Divarson & 23 Others v Makandi Tea and Coffee Estate (IRC 446 of20022 ) (NULL) [2007] MWIRC 4 (30 October 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 446 OF 2002


BETWEEN


DIVARSON & 23 OTHERS …………………………………………… APPLICANT


-and-


MAKANDI TEA & COFFEE ESTATE …………………………… RESPONDENT



CORAM: RACHEL ZIBELU BANDA (MS); CHAIRPERSON
NICK CHIFUNDO KAJOMBO; Employees’ Panelist
AM MALIJANI; Employers’ Panelist
Applicants; Present
Mthethiwa; Farm Manager for the Respondent
Jorgen Jorgensen; Internship Student ICJ Copenhagen (Observer)
Nyabanga; Official Interpreter


JUDGMENT

  1. Dismissal-Reason-Must be valid and justify action taken by Respondent

  2. Procedure-Right to be heard-Right to defend oneself-Must be fair

  3. Punishment-Must be reasonable-To fit the offense


Facts

The applicants were dismissed for abandoning work. They abandoned work after failing to agree with management on rate of wages. The applicants however defended themselves that they had been promised higher wages which were unilaterally reduced without proper consultation. They indeed abandoned work but the next morning they came back to the field to continue working and to negotiate for higher rates. The respondents did not want to talk; they proceeded to dismiss all 23 of them. The reason was refusal to follow company procedures, that is, to finish an assigned work within the prescribed time.


The respondent did not show court how this abandonment of work for a few hours affected operations. This abandonment of work was for a few hours and for a minor disagreement which could have been resolved through discussion. The applicants realized that they had acted with haste and hence they came back to resume work and try to negotiate. The respondent could not have any of it and proceeded to dismiss despite the fact that the applicants were genuinely acting under a genuine mistake on rates promised by their Supervisor.


The court finds on the facts that the respondent acted unfairly. The decision was too severe for the offence and was arrived at without considering the plight of the applicants. The applicants were promised a rate and when it was reduced for a good reason according to the respondent, this should have been communicated to the applicants before unilaterally making a decision to reduce the rate for that particular field.


The Law

In all dismissal cases employers must act with fairness and must apply rules of natural justice as enshrined in the Employment Act, sections 56 and 57. They must assess each case according to its merits and act with lenience where an employee gives a good reason for his action and offers to continue with work. It was held in Mtonga v Malawi Savings Bank [Matter Number IRC 126/ 2000 that an employee is entitled to ask for better conditions of employment. It was also held in Matipwiri v Securicor (Mw) Ltd [Matter Number IRC 131/2001 (unreported)] that penalty must fit the offense.


Finding

The reason for dismissal was not valid and process before dismissal was unfair. According to section 58 of the Employment Act, this court must find that the termination was unfair on both substance and procedure. On procedure because the respondent did not hear the applicants’ side and defence and if they heard them, they did not take their defence and explanation into consideration when making the decision to dismiss.


Remedy

In any case where an employee succeeds in a dismissal case, the court makes an award in accordance with section 63 of the Employment Act. The matter shall be set down on a date to be fixed to assess an appropriate remedy and both parties shall be required to attend. Evidence of past wages, any allowances and benefits received during employment shall be required as evidence on assessment.


Any aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 30th day of October 2007 at Blantyre.



Rachel Zibelu Banda

CHAIRPERSON



Nick Chifundo Kajombo

EMPLOYEES’ MEMBER PANELIST



Aiman M Malijani

EMPLOYERS’ MEMBER PANELIST