of this strike that is why he decided to resign. He was of the view that Management needed more time to redress the situation. He was also of the view that his fellow executive members did not follow the right channel.
This witness was heavily cross-examined by Miss Makhasu the official representative for the 128 Union Members. He did confess that his election to the office of chairman of the in-house union did not make him feel comfortable. He feared that this would lead to compromise of duty since he was also part of Management. He told the Court in crossexamination that he however represented workers on several meetings and did not remember Anusa his deputy having taken a leading role.
The witness told the Court that if he did not attend certain meetings like that of the 13th January 1996 it means he was not aware of it. The witness said that the cause of the strike was the demand workers were making on Mr. Katchelenga and Mtila. He said that the name of Dorothy Makhasu did not at all feature only that on the third day he saw that the placards had the demand of reinstating Dorothy Makhasu. But through out he was not aware of that demand and it did not even feature during their meetings. The witness however later on conceded that the issue of Dorothy Makhasu was there before but was later on eclipsed by the issue of Katchelenga and Mtila.
Mr. Roderick Bamusi Maotcha former Security Officer at the respondents' place of business also gave evidence as DW No. 2. According to the witness, the strike of the second of April was centred on Mr. Katchelenga and Mtila. The allegation was that these two people were cruel to fellow employees. Mr. Maotcha told the Court,that he attended the last meeting on 2nd April 1996 where the union and Management did not agree. He attended the meeting in his capacity as treasurer of the Union. According to him, the Union did not give notice of the strike to the Ministry of Labour.
The strike, he said, was sanctioned by Anusa the Deputy Chairman. Management distributed a notice that whoever did not return to work, he would lose his/her job. It is the evidence of Maotcha that he was also amazed that the strikers changed their demand. They were now calling for the re-instatement of Miss Dorothy Makhasu. Some people went back to work but for those who did not, they lost their jobs.
In cross-examination, the witness told the Court that he had been attending a lot of Union-Management meetings before the strike. But he said that he does not remember attending a meeting on the 13th of January 1996. The witness said that he did not attend any meeting where the name of Dorothy Makhasu had been mentioned.
Peter Ngwira was DW No. 3. He is the Human Resources Officer at the respondents office. With due respect, this witness did not observe most of what led to this strike. All he based on was what he was told whilst on duty in Bangula. By the time he came back from there on the 3rd of April 1996, the strike had already taken root. But he recalled that the General Manager wrote a standard notice which was distributed and for all those who did not return back to work, their services were terminated. The witness said that prior to the strike, Management did not have notice of it. In cross-examination, the witness said that the notice was distributed by one of the Managers Mr. John Buttershed.
The last witness (DW No. 4) is Mr. Mtila. He is now the General Manager. By the time the incident happened, he was Financial Controller. In brief, the witness told the Court that he was surprised to observe on the 2nd of April 1996 that a strike had been declared at his place of work. The witness said that he had never attended any meeting prior to the strike. He was however amazed to read on the board that his name was there as a condition for the strike to stop. All he knew was that there was a Union at this place of work but he never got involved in any discussions. The witness said that after some days, Management decided to give an ultimatum through a notice which was thrown to the strikers since the situation was tense. Some people read it whilst others tore it. At the end of the day, several employees reported but 128 did not. These were deemed dismissed and later on a standard letter was written informing each one of them about the position. The witness told the Court that he does not remember having heard the name of Dorothy Makhasu being the cause of the strike.
Before we look at the evidence on record, let us commend Counsel Maurice Nkhoma for the wonderful submissions which he made. We observed that Mr. Nyimba of Counsel for the plaintiffs or complainants did not submit anything although the Court had given him enough time to do so.
We observe that generally the material facts are not in dispute. It is thus settled as a fact that there was indeed a strike at NSCM from the 2nd day of April to the 12th of April 1996. There is however heavy dispute as to what led to this strike. In other words, what is the last straw that broke the camel's back? We notice that the plaintiffs' reasons as to cause of strike are completely different from those of the respondents. The plaintiffs' witnesses talk of Dorothy Makhasu's dismissal as the cause whilst the respondents say it is the demand by workers that Mr. Katchelenga and Mtila be removed from office. We have made several observations. We found that the plaintiffs were very consistent with their story. The respondents were however very evasive and bumpy. At first, Mr. Phwitiko (DW No. 1) posed as if nothing on Dorothy Makhasu had been said during some of the meetings. But later on he ended up conceding that the issue of Makhasu was there only that it was later on eclipsed by the issues of Katchelenga and Mtila. Our observation was that most of the respondents' witnesses did not want to associate themselves with anything to do with Dorothy Makhasu. We found that on several occasions,, their denials were palpably false and deliberately tailored to mislead this Honourable Court. The respondent's witnesses lacked a sense of truth. For example, Mr. Maotcha made several statements which were in total contrast with what Mir. Phwitiko and others had said. For example, he said that he was the one who distributed the notice letter yet other witnesses were talking of Mr. John Buttershed. Our observation was that Mr. Maotcha was extremely enthusiastic to say things in this case even if they were at the expense of the respondent's case. He was even answering questions before he was asked. All in all, we found that apart from the issue of Mr. Katchelenga and Mtila, the issue of Dorothy Makhasu was also there and it had been raised before during several other meetings like that on 13th January 1996. We are aware that none of the respondent's witnesses wanted to be associated with such meetings but we are satisfied that such meetings took place.
We would therefore move to the issue on the Law on strikes. We have looked at the submission made by Counsel Nkhoma on the Law in relation to strikes. Our first observation is that Counsel Nkhoma has only stated the Law as it stand in relation to the situation from I" December 1997 when the Labour Relations Act, Act No. 16 of 1996 came into force. The Law as stated by Counsel Nkhoma on dispute settlement procedure and strikes and lock-outs is indeed perfectly right.
We have however taken Judicial notice of the fact that this case occurred in April 1996 before the Labour Relations Act came into force. We have therefore also addressed our minds as to what the Law governing disputes and strikes was prior to the Labour Relations Act of 1996. We have looked at TRADE DISPUTE (Arbitration and Settlement) Act Cap 54:02 in particular Sections 10 and 12 of this Act which dealt with strikes.
We first observe that under this Act, reporting a matter to the Ministry of Labour was at the discretion of the party. It was not mandatory. We further observe that there appeared in this old law to be no limitation on the right to strike or lock-out, except in the case of essential services. Thus in non-essential services like the one at hand, there was no limitation. The notice in writing as referred to by Mr. Nkhoma before workers go on strike is a new phenomenon in the Labour Relation Act. Thus by the 2nd of April 1996, the strikers at NSCM could not have been bound by the Labour Relations Act which was not yet in force. We therefore failed to appreciate why the strike at NSCM was declared illegal. There has been evidence from the respondent's witnesses that an official from the Labour office had advised them that the strike was illegal. We wondered as to what reasons he had given in order to come to that sweeping conclusion.
We have also looked at the Constitution of the Hotels, Food and Catering Workers Union (HFCWU) and in particular article X which deals with strikes and lock-out. This article says:
"The Executive Board may not authorize nor may a Member take part in any strike until all procedures laid down in the voluntary Negotiations Machinery and or the Trade (Arbitration and Settlement) Act have been exhausted."
From the totality of the testimony on record, there had been several meetings before this strike took place. We are aware that the respondents were very evasive on these other meetings, but we found that the truth was that several meetings took place and by the time the strike was being declared on the 2nd of April 1996, a lot of channels had been exhausted by the workers.
Mr. Phwitiko sounded very positive when it came to praising the respondents on issues pertaining to problems between workers and Management. But we observed that Mr. Phwitiko was a double-faced person. Here is a man who was both in Management as Sales Manager as well as Chairman of the Union. He had personally already observed that this position would make him compromise his position. We were therefore not amazed that he has really ended up compromising his position because he gave us an impression that he came to tell this Court half truths. He did not want to sound as if there had been serious discussions before.
The position we take therefore is that the strike was legal. The next issue is whether the respondents were Justified to dismiss the 128 strikers. There has been a lot said on this. The respondents distributed notices to all the people on strike. The effect of those notices was that whoever did not report back by a set deadline would be deemed dismissed. We have been told about the way those notices were distributed. Taking into account that this was strike time, we find that the situation could indeed 'not have allowed the respondent may be to give the notices hand by hand. But we still observed that the respondents did not obey the rules of the game. There was a Union in place at their place of work. We are aware that Mr. Phwitiko had resigned voluntarily but Mr. Anusa and his executive were still in place. The respondent did not want to invite these people and have discussions with them as to what step they were going to take next so that these Union leaders could in turn have explained this very tricky situation to the strikers.
We have therefore addressed our minds to Section 31 of the Republic Constitution. This Section says:
"Every person shall have the right to fair and safe labour practices and to fair remuneration."
Our emphasis is on the words "fair labour practices". These words entail a lot. There should not only be fairness at work but also in the way employment is terminated. We have thus even gone further by referring to Section 43 of the Malawi Constitution. The Section provides:
"Every person shall have the right to
(a) lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened, and
(b) be furnished with reasons in writing for, administrative action where his or her rights, freedoms, legitimate expectations or interests if those interests are known."
Certainly the purpose of Section 43 is clearly to ensure transparency in decision making where the decision is likely to infringe the rights, freedoms, interest or legitimate expectations of others. As their Lordships rightly observed in the most recent case of DR. CHAWANI VS. THE ATTORNEY GENERAL MSCA Civil Appeal No. 18 of 2000 (Being High Court Civil Cause No. 620 of 1997) (unreported),
"The Section was also intended to enable persons affected by administrative actions to have adequate opportunity to defend themselves effectively. A person would be able to present a good and effective defence to an administrative action when he knows the reasons supporting the action."
In the instant case, the 128 Union Members were on a strike which we have found nothing wrong with it. The respondents were not happy with the strike and they gave a notice which had set deadlines. The effect of that notice was that whoever did not abide by it lost his/her job. We do not think that there was fair administrative action here. The strikers were there because of certain disagreements at the place of work. The right to strike is recognized world wide so is the right to lock out. In this present case, the 128 Union Members were unfairly treated. The respondents have not even explained how many people went back to work and of those, how many were Union Members. It may happen that very few returned to work and those might have comprised Management and a few Union Members. We find that the respondents operated on a premise that the strike was illegal, it was not. Certainly, there was no justification for the termination of the employment of these 128 Union workers. Even if there could have been justification, the action taken by the respondents could have been very harsh. We therefore find that the complainants are entitled to a relief from this Court since they were unfairly treated. They were not afforded any adequate opportunity to defend themselves effectively. The respondents assumed that they were on the wrong side of the Law and had also already made a decision to terminate their employment in the notices.
The complainants were seeking a relief of reinstatement. But we do not think that this is practically possible now taking into account the lapse of time from 1996 to now 200 1. We feel that the best remedy here is compensation. The Registrar of the Industrial Relations Court to assess the compensation which is reasonably available.
DELIVERED this 1st day of March, 2001 at Limbe.
M.C.C Mkandawire, Chairman
DISSENTING OPINION ON JUDGEMENT: MATTER
IRC 8 OF 1999
I am objecting to the judgement because we seem not to have taken Into account some very important/pertinent considerations. In coming up with the judgement the court in my view, only considered the issue of the right to strike without having looked at the question of responsibility on the part of the striking workers I feel when Management asked workers to return to work, those who did not go back should have deemed themselves dismissed. Whether the conditions of return were specified or not, it is clear that the Trade Union was not abolished at the Company; therefore negotiations over outstanding issues were bound to continue in the short or medium term.
Elsewhere in a case of this nature, employees refusing to return to work would be deemed to have frustrated the contract of employment. This system of Industrial Relations thus recognizes not only the right to go -on strike but also workers responsibilities to the organization which employs them.
Throughout the proceedings of this case there were doubts as to legality or illegality of the industrial action.
(i) Ministry of Labour declared the strike unofficial.
(ii) The administrative environment at the time required cases of strike action to be reported to Ministry of Labour. Such notice was not given. Now it has even become a legal requirement under the Labour Relations Act.
(iii) In the case of the United Kingdom on which Malawi's Industrial Relations system is based, an Industrial Tribunal would hold dismissal to be fair if the principal reason was, inter alia, one of the following:
(a) The employee broke or repudiated his or her contract of employment by continuing with strike action.
(b) The employee was taking part in an unofficial strike or some other form of industrial action.
(c) Some other substantial reason of a kind which would justify the dismissal of an employee holding the position which. the employee held.
I strongly believe that the Industrial Relations Court in interpreting rights granted under the Constitution or any other Labour Legislation, the Court should not lose sight of corresponding responsibility of employees to the organisation which employs them. The court would have an image problem.
P. C. Nindi (Panelist, Employers Panel)
01. 03. 2001