Chibaya v Population Services International (IRC 12 of 2000) (12 of 2000) [2004] MWIRC 1 (11 February 2004);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 12 OF 2000


BETWEEN:


CHIBAYA…………….......………………………………………………. APPLICANT


-and-

POPULATION SERVICES INTERNATIONAL (MALAWI)…………….…..…………………………………………… RESPONDENT



CORAM: R. Zibelu Banda (Ms), Deputy Chairperson

Applicant- present

Respondent- Absent

Ngalauka, Court clerk

JUDGMENT

Dismissal- Justification for dismissal- Reason- Incapacity-Procedure-Right to be heard and defend oneself- Disciplinary action- Warning Procedure.


FACTS

The applicant was employed in June 1996 as Communications Assistant. He was dismissed in January 1998 for reasons relating to his capacity. The applicant challenged the dismissal on ground that he was capable of performing well and to that effect he produced evidence to show that he had the capacity to work diligently. The applicant further alleged that the respondent violated its, own code of disciplinary procedure as provided in the Terms and Conditions of Service of April 1996.


The respondent did not attend court despite the special notice that was sent to them. They did not even bother to communicate with the court that they would not be able to attend. The court record indicates that when the matter was last set down for hearing a Mr. Zulu had written the court seeking an adjournment and the matter was adjourned. This time round the respondent did not have the decency to communicate. Adjourning the matter would be prejudicial and unfair to the party that attends. In similar situations the High Court has held that the matter must proceed in the absence of the other party. The Honourable Justice Ndovi ordered in Fredrick Banda V. Dimon (Malawi) Ltd (Civil Cause No. 1394 of 1996(unreported)) that:


“trial should proceed, in the interest of justice, in the absence of the defendant. It has often been said in these courts that justice delayed is justice denied.”


The applicant gave evidence. He told court that his dismissal was not based on valid reason and the dismissal procedure was flawed. The letter of termination mentioned that the applicant’s performance was below standard. The letter referred the applicant to verbal and written warnings issued to the applicant. The court read one written warning, which outlined a number of shortcomings and asked the applicant to improve.


The applicant stated that two months after the warning, in June, he received an appraisal report which commended him highly, to the effect that his contract was renewed for another one year, his salary was raised and the letter expressed the hope that the applicant shall continue to work hard. The respondent further said:


“ Again PSI/Malawi greatly appreciates your hard work and looks forward to another successful year.”

Yet in January 1998 before one year after the appraisal, the applicant was dismissed not for misconduct but for incapacity. The court must determine taking all factors into consideration whether the dismissal was fair or unfair.


THE LAW

The applicable law in this matter is the Republican Constitution, which in section 31 provides that every person has the right to fair labour practices. Fair labour practices entail the right to know the reason for dismissal and the right to have an opportunity to explain ones side and defend oneself. See the Malawi Supreme Court of Appeal decisions in Dr Chawani V. Attorney General (MSCA Civil Appeal No.18 of 2000(unreported)) and Blantyre Netting Company V. Chidzulo (MSCA Civil Appeal No.17 of 1996(unreported.))


These decisions are authorities for the proposition that every person has the right to be informed of the reason for any adverse administrative decision. The reason must be given before dismissal so that the employee can state his case and defend himself. In cases of incapacity, good industrial practice demands that the accused employee must be given an opportunity to improve, provided with adequate assistance and if necessary he must be told that failure to improve shall lead to demotion or dismissal.


It is only in serious acts of incapacity that an employee can be dismissed without being given an opportunity to improve. In Alidair Ltd V Tylor [1976] IRLR 420 EAT, The Employment Appeal Tribunal held that:


“There are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure from that standard so serious, that one failure to perform in accordance with those standards is enough to justify dismissal. The passenger carrying airline pilot, the scientist operating the nuclear reactor, the chemist in charge of research into the possible effect of thalidomide, etc are all in the situation in which one failure to maintain the proper standard of professional skill can bring about a major disaster.”


In the instant case, the respondent’s business is operating a Contraceptive Social Marketing Program in Malawi. The applicant was in the Audio Visual Department. His duties as per the warning letter mostly involved preparing and conducting promotional activities, the promotion of contraceptive use through visual objects like T-Shirts, videos, brochures, live shows and other such activities. Apparently there were some shortcomings in these areas.


The court must assess whether these activities were such as would fall under the Alidair case (supra). Obviously these are not activities departure from which would lead to major disaster. However, in the instant case the matters complained of were not isolated incidents, they were many incidents that occurred over some period of time, precisely, nine months. Therefore the case of Alidair is distinguished from the present case. Further, in the instant case the applicant had received warnings before dismissal.


Reason

The court did not have the benefit of hearing the respondent’s version. However from the letter of warning, it is clear that the applicant was aware of his shortcomings through consultations with his supervisor and through the warning letter. By the time the applicant received his letter of dismissal he must have been aware of the problems that he had. Therefore the court finds that there was a prima facie reason for which the respondent could take disciplinary action against the applicant.


Procedure

There are various forms of disciplinary action that could be taken by an employer. Some of them are mentioned above. Before any action is taken, the employer must follow a fair procedure. To the court’s benefit the respondent maintains Conditions of Service, which outlines procedure in disciplinary matters. The court had no doubt that these were the Terms and Conditions of Service for the respondent from April 1996.

Clause 30.00 deals with warning procedure and it says:


30.01; “Disciplinary measure shall be taken if the employee shows lack of effort, inefficient or substandard work habits, insubordination, unbecoming behaviour that disrupts the work of other employees or that reflects poorly on the organisation”

30.02;“After two written warnings the supervisor may recommend disciplinary action including dismissal to the Resident Advisor”

These terms and conditions further provide that:

32.06 “ Before any disciplinary action is taken against an employee, he or she will be given an opportunity to be heard (before a Disciplinary Committee) either in person or asked to submit his written statement.”


The applicant asserted that he was never given two written warnings as required by the conditions of service. Further he contended that he was never afforded an opportunity to be heard before a Disciplinary Committee as per Clause 32.06 of the Conditions of Service.


It is strange but not unusual that the respondent maintains very colourful Conditions of Service that comply with good industrial practice and yet fails to comply with those conditions. The applicant had a right to be heard and to defend himself before he could be dismissed more so in cases of incapacity.


The England Appeal Court in Polkey V A E Dayton Services Ltd [1987]3 All ER 974 at 983-984, held; per Lord Bridge of Harwich:


“An employer having prima facie grounds to dismiss ……will in the great majority of cases not act reasonably in treating the reason as sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as ‘procedural’, which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of incapacity, an employer will normally not act reasonably unless he gives the employee fair warning to mend his ways and show that he can do the job”


Warning Procedure

Warnings are very important especially in big organizations. In A J Dunning & Sons (Shop Fitters) V Jacomb [1973]IRLR 206 NIRC, it was held that the question of whether or not an employee was given a warning is not a matter of procedure; it is a matter of substance. Written warnings will assist the employer where there is dispute as to the general performance or conduct of its employees. Warnings are also important because they put the warned employee on guard. He has the opportunity to know his shortcomings and seek timely advice or assistance. The warning must expressly state what the employer requires to change and the consequence of failure to change or conform to the requirements.


In the instant case the warning did not specify or state what sanction the respondent would take should the applicant fail to perform as required. It was not a second written warning to warrant a dismissal recommendation to the Resident Advisor.


FINDING

The evidence shows that the respondent violated the applicant’s Constitutional right to fair labor practice under section 31 and hence the court finds that the dismissal was unfair.


Assessment of Remedy

Where there is a finding that dismissal was unconstitutional, the court is mandated to make any orders that are necessary and appropriate to secure the enjoyment of the rights and freedoms granted under the Constitution. Section 46(3) of the Constitution provides:


“Where a court ….finds that rights and freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms…”


The Honourable Justice Mwaungulu, in Granger Nkhwazi V Commercial Bank of Malawi (Civil Cause No 233 of 1999 (unreported)) at 11 of the transcript, held that:


“The Constitutional right to fair labour practice, in my judgment, entitles citizens of this country, where the employer or employee violates the right, to a fair and adequate remedy.”


The applicant is seeking the remedy of reinstatement. This remedy is available by virtue of the Constitution as per the judgment of the Honourable Justice Mwaungulu in, S Kalinda V Limbe Leaf Tobacco Limited (Civil Cause No 542 of 1995 (unreported)) where at page 16 of the transcript he held that:


“Under section 46(3) of the Constitution, the court can make such orders as entail full enjoyment of the right which, in the context of employment, include, before the Employment Act (2000) reinstatement.”


The court shall set down a date to assess the remedy and determine its practicability. Both parties shall be required to attend the assessment.


Pronounced in open court this 11th day of February 2004 at LIMBE.



R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.