Gunde and Others v Sobo (IRC 182 of 2005 ) (182 of 2005) [2007] MWIRC 66 (13 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 182OF 2005


BETWEEN


GUNDE & OTHERS…………………… ……..……………………....APPLICANTS


-and-


SOBO…………………………………...………………... ……………..RESPONDENT



CORAM: R. ZIBELU BANDA (MS.); CHAIRPERSON
D. NAMANDWA; EMPLOYERS’ PANELIST
MRN PADAMBO; EMPLOYEES’ PANELIST
Gadi; For the Respondent
Applicant; Present
Chinkudzu; Official Interpreter


JUDGMENT

  1. Dismissal- Reason-Operational requirements-retrenchment

  2. Procedure-Information on retrenchment-Unions involvement

  3. Repatriation-Employees to be repatriated after termination


Facts

The applicants were employed on various dates as loaders. They were unskilled junior labourers. They were dismissed for reason of operational requirements of the respondent company that necessitated retrenchment. The company closed the production of Quench and Squash at Blantyre Plant. Therefore the services of the applicants were no longer required. The applicants were paid their dues but were not repatriated. They challenged the termination alleging that the dismissal was unfair. They contended that they should have been transferred to Lilongwe where machines were taken to. While others alleged that the machines that were closed were not the same ones that the applicants were using. In effect alleging that their work was still available in Blantyre.


The respondent on the other hand alleged that the company had stopped some production in Blantyre. The unions were informed about the consequences of such closure. The applicants were also informed and a list of employees to be retrenched included the applicants. The applicants could not be transferred to Lilongwe because they were unskilled junior labourers and that there were plenty more such labourers in Lilongwe who the respondent could employ. It was not economically viable to transfer the applicants to Lilongwe.




The Law

An employer is entitled to terminate services of its employees due to operational requirements of the enterprise, see section 57(1) Employment Act. In this case the respondent proved on a balance of probabilities that the reason for the termination of the applicantss’ employment was due to retrenchment. This is a valid reason. The process leading to the termination was fair.


Finding

The reason for termination was valid and the procedure following the termination was fair. The action is therefore dismissed.


Repatriation

Upon termination of their contracts the applicants were entitled to be repatriated to their various homes or places of recruitment whichever is nearer. The respondent is ordered to repatriate the applicants accordingly with immediate effect.


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: Section 65 (2) of the Labour Relations Act.




Made this 31st day of December 2007 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON



Daphter Namandwa

EMPLOYERS’ PANELIST



Maxwell RN Padambo

EMPLOYEES’ PANELIST