Hakim v Veolia Water Systems (Proprietary) Limited (Matter No 108 of 2009) (108 of 2009) [2010] MWIRC 7 (17 June 2010);

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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 Court1. 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 Clarke2 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 Ltd3 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 pleadings4. 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) Limited6 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

7