IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 123 OF 2004
CHAZIKA. ... . APPLICANT
BATA SHOE COMPANY .. ... ..RESPONDENT
CORAM: R. Zibelu Banda (Ms): Chairperson
Mvutho; Human Resources Officer for the respondent
Chinkudzu; Official Interpreter
Dismissal-Justification for Dismissal- Reason-Burden of proof- Employer to show reason-Operational Requirements- Retrenchment- Procedure for Retrenchment-Consultation-Employee and Ministry of Labour to be informed-In advance of-Criteria- Duration-Employee numbers to be affected.
The applicant was employed on 23 August 1993. His services were terminated by letter of 19 December 2003. The reason for termination was retrenchment. The applicant challenged the termination alleging that the reason provided was a mere sham to carry out unfair dismissal for trade union activities in which the applicant was active. The respondent on the other hand contended that the termination was in line with a restructuring process that was being carried out at the time. They averred that the dismissal was not unfair.
The Court was called upon to determine whether the dismissal was unfair. A dismissal is unfair if there was no valid reason for the dismissal and where in the case of retrenchment the applicant or his representative and the relevant Ministry were not consulted or advised of the retrenchment process.
Section 31 of the Constitution guarantees every person the right to fair labour practices which entail the right to know the reason for dismissal as provided in section 43 of the Constitution. The burden of proving the reason for dismissal is on the employer, see section 61 of the Act and Earl V Slater & Wheeler (Airlyne) Ltd  1WLR 51at 55, where it was held that:
It is for the employer to show what was the principal or only reason for dismissal . and that it was a potentially valid reason . If the employer fails to discharge this burden, the tribunal must find that the dismissal was unfair.
The Employment Act provides in section 57 that an employee shall not have his services terminated unless there is valid reason for that termination connected with his capacity or conduct or based on operational requirements of the undertaking. The provision makes it mandatory that there must be a valid reason for dismissal.
In section 43 of the Constitution, it is provided that every person shall be furnished with reasons for any administrative action that adversely affects him. The reasons must be furnished before that action is taken so that the affected person can defend himself, see Chawani V Attorney General [MSCA Civil Appeal No 18 of 2000 (unreported)].
In the instant case the court heard that the applicant received a letter informing him that his services were terminated on grounds of retrenchment. The applicant was not at any time informed that the company would be going through retrenchment. There were no records that the company was going through retrenchment process. The applicant was never at any time consulted that he had been selected for retrenchment and why.
Retrenchment is where an employer terminates contract of an employment because the employer is carrying out some restructuring in order to cut costs or boost the entities economic performance. It is expected that in a retrenchment process a number of staff members will be affected and that many lose their jobs. These situation is common not only in Malawi but throughout the industrialized world. In Malawi liberalization of the economy, privatization of government bodies and the technological developments have contributed to massive retrenchments.
The problem is that some employers have used the lacuna in national law on what constitutes fair termination on basis of retrenchment, to carry out unfair dismissal. Section 31 of the Constitution, provides for fair labour practices. What constitutes fair labour practices can be obtained from Employment Act, Labour Relations Act, the Constitution, ILO Conventions, case law, texts and good industrial practice.
The ILO Convention Concerning Termination of Employment at the Initiative of the Employer ratified by Malawi in 1986 is a good source of the law on redundancy. In Ngwenya and another V Automotive Products Ltd [IRC Matter Number 180 of 2000 (unreported) at 7,] the Chairman of the court held that:
..section 211(1) of the Constitution provides .(that), any International agreement ratified by an Act of Parliament shall form part of the Law of the Republic if so provided for in the Act of Parliament ratifying the agreement. This is a Constitutional provision which mandates the courts to have recourse to International Labour Standards of the ILO ratified by Malawi.
The ILO Conventions can be used to interpret national law where there is a lacuna in national law. The chairman in the Ngwenya case supra, at 9, explained that:
labour courts use International Labour Standards to assist them in understanding and interpreting national legislation and to decide on matters of equity and fairness. In these cases ILO Standards do not so much serve as legal basis on which questions (of law) can be decided, but serve as a tool to clarify issues on which national law is unclear or ambiguous.
Article 13 of Convention No. 158 Concerning Termination of Employment at the Initiative of the Employer provides that:
When the employer contemplates termination for reasons of an economic, technological, structural or similar nature, the employer shall:
provide the workers representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;
give, in accordance with national law and practice, the workers representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.
Article 14 of the same convention provides that competent authority should be notified of the contemplated terminations in the same manner as in Article 13. Competent authority in the case of Malawi could be the Ministry of Labour and Vocational Training.
Indeed the practice so far in Malawi is that when companies contemplate restructuring that would involve termination of employment, they notify the Ministry of Labour and Vocational Training. (See the Policy Statement on Retrenchment and Recruitment Procedures and Practices of March, 2000.) In this statement companies and employers are advised to inform the Ministry of Labour and Vocational Training well in advance of any intended or planed retrenchments, redundancies, mass dismissals of employees en-masse. The information that is required to accompany the notification includes:
The rationale and justification for such intentions; the time frame within which the exercise would take place; and a systematic modus operandi of how the exercise will be carried out;
In the instant case none of these were complied with by the respondent. No information was given on the nature of restructuring that was taking place or indeed who else was on the list of termination. Although the respondent averred that other employees were dismissed at various stages, this could not vindicate them as they did not follow the practice and procedure on retrenchments, which means that the termination of the other employees was also invalid.
The court finds therefore that there was no valid reason for dismissal. The respondent failed to discharge the burden of showing any valid reason for dismissal. Even the procedure leading to termination on ground of retrenchment was flawed.
Where an employer has a valid reason for dismissal, the general rule is that, the reason must be communicated to the employee so that he can say something in relation to that reason. In retrenchment situations the process is referred to as consultation.
It was thus put in the English Court of Appeal in Polkey V A E Dayton Services Ltd 3 All ER 974 at 983-984; 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.
See, also Bristol Channel Ship Repairers V O Keefe 2 All ER 183.
The requirement to consult is crucial in all retrenchment cases because the consultation process brings out information pertaining to why the applicant and not someone else should be retrenched; who made the decision; what information did he or they base their decision on; what period would be required to carry out the retrenchment and whether there is any way of averting dismissal. It was held in Freud V Bentall Ltd  IRLR 443 EAT that:
Consultation is one of the foundation stones of modern industrial relations practice. In the particular sphere of redundancy, good industrial relations practice in the ordinary case requires consultation with the redundant employee so that the employer may find out whether the needs of the business can be met in some other way than by dismissal and, if not, what other steps the employer can take to ameliorate the blow to the employee.
In the instant case the respondent did not show the Court that they consulted the applicant. They never informed the Ministry of Labour on the alleged retrenchment. There was no modus operandi of the said retrenchment, nor did the respondent show the court how this process was carried out.
The court finds that the applicants termination was unfair because the respondent did not comply with the law in effecting the termination. The termination was both substantively and procedurally unfair because it contravened section 57(1) and (2) of the Employment Act.
Assessment of Remedies
The applicant is entitled to a remedy under section 63 of the Employment Act. The matter shall be set down on a date to be fixed for assessment of an appropriate remedy.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment in accordance with section 65 (2) of the Labour Relations Act.
Pronounced in Open Court this 25th day of April 2006 at BLANTYRE.
Rachel Zibelu Banda