IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC PR 344/ 143 OF 2006
BORMAN & OTHERS
G4 SECURITY SERVICES LTD ... RESPONDENT
- CORAM: R. ZIBELU BANDA (Ms); CHAIRPERSON
- Malijani; Employers Panellist
- Kajombo; Employees Panellist
- Ms Munthali; Of Counsel for the Applicants (13)
- Majamanda; Of Counsel for the Respondent
- Gowa; Official Interpreter
- Strike-Lawful strike-In furtherance of strike-Worker or Member of Trade Union engaging in peaceful picketing
- Peaceful picketing- Lawful for a person to be at or near his place of work or business or employers premises in order to peacefully communicate information of peacefully persuading anyone-Not to- Enter that place of work or business- To work- To deal in or handle that employers products-to do business with that employer
- Dismissal-Reason-Picketing-It is unfair to dismiss an employee engaged in peaceful picketing
The Applicants had their services terminated following their appointment to a working committee that would discuss with the Respondents Management the merger between Securicor (Mw) Limited and G4 Securicor. The Respondent accused the Applicants of inciting an illegal strike and intimidating other employees who did not want to go on strike. The respondent invited the Applicants for a disciplinary hearing a day before the threatened strike action and dismissed them on that day. The strike did not take place. The applicants challenged the dismissal claiming that the reason was not valid and therefore that the dismissal was unfair. The respondent averred that the dismissal was fair.
Section 53 of the Labour Relations Act provides that in furtherance of a lawful strike or lock out it shall be lawful for a person to be at or near his or her place of work or former place of work or a place of business of the employer or former employer for the purpose of peacefully communicating information of peacefully persuading anyone (a) not to enter that place of work or business (b) not to work (c) not to deal in or handle that employers products; and (d) not to do business with that employer. In subsection (2) it provides that this right shall extend to any officer of a trade union or employers organisation whose members are acting in furtherance of such strike or lock out.
The respondents in this matter alleged that the applicants gave notice that they were going on strike. The notice was not adequate. They also averred that the applicants were inciting others to go on strike. They also alleged that the applicants were intimidating and threatening other employees to go on strike. However there was no evidence to support these allegations. There was no proof that the applicants incited others to go on strike or threatened fellow employees to go on strike. Further because the applicants were dismissed before the strike actually took place, the respondents could not allege that the notice period was not adequate. Further the question as to whether or not a strike is illegal or not by virtue of not complying with the requisite procedures is to be determined by the Industrial Relations Court which has powers to order an injunction against any intended or actual strike that was perpetuated without following proper procedures, see section 54(1) of the Labour Relations Act.
A reading of section 53 and the whole Chapter V on Dispute Settlement especially provisions relating to unresolved disputes and the right to strike support the action of the applicants. They were under the law entitled to take the steps that they took in furtherance of a strike. It was shown that they had given notice to strike and that they complied with all the other procedures stipulated in section 46 of the Labour Relations Act namely that (a) the dispute must be deemed to be unresolved (b) the dispute is reported to the Principal Secretary and conciliation process is instituted and fails and (c) the matter is not pending for determination in the Industrial Relations Court.
In dismissing the applicants based on the reasons they used the respondents violated provisions of section 57(3) of the Employment Act especially subsection (e) which provides that: The following reasons do not constitute valid reasons for dismissal or for the imposition of disciplinary action:- an employees participation or proposed participation in industrial action which takes place in conformity with the provisions of Part V of the Labour Relations Act.
Employees are, by law allowed peaceful picketing in furtherance of a strike. There was no evidence that the applicants incited a strike (which strike did not actually take place) or intimidated other workers who wanted to work. Under the circumstances it was wrong and unfair for the respondent to dismiss the applicants. The reason for the dismissal is automatically invalid under the law. The dismissal was unfair.
The applicants applied for compensation for unfair dismissal. They also alleged that they were not paid severance allowance. Both claims are allowed. The parties to appear in court for assessment of compensation and determination of severance allowance.
Pronounced this 30th day of January, 2008 at BLANTYRE.
Rachel Zibelu Banda
Nick Chifundo Kajombo