IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 420 OF 2005
MANYENGO AND NGWIRA . ....APPLICANTS
AGRIMOL (MW) LTD ... RESPONDENT
CORAM: R. Zibelu Banda (Ms); Chairperson
Mphaka representing respondent
Chinkudzu; Official Interpreter
Wages-Withheld wages-Suspension-Unpaid suspension-Ten months-Justification-Waiting for criminal investigations-Police investigations-Invalid reason-Unfair labour practice.
The applicants were suspended from their duties after they were implicated in some theft allegations. They were suspended on 18 August 2005 without pay or any benefit. They have been waiting to hear their fate since then. Meanwhile as they are still contractually employed they can not seek alternative employment to earn a living.
Suspension is provided for in the Employment Act, section 56, as a form of disciplinary action against an employee after a hearing. Suspension is also justified in order to pave way for investigations conducted at the work place. In this case the suspension was in order to pave way for police investigations relating to criminal proceedings. This court has held in several cases that employment disciplinary procedures are different from criminal proceedings. A finding in a criminal case has no bearing on an employment relationship. For example an employee can be acquitted in a criminal case but may still lose his job on the same facts, see generally, Kamasa V Bata Shoe Company Ltd [Matter Number IRC 235/2003 (unreported)].
In this case the suspension was not a form of disciplinary sanction after a hearing. It was metted out in order for a third party to carry out some investigations not for employment purposes but for criminal proceedings. The employer has no control over the investigations meant for a criminal purpose. The police can take their time and they can decide at any time to abandon the investigations. It is therefore unfair for an employer to abandon its duties and hope that a third party over whom it has no control will do the job. It is an unfair labour practice to put employees on an indefinite suspension, see generally, Mpinganjira V Malawi Development Corporation ( decision of Mwaungulu J.)
It is this courts finding that the suspension is unfair. It has been going on for unreasonably too long. The applicants have no means of earning a living. The applicants have been subjected to unfair hardship.
It is ordered that the applicants be paid their wages and all other benefits that have been withheld during the suspension period. A breakdown of the payment can be obtained from the court file. The total payments are as follows and must be paid within seven days of this day:
Manyengo: K65 050-00
Ngwira: K39 031-75
It is further ordered that the respondent must take administrative action forthwith to either release the applicants fairly following the procedures set down in the Employment Act or to withdraw their suspension immediately. Any continued suspension after this order will amount to contempt of court.
Right of appeal
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 this 26th day of May 2006 at BLANTYRE.
Rachel Zibelu Banda