Thukuwa v Blue Bird Motel Ltd - Matter No. 28 of 1999 (28 of 1999) [2001] MWIRC 9 (01 September 2001);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

MATTER NUMBER 28 OF 1999

BETWEEN:

CHARLES MPONDA THUKUWA……...…….………….APPLICANT

-and-

BLUE BIRD MOTEL LIMITED……………………..RESPONDENT

CORAM: M.C.C. MKANDAWIRE, HON. CHAIRMAN

Mr. Kamara, Employer’s panelist

Mr. Manda, Employee’s panelist

Mr. Lora - Official Interpreter

J U D G M E N T

Hon. M.C.C. Mkandawire:

This case was filed by Charles Mponda Thukuwa, the applicant, against Blue Bird Motel Limited the respondent. The alleged trade dispute is that of unlawful dismissal. In his Statement of Claim, the applicant says that on the 16th of July 1999 he asked for permission from his boss Mrs. Khondowe to go and attend a funeral at Thekerani. He also got an advance of K400-00 for transport. He came back to report for duties on the 20th of July 1999. To his surprise, he was fired without any reasons being given. The respondent the following day paid him K240-00 as wages for that month which he declined to get because the money was less than his monthly salary which at that time was K1,700-00 including house allowance and service charge. He also said that he had not received service charge for the months of April, May and July. The applicant further stated that he lodged a complaint before the Labour Office (South). In the company of the Labour Office, they went to the respondent where they met the Director Mrs. Khondowe. But he was told that she did not care about him. Later on he referred the matter to Malawi CARER a Non-Governmental Organization dealing with issues of Human Rights. He was advised to go back to the Labour Office. He went back to the Labour Office who finally advised him to take the matter to the Industrial Relations Court. The respondent on the 10th of December 1999 filed in a defence. In the paragraphs of their Statement of responses, the respondent stated as follows:-

(i) That the alleged K1,700-00 salary per month is wrong. Actually he was getting K1,200-00 per month.
(ii) In July, the applicant only worked for 16 days and that his salary for July was calculated at K46-15 per day and for 16 days it came up to K738-40, less outstanding debt of K100-00 plus K400-00 advance. The balance was K238-00.
(iii) The applicant left informally. He was not on sick leave neither annual leave. He was required to give a month notice. Eager to pay 16 days and service charge.
(iv) The applicant does not appear to be familiar with his own presentations. Who employed him? Is it Mrs. Khondowe? Blue Bird Motel? Blue Bird Motel Limited?

Such was the nature of the response from the respondent.

We would first like to state the dramatic events, which occurred before we finally heard the case on the 30th of August 2001. When this case was called for hearing at 10:00 a.m., the Court was informed by the official interpreter that the respondent did not turn up at 9.00 a.m. On their own initiative, the Court staff phoned the respondent’s office, which are less than a kilometer from the Courthouse that the matter was ready and that everybody was waiting for them. The Acting Manager at the respondent’s place who is Mr. Arthur D. Kamphuzi quickly came to the Court. He informed this Court that the Director Mrs. Khondowe was not around. She was however within the City. He therefore said that since he was not personally served with the notice of hearing, he had no mandate to represent the respondent but the Director herself. The Court therefore adjourned the case to 2.00 p.m. so that the Manager should inform the Director that the matter was ready for hearing although she had personally been served with the notice. When the Court reconvened at 2.00 p.m., more drama unfolded. The Manager came again minus Mrs. Khondowe. The Manager told us that the Director Mrs. Khondowe was at the office. He assured the Court that she was indeed aware of the Court proceedings today but that she had told him to bring to Court a payroll indicating the salary that the applicant was getting at the time he left employment. But the very Manager told us that he wanted to be frank now. He confessed that even in morning hours, this Director was at the office and that what he had informed the Court of in the morning was not true. We really found the Manager to have been in such a situation whereby he was being used by her boss to mislead the Court. We however sympathized with the situation in which the Manager was hence us not recommending that he had given the Court false information so that he should be charged with perjury. We however discovered that Mrs. Khondowe had no regard to the plight of the applicant. As a Court, we viewed her conduct to mean that she was not ready, able and willing to defend the case in which the respondent which is under her directorship is sued. We therefore ordered to proceed hearing the case in her absence. She had the notice of hearing. We even adjourned the case at 10.00 a.m. in order to make sure that she comes which she did not. No reasons were given for such a failure. She did not even send a representative. We did not take the Manager as her representative because he was so worried to speak on her behalf and he totally declined to testify. This was quite interesting. May be this case depicts such situations where employees are really operating under the terror of Directors.

We thus heard only from the applicant whose evidence was not at all controverted. We also looked at the payroll that was brought by the Manager in order to be assisted as to the true salary of the applicant which salary was also in dispute.

The applicant told the Court that he was employed as a Chef by the respondent on 31st of January 1997. By the time he lost his job, he had worked for 11/2 years. On the 16th of July 1999, he lost his brother in Thekerani. He then asked for permission from the Director Mrs. Khondowe to go and attend the funeral. Permission was granted and he was even granted an advance of K400-00. On the 20th of July 1999, he went to report for duties but just to be informed by the respondent’s Director the same Mrs. Khondowe that he had been fired. No reasons were given for the dismissal. He was paid K240-00 as salary for that month after deductions. He declined to receive the money. He thus sued the respondent to pay him his salary of July; notice pay and also service charge for three months which was not paid.

The Court has looked at the unchallenged evidence from the applicant. We observed that the applicant was a truthful person and worth to believe. Even in the absence of Mrs. Khondowe the Director, the applicant did not even exaggerate his evidence. He was well focused and to the point. What he said in evidence was exactly what he had put in writing in his Statement of Claim.

To put it in a nutshell, therefore, the applicant was fired without any reasons being given to him. Apart from that, the applicant was fired orally without any chance being given to him to defend himself. Of course one would say that the respondent’s director had no reasons to put forward for the action which she took. The applicant had requested for permission to attend a funeral of a brother. The permission was granted. He was even provided with a loan of K400-00. This loan has also been deducted from his wages of July a sign that indeed he was telling the truth. What wrong therefore did he do to warrant such treatment? We were all left wondering. Moreover, the action taken by Mrs. Khondowe was very cruel. Here was a man who had just come from mourning his late brother. Instead of receiving condolences from his boss, all he was slapped with was a dismissal. This was thus adding an insult to an injury. Employers should learn to have a human face.

We found that the respondent herein were in fragrant violation of the Constitutional rights of the applicant which deals with the right to administrative justice. Section 43 of the Constitution 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."

We have also looked at the International Convention of the ILO on termination of contract. This is Convention No. 158 which was ratified by Malawi in 1985. This Convention pursuant to Section 211 (2) (3) of the Republic Constitution is applicable in Malawi. We have resulted to the use of this Convention because the New Employment Act of 2000 which became operational in September 2000 cannot be applied to this case since the case happened in 1999. As per the provisions of the old Employment Act which was applicable in 1999, we find that that legislation had a lot of shortfalls in as far as terminations of contracts was concerned. We have therefore resulted to the use of the ILO Convention No. 158 for purposes of fairness and equity. We find therefore that even Article 4 of this Convention requires that a worker should be provided with valid reasons before his/her employment is terminated which was not the case here. We again found that Article 7 requires that a worker should be provided an opportunity to be heard before termination is effected. Our unanimous decision therefore is that the dismissal herein was both unlawful and unfair both in substance and procedure. We therefore order that the applicant be paid all his salary for July 1999. It was K1,200-00 per month; of course minus the K100-00 debt and advance of K400-00 for transport. We further order that the applicant be paid his service charge for the three months. This service charge depended on the business of the month. We caused an enquiry on this even from the Manager. We were informed that the average service charge per month in 1999 was K75-00. We order that the applicant be paid K100-00 per month as service charge. The total is therefore K300-00. We have found that the respondent acted in total disregard to the Constitutional rights of the applicant in relation to fairness. They did not afford him a chance to be heard. Such violation has got no mathematical exactitude. But it is such a violation that can be enforced pursuant to Section 46 of the Constitution. Amongst the many remedies available to the Court under that Section is the remedy of compensation. We therefore order that the applicant be compensated for that violation. He had worked for 11/2 years for the respondent. We therefore order that he be compensated with such amount of money which would amount to one month salary. Thus in total, the applicant to be paid K2,200-00. The respondent can appeal within 30 days if aggrieved but only in relation to matters of law and jurisdiction.

DELIVERED this -------- day of September 2001 at Limbe Industrial Relations Court.

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

M.C.C. Mkandawire

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

Mr. Kamara

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

Mr. Manda