Gandaira v Unilever South East Africa (Matter No PR 255 OF 2008) (NULL) [2010] MWIRC 4 (01 March 2010);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI



PRINCIPAL REGISTRY



MATTER NUMBER PR 255 OF 2008



BETWEEN

ANDREW GANDAIRA................................. APPLICANT

AND

UNILEVER SOUTH EAST AFRICA........................................ RESPONDENT

CORAM
Panel: N’riva Deputy Chairperson, Namandwa Employer Panellist, Kajombo Employee Panellist

Applicant: Present and represented by Chitsakamile, legal practitioner

Respondent: represented by Tembo Mrs, Head of Human Resources and Manda, legal practitioner

Court Official: Ms Mbobe



N’riva DCP

JUDGMENT

The respondent company has been undergoing restructuring. As a result, it has had several retrenchments concerning redundant jobs and positions. The applicant was one of those whose jobs became redundant. He was retrenched but did not get his pension except his own contribution. The reason was that he had not reached the minimum retirement age of 55.

At this hearing, there are four questions for determination: Whether the applicant was consulted on retrenchment; secondly, whether the applicant qualified for an early retirement; thirdly, whether the respondent is guilty of unfair labour practices and in the alternative whether the applicant was unfairly dismissed and lost his retirement benefit.

We shall determine these issues with an eye on the evidence tendered during the hearing.

On the first question on whether the applicant was consulted on retrenchment, the respondent’s witness testified that the respondent started undergoing some restructuring in 2001. This necessitated that some positions would be redundant. From the evidence available, the respondent took steps to inform all the employees and for the employees to prepare for the restructuring and its consequences.

We believe, at the time the respondent was informing the employees generally, all the employees were consulted. Unless the applicant needed another level of consultation, we believe the respondent did its best not to have any of the employees, as it were, caught unawares. From the evidence of the respondent, the talk of retrenchment started as far back as mid 2006. During the last quarter of 2006 the respondent’s managing director (M.D.) came to Malawi on an operational visit. During the visit, the M.D. also talked about the impending retrenchment. The employees were informed generally about the restructuring as well as the retrenchments. Furthermore, the respondent took steps to orient the employees in running businesses. From this evidence, it would not be proper to accuse the respondent of not consulting the applicant on the issue of retrenchment. Furthermore, the witness also talked about the fact that line managers had one-on-one discussions with the retrenched individuals. Perhaps, the question the applicant wanted the court to deal with concerned consultation on the issue of pension. But, as far as the retrenchment itself was concerned, the respondent took all the reasonable steps to consult the employees.

Coming to the three other questions, the applicant testified that on 16th February 2007, he received a letter from the respondent that his contract would end on 31st May 2007. Consequently, the respondent paid him his pension contribution. The respondents told him that he had not yet attained the age 55. He was two months below that age. As a result, he applied for an early retirement on 10th May 2007. Long time elapsed before he received a response to his request. Later, the respondents turned down his proposal on the ground that since the reason for his retrenchment was redundancy, they could not wait for him to attain 55.

In the evidence of the respondent’s head of Human Resources, Mrs Tembo, when the respondent organised the business training for the prospective employees on retrenchment, some people raised several issues. Some of these issues had to do with early retirement. These people were advised to go to the human resources department to raise the issues. The respondents had to consult AON Limited. This was the firm which was responsible for running the respondent’s pension scheme. The applicant did not come to the respondent’s premises when AON was available (he came after AON had left). Mrs Tembo gave an example of another employee who was far below 55. He asked for early retirement and he was asked to surrender some of his monetary benefits. The respondent’s witness was of the view that the applicant would have been treated the same way.

In our considered view, the way the respondent treated the applicant leaves a lot to be desired. In our opinion, the respondent treated the applicant unfairly. The applicant had worked for the respondent for a long time. He was only remaining with two months for him to retire. We do not agree with the respondent’s principal witness when she says that “As a human resources practitioner, I would not talk about fairness when it comes to rules.” In the present age and era people management cannot be something mechanical; it has to have a human face. Further, the Constitution, the supreme law of the land, requires the application of fair and safe labour practices. See Chilala v Petro Services IRC matter number 158 of 2000. Fair or unfair labour practices encompass a wide range of issues including provision of benefits to employees. It would thus be a requirement that employees’ benefits are not unnecessarily and unreasonably scrapped. The modern trends in labour law are in favour of protection of employees at the workplace-Mwaungulu J, OA MAsuputo Marinho v SGS (Bt) Pvt Ltd Civil Cause number 508 of 1996. Our view is that the respondents failed to act in such a manner as would enable the applicant to enjoy his retirement package. We believe the respondent had discretion to act in such a manner that would have had positive results on the applicant. After all, the witness herself indicated that “But when we say ‘come, let’s talk,’ the rules can be looked at from another angle” To us, this sounds like saying that the rules and regulations can be applied humanely. The rules can be applied in a fair-result-oriented fashion. Additional to that, the witness concedes that a person can have an early retirement in very special ‘cases’. In all fairness, this case, we hold the view, would have been one such a special case. Thus, our finding on the remaining three questions is in affirmative. We find that the applicant had to qualify for early retirement. For that reason, the way the respondent conducted itself, it is guilty of unfair labour practices. To that end we find that the retrenchment, to the extent of the unfairness, rendered the applicant to lose his retirement benefits. We therefore order that the applicant should be entitled to his terminal benefits. The respondents should calculate, and pay the applicant, the sum he would have been entitled to benefit but for the redundancy.

Each party has a right to appeal, within the next thirty days, against the whole of this decision or any part which they are discontented with.



MADE this 1st day of March 2010





JACK N’RIVA

DEPUTY CHAIRPERSON









DAPHTER NAMANDWA

EMPLOYERS’ PANEL







NICK KAJOMBO

EMPLOYEES’ PANEL