Cement and Others v Shoprite Trading (MW) Ltd ((IRC 49 of 2005 ) ) [2006] MWIRC 61 (30 May 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

 


PRINCIPAL REGISTRY

 


MATTER NO. IRC 49 OF 2005

 


BETWEEN

 


CEMENT AND OTHERS ……………....................................................APPLICANTS

 

-and-

 

SHOPRITE TRADING (MW) LTD.…...…...…………………………RESPONDENT

 

 

CORAM: R. Zibelu Banda (Ms); Chairperson
Makhambera; of Counsel for Respondent
Gondwe; Union Representative for the applicants
Applicants; Cement, Harazie, Phambana
 
Ngalauka; Official Interpreter
Applicants; Cement, Harazie, Phambana
 

JUDGMENT

      1. Dismissal- Justification-Reason-Misconduct-Acting without authority-Procedure-Right to be heard-Employer under legal obligation to afford employee opportunity to be heard and defend himself-Hearing must be fair

      2. Legal Representation-Leave to legal representation-Factorss-Section 73 Labour Relations Act

      3. Interference-With decision of employer-Where allegations of unfairness are leveled against employer

 

Introduction

Upon hearing the applicant and the respondent; the court finds that the applicants were alleged to have acted without authority regarding some expired stork. The applicants were invited to a hearing to answer various charges stemming from the same issue of expired stork. The applicants challenged the hearing which led to the termination of their employment.

 


Issue

The issue is whether the applicants were given a right to be heard and defend themselves against the allegations and whether the hearing was fair.

 


Legal Representation

Before tackling the main issue in this matter, the applicants raised a very pertinent matter regarding legal representation. The applicants challenged that the respondents were legally represented in these proceedings while they themselves were unrepresented. The court ruled that the applicants were at liberty to seek a lawyer of their choice. The matter was adjourned to allow the applicants secure a lawyer to represent them in the proceedings.

The issue in this preliminary matter was not really whether the applicants should seek a lawyer but whether the court was justified in granting leave to the respondent to have legal representation when the other party was neither a lawyer nor legally represented.

 


Section 73 of the Labour Relations Act provides that any person may apply for leave to be legally represented in the Industrial Relations Court proceedings. The court is mandated to grant leave upon being convinced that the requirements under that section are satisfied namely:

 


Section 73(2) providing that:

Leave (to represent a party) shall be granted under subsection (1) (C) where the other party is, or is represented by, a legal practitioner by virtue of subsection (1) (a) or (b).

 


Subsection (1) (a) and (b) provide that:

 


A party to any proceedings before the Industrial Relations Court may-

 


(a) appear personally

 

(b) be assisted or represented by a member or official of an organization of which he or she is a member, an officer of a trade union or employers’ organization, a co- employee, labour officer or any other person that a party so appoints.

 


It is clear from a reading of these provisions that leave to legal representation can only be granted under two circumstances: where the other party is a legal practitioner or where the other party is represented by a legal practitioner. None of these elements were satisfied in this case and therefore from a legal point view this court was not justified in granting leave to the respondent to be represented by a legal practitioner.

 


The policy behind this legal provision is that matters in the Industrial Relations Court should ordinarily be straightforward and easily handled by persons without legal representation. The provision is in effect controlling the appearance of legal practitioners in matters of the IRC. It was envisaged that most litigants in the IRC would be persons appearing in person and probably most of them would not afford legal representation even if they wanted. It is a policy provision aimed at bringing the appearance of fairness in the IRC proceedings where parties that meet have equal court skills either as legal practitioners or as lay persons.

 


The challenge in practical application of the provision that has been argued by parties seeking legal representation is where one party is a company which is a legal entity bearing a legal persona. In such cases which are the majority of cases brought to the IRC, the company argues that according to some law, a company can only be represented in court by a lawyer.

 


Another argument brought by the other party is that they have a right to appear through Counsel and that legislation trying to curtail this right is in fact unconstitutional as it is inconsistent with the spirit of the constitution. A reading of the Constitution provides in essence that there shall be no derogation, restrictions or limitation with regard to- the right to equality and recognition before the law. The only time that the constitution refers to right to legal representation and even imposes a duty on the State to provide services of a legal practitioner is in section 42(1)(c) regarding a detained person or prisoner.

 


The constitution therefore makes no provision in relation to civil matters that a person must of right be represented by legal practitioner. In all other cases a person is merely given the right to access justice and legal remedies and to equality before the law. These issues were not raised in this matter but they lay the background on the subject.

 


The issue of legal representation was tested in the High Court decision of Phiri V Shire Bus Lines [Civil Appeal Number 33/2002 (unreported)], where the Honourable Judge held that:

 

Section 73 does not exclude the appearance of Counsel before the Industrial Relations Court. It only limits such appearance (or it only creates a potential for such exclusion). The Labour Relations Act allows Counsel to appear but only when the Industrial Relations Court has, in its discretion, granted leave for them to do so. When the other party is itself a legal practitioner or is represented by a legal practitioner, such leave will be granted as a matter of course. Where, however, the other party is not a legal practitioner or being represented by one, the discretion whether or not to grant leave for Counsel to appear will have to be exercised more judicially. Relevant considerations might be questions of timeliness, simplicity of the proceedings (that is paying, as much as possible, little regard to undue technicalities) and generally ensuring that the lay party is not taken unfair advantage of. Where for whatever reason the Industrial Relations Court has to decline to grant leave, reasons must be given. The reason might have more to do with making the Industrial Relations Court more accessible (by simplifying the proceedings) and also ensuring that proceedings therein proceed with as much speed as possible seeing that Counsel have unfortunately gained the reputation for putting too much stock on legal technicalities, which apart from reducing the level of accessibility to the ordinary man, also wastes time. (This court’s highlighting)

 


The Honourable Judge has enunciated some of the intentions of the legislature in this provision, vide: accessibility of the labour court to the lay person and expediency in labour matters. It is for this reason that leave to legal representation must be granted only where the provisions of the Act are satisfied.

 


The Law

Procedural Justice

Section 57(2) of the Employment Act states: ‘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 cannot reasonably be expected to provide the opportunity.’

 


In the case of Khoswe V National Bank of Malawi [Civil Cause Number 718/2002 (unreported)] it was stated that where facts of a case are in dispute, it is necessary to give an oral hearing to satisfy the rules of natural justice or the duty to act fairly. A fair hearing becomes the employer’s justification for termination of employment where there is a disagreement of facts. The duty to apply principles of natural justice does arise beyond the broader principle that where one is to affect another’s rights adversely for a reason, the other reasonably expects to be satisfied of the reason. The hearing must be fair and not predetermined.

 


In the instant case the allegation involved acts of acting without authority or flouting company procedures regarding disposal of expired stork. The applicants challenged that the complainant Mr Hank dominated the disciplinary proceedings. They argued that the hearing became unfair when the complainant was the accuser and the judge. The applicants also alleged that they were denied union representation at the hearing; they also testified that their witnesses were intimidated while the respondent’s witnesses were couched to testify against the applicants. These were all pertinent allegations that a court can not ignore.

 


The respondent was not available at the hearing despite a service of notice of hearing. No excuse was given for failure to attend court. The matter therefore proceeded on the basis of section 74 of the Labour Relations Act that mandates this court to proceed with hearing and disposal of a case where a party fails to attend without any valid reasons.

 

It has been held in this court that where an employer gives a reason and asks an employee to answer to that charge, the right to be heard is complied with, see, Fairmount Investments Limited V Secretary of State [1976]2 All ER 865. However a court can interfere with a decision of an employer who has complied with the requirement of charging and hearing an employee where the employee alleges that the hearing was unfair. Unfairness in a sense, for example, that the decision was predetermined, the employee was denied fair representation, the hearing committee was biased by for example including a party with an interest in the outcome of the hearing on the panel, see generally, County Fair Foods (Pty) Ltd V CCMA and others [1999]11 BLLR 1117 (LAC) referred to in Kachingwe and others V Southern Bottlers Ltd [Matter Number IRC 162/2003 (unreported)].

 


In the instant case the applicants alleged that the hearing was presided over by their accuser Mr Hank who was also the judge; they were denied union representations; they were prevented to call their witnesses; and some witnesses were induced to testify against the applicants in consideration of promotions. The respondent did not avail itself to contradict these allegations.

 


Finding

The court finds that the respondent might have had valid reason for dismissal but they failed to comply with the law by failing to afford the applicants fair opportunity to be heard and defend themselves in an impartial setting. The dismissal was therefore unfair.

 


Remedies

Where a party succeeds in a case of unfair dismissal, the court is empowered to award that person a remedy. These remedies are provided in section 63 of the Employment Act. However before awarding any remedy the court must assess the case from the facts to determine the appropriate remedy. As such remedy is not automatic and is not uniform, as the remedy will always depend on the circumstances of the case. The matter shall be set down on a date to be fixed to consider an appropriate remedy.

 


Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: See section 65 (2) of the Labour Relations Act 1996.

 


 

Pronounced in Open Court this 30th day of May 2006 at BLANTYRE.

 


 

 

  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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  • Rachel Zibelu Banda
    CHAIRPERSON.
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