MATTER NO. 6 OF 2002
CORAM: HON. M.C.C. MKANDAWIRE, CHAIRMAN
Applicant – PresentRespondent – Present
Davie Mpakani – Official Interpreter
Matters in issue: Unfair Termination of Employment
The Applicant Miss Imelda Khan has brought this matter against the Respondents Farmers World. In her statement, the Applicant raises a trade dispute of unfair termination of employment.
The Respondents have denied the allegations made against them. They even argue that the Applicant was paid more than what she deserved as a person whose services were terminated.
SURVEY OF EVIDENCE
It is settled as a fact that the Applicant was employed by the Respondents as a Secretary in March 1999. It is again settled as a fact that the Applicant’s employment was terminated on the 31st of December 2001 through a letter headed termination of duty. This letter is tendered as an exhibit in this Court.
The Applicant has told this Court that she was not at all fairly treated before her employment was terminated. She recalls that she had an eye problem and on several occasions, she had to ask for an excuse from her office to go and meet an eye specialist. She said that actually a few days before her termination, she was to undergo an eye operation. All the documentation relating to visits to the eye specialist are tendered in Court as App Ex No 2 to 2(1).
The Applicant further explained that whenever she was to meet the eye specialist, she could take two days off and this was sanctioned by Management.
From the Respondent’s side, Mr. George Malinga the Personnel Manager gave evidence. He said that on 31st December 2001, his boss the Director of the Respondent’s Company invited him to the office and asked him about the sheet attendance for the Applicant plus other employees. A check on the sheet attendance for the Applicant revealed that there were a lot of absenteeism and also that she was not reporting for duties on Saturdays. The Director was not happy with this state of affairs. He thus directed that enough was enough and he ordered that the Applicant’s employment had to be terminated. The witness further told this Court that he informed the Director that the Applicant would be in a better position to explain some of these absenteeism and also her failure to report for duties on Saturdays. Thus the Director wrote the letter of termination after having advised him as to what the Respondent’s were to pay her. Thus she was paid severance pay and notice pay. That was the end of the matter, he stated.
All matters of termination of employment are now governed by the Employment Act, which has created statutory rights.
Section 57 (1)(2) provides:-
“(1) The employment of a an employee shall not be terminated by 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 undertaking.
(2)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 can not reasonably be expected to provide the opportunity.”
Thus from this statutory provision, it means that termination of employment will only be fair once there is substantive justice and procedural justice.
In this present case, the Respondents say that the Applicant was full of absenteeism. The Applicant however has medical reports showing that she was seeing a doctor and she used to get permission from Management. This has not been challenged. There are however some days whereby the Respondents said that she had no authority. They also talk of Saturdays where they say she was supposed to be at work. The unfortunate part is that these days of absenteeism were only discussed between the Director and the Personnel Manager Mr. Malinga. The law under Section 57 (2) is very clear. Before one’s employment can be terminated, the employer is supposed to give the employee a chance to be heard. This entails that the employer should charge the employee with a misconduct that has been committed. The employee should thereafter be given chance to answer to the charge. Thereafter, the employer has to make a decision.
The Court finds that the Respondents herein were in fragrant violation of the statutory rights of the Applicant. They did not hear her side. This is a very big violation of the principles of fair labour practice as enshrined in Section 31 of the Malawi Republic Constitution. This Court has stressed on divers occasions that employers should not terminate employment as if they are running a farmers’ club. They have to respect the statutory rights of the employee. Here is a good example of a case where this was not followed.
It is clear from the analysis that the termination of the Applicant’s employment was not fair. I therefore order that the Applicant be compensated pursuant to Section 63 (1)(c). The Applicant had worked for almost 3 years. I therefore order that she should be paid one months salary for each year of service. This money should be paid immediately through this Court. Thus this compensation worked out on her last pay on the day of termination would mean K12,485 multiplied by three years which comes up to K37,455.00.
As for the other claims made, I am unable to appreciate that she is entitled to them.
On a rather different note, the Applicant said a lot of things in her evidence, which I am afraid may not have been relevant to the case at hand. But some of these issues were referring to alleged human rights violation which she said are being perpetrated at the Respondents’ institution but the people have no voice at all to make them known to the authorities. For example, she told the Court almost with tears down that there is a lot of discrimination at this workplace. For example, she said that there is favouritism for the Asian workers than the locals. She also said that there is a lot of harassment whereby workers are being assaulted by superiors but these workers have nowhere to complain. She also mentioned of some women being sexually abused like being raped or indecently assaulted yet nothing happens to the perpetrators.
As I have said, this Court may not have the jurisdiction in some of these allegations. I would therefore do justice by forwarding this decision to the appropriated institutions such as the Office of the Ombudsman and the Human Rights Commission, which institutions using their inherent powers may cause public enquiries on such matters. I am sure that since the Applicant was saying that under oath, she was telling the truth; and would be the first person to explain to these bodies what is happening at this institution.
DELIVERED this 17th day of June, 2002 at Lilongwe.