Court name
Industrial Relations Court
Case number
PR Matter 108 of 2009

Hakim v Veolia Water Systems (Proprietary) Ltd (PR Matter 108 of 2009) [2010] MWIRC 7 (16 June 2010);

Law report citations
Media neutral citation
[2010] MWIRC 7




IN THE INDUSTRIAL RELATIONS
COURT OF MALAWI



MATTER NUMBER PR 108 OF 2009



IN THE DISPUTE BETWEEN



FATIMA
HAKIM..................................................................................
APPLICANT AND




VEOLIA WATER SYSTEMS
(PROPRIETARY) LIMITED.......................... RESPONDENT



Coram Jack Nriva, Deputy
Chairperson

D Chiwoni of counsel for the
applicant
R C Kapile
of counsel for the respondent
Gowa
Court Clerk




Nriva DCP




RULING



This is a motion by the
respondent. The respondent seeks that the action should be dismissed
for disclosing no reasonable cause of
action, and also on the ground
that it (the action) is frivolous, vexatious and abuse of the Court
system. Counsel for the respondent’s
argument is that the
respondent paid the applicant all her dues and that the claim for
unfair labour practices does not raise or
disclose a reasonable cause
of action.



The summons is said to be
brought under order 18 of the Supreme Court Practice as well as under
the Court’s inherent jurisdiction.
Suffice to say, as I said during
the hearing, that the Supreme Court Practice has no application in
this Court
1.
Most importantly, what this should mean is that processes of court
proceeding that exist by virtue of the procedure obtaining in
the
White book ought to be, as much as possible, circumvented.



From the Court record, the
applicant commenced the present action on 9th March 2009
claiming severance allowance, transport expenses, leave pay and
damages for unfair termination of services. Later the
respondent
delivered a reply to the claim. At the end of the day the Court
convened a special pre-hearing conference. At the conference,
the
issues but of unfair dismissal were settled. The unresolved issue was
thus referred to trial.



The issue is whether to allow
the motion; that is whether or to dismiss the action for disclosing
no cause of action or for being
vexatious or frivolous or an
otherwise abuse of the court process.








The respondent argues that they
countered the claim and contended that the termination was due to
redundancy. In their view, therefore,
no issue of unfair dismissal
arises. The reason advanced is that redundancy is not unfair labour
practice and therefore the claim
in this action is frivolous,
vexatious and an abuse of the court process. Counsel has made
submissions in form of skeletal arguments
and has cited several
decisions. However, the decisions are in support of, and based on,
Order 18 of the White book. I would, however,
refer to one decision
which has to do with redundancy. Counsel has cited
British
United Show Machinery Co Ltd v Clarke
2
which holds that
where the reason for termination of employment is redundancy, it is
unlikely that the dismissal will be unfair unless
the employer acted
with blatant unfairness. Counsel goes on to observe that where the
employer takes all reasonable steps to consult
the employee or find
him another employment, the dismissal would be fair. Counsel also
refers to
Polkey v A E
Dayton Services Ltd
3
which outlines
circumstances in which redundancy would be held to be unfair. These
include where the circumstances for redundancy
apply equally to other
employees in the same undertaking holding similar positions but those
other employees are not dismissed.



In summary, in respect of the
present matter, counsel for the respondent is of the view that the
law provides that where redundancy
is the reason for the dismissal,
there can be no claim for unlawful termination of service.



The applicants counter-argument
is that the issue of redundancy is one of fact and not of law. On
that point, the argument is that
the court can make a determination
only after hearing both the parties on the issue. Counsel further
argues that whether redundancy
is a fair labour practice depends on
the facts of each case. For that reason, where, for example, there
have been no consultations,
the redundancy would be unlawful. Counsel
also makes comparative reference to the rules under the Supreme Court
Practice
i.e.
that in the High Court, the procedure, of dismissing actions in the
manner the respondent is suggesting, is exercised sparingly.
He also
suggested that this Court is not much stringent on pleadings
4.
For that reason, counsel holds the view that the Court cannot be
justified to dismiss the action.



In conclusion, the applicant
prays for costs of this action arguing that this applicant was not at
all necessary. Those were the arguments
the parties advanced in the
motion.



In making its determination,
this Court makes the observation that the parties agreed on severance
pay and leave days pay as well
as reimbursement of motor vehicle
expenses. However, the Court referred to trial, the question of
unfair dismissal. This perhaps
is what the respondent is referring to
as a claim that does not disclose a reasonable cause of action. Be
that as it may, when the
matter came before the Registrar for
Prehearing conference, in my view, the parties might have been
talking of the same issue when
the matter came for the conference.
That, at least, put the parties at a table discussing the issue
comprehensive to both the parties.
Indeed, it is the case that the
law on pleadings is more or less relaxed in the procedure of the
Industrial Relations Court.
5
It is quite unlikely that this Court would pay much regard to the
technicalities as opposed to the substance of pleadings, if at
all.
Even where the pleadings are in bad taste, the Court will have to
follow the spirit of simplified procedure, and not its inherent
jurisdiction, to have the matter decided on the merits. As stated in

Kankhwangwa v Liquidator, Import and Export (Malawi) Limited
6
it is sufficient if
the respondent appreciates what the applicant is seeking from the
Court.

And looking at the record of the court, the case revolves around the
issue of redundancy, among others. The other issue is, as it
were,
deliberate suffocation of the respondent’s company in order to get
rid of the applicant. These issues may be what the Court
referred to
as unfair dismissal as a question referred to trial. These are
questions for determination as matter of law and facts.
But most
importantly, they are questions of facts. The question would be, for
example, whether there were consultations and/or, to
quote the case
cited by the respondents, whether there were acts of blatant abuse
and/or discrimination. Those issues are quite factual
and, therefore,
amenable to determination and decision by the full court whether
they amount to unfair dismissal or not. The issues,
therefore, ought
to come before the Court for determination. This Court does not share
the view that the action is vexatious. Even
if the issue were only
about redundancy, redundancy may be or may not be an unfair
dismissal. It depends on the circumstances of
the case. It is a
question of facts. It can also be a question of law. But, it cannot
just be said outright that every case of redundancy
is justifiable.
As counsel for the respondent has pointed out there are cases where
redundancy would be unfair.
7



In view of all this, this Court
is of the view that there are issues worth determination and that
that can only take effect after
a full trial. Therefore, this action
cannot be said to be frivolous. The motion is dismissed.



The applicant prayed for costs.
However, this Court is of the view that costs might not be necessary
in the motion. This Court is
not in the habit of awarding costs
except in some prescribed scenarios that are thought to be legally
abhorrent. I do not find this
to be one such a scenario. Therefore,
the Court makes no order for costs. Any party dissatisfied with the
finding, on a question
of law or jurisdiction, has a right to appeal
to the High Court within the next thirty days.








MADE this day of June the 17th
2010








J Nriva



Deputy Chairperson



1
See Chirimba Garments (EPZ) Manufacturing Co Ltd v Nyaika Civil
Appeal Number 58 of 2008




2
[1978] ICR 70




3
[1988] ICR 142




4
Kankhwangwa v Liquidator, Import and Export (Malawi) Limited MSCA
Civil Appeal No 4 of 2003




5
As above




6
MSCA Civil Appeal No 4 of 2003