A.M.C Banda v Central East African Railways (Matter No. 1 of 2002) (1 of 2002) [2002] MWIRC 34 (12 July 2002);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
LILONGWE REGISTRY
MATTER NO. 1 OF 2002

BETWEEN:


MR. A.M.C. BANDA……………………………………….APPLICANT

and

CENTRAL EAST AFRICAN RAILWAYS…………RESPONDENTS


CORAM:   HON. M.C.C. MKANDAWIRE, CHAIRMAN
                  Applicant – Present
Respondent – Present (Represented by Counsel Kalima)
Davie Mpakani – Official Interpreter

J U D G M E N T

Matters in Issue : Unfair termination of services and withholding transport money.

Introduction:

On the 2nd of January, 2002 the Applicant Angel M.C. Banda filed this case against the Respondents who are Central, East African Railways (C.E.A.R.). In his Statement of Claim, the Applicant raised trade disputes of unfair termination of employment and withholding of his transport money. He further prayed for the relief of transport from Lilongwe to Mzimba and compensation for unfair termination. The Respondents denied the allegation made by the Applicant saying that he was not at all entitled to transport allowance.

Survey of Evidence

Between 1984 and 1999, the Applicant was employed by the now defunct Malawi Railways. When Central East African Railways took over in 1999, the Applicant was re-employed by them but was put on probation. His position with the Respondents was that of Senior Constable in the operation’s department (transport department). Whilst on probation, the Applicant got a severe attack of T.B. As a result of this attack, he had to be on medication and could not work. After recovering from T.B., the Applicant went to report for duties on the 1st of March, 2000. To his surprise, he was handed over a letter that his services had been terminated. What further puzzled him was that the initials on his termination letter plus the employment number were not his. He tried to enquire from the Respondents about this anomaly but to no avail. As a result of this frustration, the Applicant requested the Respondents to repatriate him to his home in Mzimba. After observing that there was no co-operation from the Respondents, the Applicant decided to file this matter with this Court for redress.

The Respondents confirmed most of what the Applicant had told this Court. They however said that as per the appointment letter which is Applicant Ex No.2, they were entitled to what they did by dispensing with the services of the Applicant forthwith as he was still on probation. In relation to the claims the Applicant was demanding, Mr. Kamange who is the Human Resources Manager told the Court that the Applicant was not entitled to them at all. He further elaborated that after Malawi Railways was bought off by the Respondents, all the former employees with Malawi Railways were paid their dues for their previous services and the Applicant was one of them. The witness tendered in Court several documents including cheques as evidence that the Applicant was paid his dues. The witness further told the Court that there was nothing that the Applicant is owed and that some money was paid through officials who literally went to deliver the cash to him as he was bed ridden. Upon termination of service, the Respondents paid the Applicant his pension refund and all other necessary money that he was entitled to as a probationer.

Analysis

The Court has looked at the evidence on record. It is settled as a fact that the Applicant was a probationer when he met his fate. It is again settled as a fact that one of the conditions while on probation was that the Applicant’s employment could be dispensed with forthwith. It is again settled as a fact that the Respondents invoked that clause and dispensed with his services. From the documentary evidence that surfaced in this Court, the Applicant was paid all that was due to him. The Applicant accepted all this money. His argument that the initials were wrong ones does not really impress me in view of the surrounding evidence. If the initials on the termination letter were not his, one wonders as to why he received the money. The Respondents told this Court that the mix up in the initials and number were just as a result of a clerical error. Otherwise the Applicant was the one whose employment was terminated. The Court found that the mixture in initials does not really go to the roots of this case because fundamentally, the surname and other initials were for him.

The Court would also like to make one more observation in this case. The Applicant seem to he such a character who was not serious with the word “truth”. In the first place, he told the Court that Malawi Railways (1994) Limited did not pay him his terminal benefits and that he was advised that he would get his benefits from Central East African Railways. When the Respondents furnished this Court with proof that he was already paid this money, the Applicant changed his story just like the way a chameleon changes its colours when confronted with danger. The Applicant then told the Court that he did not get his pension refund. But the Respondents have again produced evidence of a cheque which was signed by him having received the refund. May be the Applicant forgot the fact that records of payment are maintained in offices. I thus had very big doubts when he later on told this Court that the K1,589:70 cash and K84:60 cash were not paid to him. It is extremely difficult to believe such a man who has told the Court two big lies. The Respondents’ story was more probable than that of the Applicant. After all, the Respondents had already paid him substantial amounts what could have made them fail to honour only K84:60.

In relation to is claim on transport, I am afraid to say that the conditions of appointment on probation do not warrant him to get transport to his home. Moreover, he is now at work in Blantyre. One wonders how he would be operating from Mzimba with his employment in Blantyre. I find that the Applicant’s claims have got no foundation at all and I do dismiss them in their entirely.

         DELIVERED this 12th day of July 2002 at Lilongwe.






M.C.C. Mkandawire
HON. CHAIRMAN