Betenigo v BCA Bestobell (MW) Ltd (RC 44 of 2000)) (44 of 2000) [2006] MWIRC 90 (20 July 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 44 OF 2000


BETWEEN


BETENIGO………………….….………………………………………… APPLICANT


AND

BCA BESTOBELL (MW) LIMITED.…………….…………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Applicant; Present

Respondent; Absent without excuse

Gowa; Official Interpreter



RULING

Disciplinary action-Suspension-For complaining against the employer-Does not constitute valid reason for imposing disciplinary action.


Facts

In this case the applicant was suspended from duties without pay on 21 December 1999 allegedly because the applicant had threatened to sue the respondent for unlawful arrest and loss of property due to a robbery at the applicant’s house during the night that the applicant was detained at a police station at the alleged instance of the respondent or their officer.


The respondent did not appear in court to respond to the applicant’s allegation despite the fact that the respondents were served with a notice of hearing. There was no reason given for the respondent’s failure to attend court. The matter therefore had to proceed in accordance with section 74 of the Labour Relations Act.


The suspension was a result not of misconduct or incapacity but because the applicant was contemplating legal proceedings against his employer involving allegations of violations of laws in particular personal liberty and property rights. This is not a valid reason for taking disciplinary action against an employee.


Finding

The court finds that the suspension of the applicant was without any reasonable grounds in law and that it was unfair labour practice contrary to section 31 of the Constitution.



Order

The court orders that the respondent pays the applicant his salary arrears from December 1999 to date of this judgment at the rate of K3 700-00 per month. The total award is: MK296 000-00. The court further orders the respondent to reinstate the applicant forthwith unless they have a valid reason for not reinstating him in which case the respondent must compensate the applicant for termination of services. Both orders are with immediate effect. The money to be paid into the Industrial Relations Court.


The applicant had testified that his salary was MK6 500-00, but this amount was not pleaded nor was it proved. The court therefore considers MK3 700-00 as a true reflection of the applicant’s salary because it appeared in his pleadings.


The applicant claimed leave grant but this amount and claim did not appear in the statement of claim hence it has not been considered because it was not pleaded.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this date. Appeal lies only on matters of law or jurisdiction; section 65 (2) Labour Relations Act 1996.


Pronounced in Open Court this 20th day of July 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIPERSON.