Court name
Industrial Relations Court
Case number
IRC PR Matter 88 of 2005

Mponela v Airport Development Ltd (IRC PR Matter 88 of 2005) [2010] MWIRC 13 (08 September 2010);

Law report citations
Media neutral citation
[2010] MWIRC 13







In
the Industrial Relations Court of Malawi


PRINCIPAL
REGISTRY







MATTER
NO. IRC PR 88 OF 2005







IN
THE MATTER OF DISPUTE



BETWEEN





DOREEN
MPONELA…………………………………… APPLICANT





AND





AIRPORT
DEVELOPMENT LTD………………… RESPONDENT





CORAM : J.
NRIVA; DEPUTY CHAIRPERSON


D.
Z. Namandwa Employers’ Panellist


Ms
E. Mtenje Employees’ Panellist


Applicant
Represented by D Chiwoni of Counsel


Respondent
Represented by Namagonya and Muhome of Counsel


Court
Official: Chimkudzu






JUDGMENT



Nriva,
DCP:


In
this action, according to the statement of claim, the applicant was
in 1996 employed by the respondent as secretary to the commercial
officer in the respondent’s company. In 2004, she received a letter
transferring her to the respondents sister company. She refused
to
take the offer and she was dismissed. She therefore seeks damages for
unlawful dismissal. In defence the respondent argues that
it was
entitled under the labour laws to terminate the contract of
employment. Their position is that there was redundancy and that
they
informed the applicant accordingly but she decided to stay at home.
They further argue that they offered an alternative employment
for
her in Malawi Catering Services Limited but she denied the transfer.


We
therefore proceeded to hear the matter to determine whether the
respondent unfairly dismissed the applicant. The applicant was
the
only witness in her case. She stated that she was employed by the
respondent in 1996. She testified that on 1st March 2004
she was called into the Personnel and Administration Officer’s (Mr
Nyondo’s) office and told to vacate her office
and wait at the
entrance where the guard used to operate from. She further alleged
that Mr Nyondo advised her to wait at home. On
14th March
2004, she received a letter dated 1st March, 2004 offering
her employment with Malawi Catering Services Limited. Her response
came through a letter dated 16th March 2004 in which she
declined the offer to work at the Malawi Catering Services Limited
and offering herself for early retirement.
She wrote again on 4th
May 2004, giving the respondent 14 days within which to make a
decision. The respondent gave their response by a letter of 6th
May 2010 disputing the allegation that the respondents advised her to
wait at home and reiterated the circumstances in which the
redundancy
arose and asked the applicant to make her own proposals by 14th
May 2004 on how the respondent would incorporate her. The applicant
also tendered in evidence a letter from her lawyers dated 13th
May 2004 and a letter from the respondent terminating her services
dated 17th May 2004.






In
cross-examination the applicant maintained that she remained at home
on advice from the respondents. She admitted knowing the reasons
for
her redundancy, namely the merging of the company secretary’s and
legal counsel’s offices. She stated that she had denied
to be
transferred to Malawi Catering Services even though her benefits
would be the same. She pointed out that she would not have
job
satisfaction at Malawi Catering Services. As to whether an employee
could refuse to be transferred she was not sure on the policy
of the
company.





The
respondent had one witness, Mrs Magombo. She adopted the documents
used in the applicant’s case and added a document which
was a
memorandum by Mr Nyondo (deceased) refuting the Applicants
allegations that she was told to go and wait at home. The memo
further
narrated how the applicant had stormed his office and said
‘bad’ words against him.






Mrs.
Magombo testified that there was redundancy in relation to the
applicant’s services; they informed the applicant about it but
she
decided to stay at home. The company offered an alternative
employment for her in Malawi Catering Services Limited, with no less
favourable conditions but she denied the offer.





In
cross-examination, the witness said that the respondent and Malawi
Catering Services Limited operate under the same management
and that
staff could be transferred from one company to the other.


That
is the summary of the evidence that the parties presented in the
court.







In
our view we hold the opinion that on the facts of the case, the
applicant’s position had become redundant. The respondent did
not
renew the contract of the officer the applicant was serving (the
company secretary). As a result his office was merged with that
of
the legal officer. As the legal officer was to come with his
secretary the applicant’s position had become almost redundant.
Section 57(1) of the Employment Act justifies operational
requirements of an undertaking as a reason with which an employer may
terminate
an employee’s employment. By operational requirements is
meant requirements based on the economical, technological, structural
or similar needs of the employer. On the evidence of the respondent,
the respondent went through some sort of restructuring requiring
it
to merge some positions. As a result of that merger, the applicant’s
position became redundant. Of course, when effecting the
restructuring, the employer has an implied obligation to act with
some fairness. Therefore, the next question is whether the
respondents
acted with fairness. To act with fairness, among other
things, the employer must consult the employee on the issue of
redundancy.
See International Labour Organisation Convention 158. The
decision of Boloweza and another v Doogles Lodge [2008] MLLR
362 suggests factors that the court must address itself to establish
whether a particular redundancy was lawful. The
questions are:
whether there were consultations between the employer and the
employee(s) or employees’ representatives; whether
there was any
attempt to reach a consensus; whether there was any disclosure of
information to the employee; whether the employer
afforded the
employee an opportunity to make representations; and the selection
criteria in relation to the employees who were to
be retrenched or
redundant.







The
circumstances of the case are that there were some changes in the
structural requirements on the part of the respondent. We find
that
the respondent went on to consult the applicant on the issue. They
also offered her an alternative job with similar benefits.
Beyond
that, after she refused the offer, the respondent afforded the
applicant to give her representation as to where she would
fit in the
new organisational structure of the respondent. In this regard we
find that we may respond to the tests as suggested in
Boloweza v
Doogles
as follows:



Was
there consultation between the employer and the employee? Yes, there
was. In our finding, the respondent consulted the applicant
on the
fate of her position within the organisational structure. Was there
an attempt to reach a consensus? Yes. The respondent offered
the
applicant an alternative employment. The respondent even went ahead
to ask the applicant to make suggestions as to how they would
fit her
in the structure. So this response of ours also answers the question
whether the respondent afforded the applicant a chance
to make
representations. The next test is was there disclosure of information
to the applicant? Yes. We find that the respondent
took all the steps
to inform the applicant about the situation of her employment. That
is to say that the some two offices had been
merged. Resultantly,
there would be one officer and one secretary. Finally what was the
selection criterion? The criterion was the
choice of the person
coming to occupy the office. He already had a secretary. Therefore,
he chose the secretary who was already serving
him. The criterion
was, in our view, reasonable in the circumstances. We cannot question
the choice and the exercise of that discretion.







In
view of all this, the respondent did not unlawfully terminate the
employment. Rather, the applicant failed to cooperate with the
respondent when her job became redundant. She failed to collaborate
with the respondent when it offered her an alternative employment
citing absence of job satisfaction. How more fair would the
respondent have been? After all, the conditions and benefits of
service
were still the same. This action has no merit. We dismiss the
action of unfair dismissal in its entirety.











MADE
this 9th day of September 2010



















J.
Nriva



DEPUTY
CHAIRPERSON















D.
Z. Namandwa



EMPLOYERS
PANELLIST



















E.
Mtenje



EMPLOYEES
PANELLIST



5