Chioni v Chingwalu (IRC Matter No.135 of 2018) [2018] MWIRC 5 (18 December 2018);

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ORDER ON ASSESSMENT

The two Applicants commenced this matter in the Industrial Relations Court claiming terminal benefits, leave grants and overtime payment. Previously, there were six Applicants but for unknown reasons, four of them fell on the way. Before the matter was brought to court, the Applicants took it to the Labour Office in Mzuzu where an assessment was made and the Respondent was told to pay but they did not. On the 17th of September, 2018, the two Applicants,   successfully obtained a default judgment for all of their claims. They immediately served upon the Respondent a Notice of Assessment which I scheduled to take place on the 3rd of October, 2018 at 9 O'clock in the forenoon. On the date of assessment, the Respondent still refused to appear but the Applicants did avail themselves. Upon application to proceed with the assessment in the absence of the Respondent, and upon proof of service by post, I granted them leave to proceed with their respective evidence.

 

 

EVIDENCE

 

The 1st Applicant, Justin Chiwoni testified that he  was  employed  by  the Respondent on the 1st of August,  2016 as  a  general worker.  He was on a salary of MK20, 000.00 per months. He was terminated in April 2017.  He said the reason for the termination had to do with operational requirement on the part of the Respondent. Upon termination of his employment, the Respondent did not pay him his leave grant for the year 2016/2017 amounting to MK20, 000.00 plus gratuity   amounting   to   MK30,   000.00   and    Overtime   amounting   to MK150,

000.00. He told the court that he used to work for more than 8 hours a day; he worked even during weekends and other public holidays.

The 2nd Applicant, Blessings Chingwalu testified that he was employed on 1st August 2016 and got terminated on the ground of operational  requirements on the 20th of April, 20 17 . He said his monthly salary was MK20, 000.00. He said he was claiming his leave pay for the year 2016/2017 amounting  to MK20,000.00, gratuity amounting to MK35,000.00 plus overtime amounting to MK150,000.00 because he was working for more than 8 hours  per day; he used  to work even during weekends and other public holidays. He finally told the court that the Respondent was based in Blantyre at Trade Fare Ground stand number 74.

ISSUES FOR DETERMINATION

 

The hearing was conducted to assess the quantum of gratuity, leave grant and overtime payable to each of the two Applicants.

DETERMINATION

 

I think my assessment has been made easy by the Respondent's own failure to defendant themselves against all these claims. The first impression I have to make, in these circumstances is that the Respondent has no defence against all these claims. That is perhaps why they did not find any need to avail themselves. While courts have always encouraged parties to be appearing for their cases, I think I would also take this opportunity to encourage parties to simply stay away where they know that they have nothing in defence.

All I can    say   is that whenever there is redundancy   or retrenchment, the Respondent has a duty to pay all terminal benefits over and above other unpaid entitlements before the employee leaves for his or her home. The evidence remains unchallenged that the Respondent only knew to declare the positions occupied by the Applicants redundant but did not want to pay what belonged to them. By section 31 of the Malawi Constitution, every person has a right to fair labor practices. The constitution however, does not define what amounts to fair labour practices. See: Kachinjika vs. Portland Cement Co (2008) MLLR, 161 (HC) and Liquidator, Import & Export (Mw) Ltd vs. Kankhwangwa & Others (2008) MLLR, 219. It has however been held that fair labour practices entail reasonable, fair and even handed  practices  by an  employer  towards employee. In Gwemba vs.  Namiwawa Hotels, Matter No. 132 of 2003, the Court stated:

"S. 31 of the Constitution entitles the employee to a right to fair labour practices. Fair labour practices have not been defined in our laws. But surely they constitute fair, reasonable and even- handed practices by the employer towards the employees.

The two Applicants lost their jobs through operational requirements. The Employment Act does not define operational requirements. What is envisaged here however, are situations of retrenchment and redundancy.  In the case of

 

stated:

"The operational requirements under the Act are retrenchment and redundancy. Retrenchment is workforce reduction due to economic rundown. Redundancy is workforce reduction as a result of technological innovation."

It has however been observed that unlike in cases of termination due to incapacity and conduct, the Act does not provide safeguards for termination due to operational requirements. For this, the Courts have usually used international instruments such as Convention 158 on the Termination of Employment. See: Gladys Matiki case.

Though termination based on operational requirements seems apparently justifiable and incapable of making a basis of action, the same may be unfair if the employer does not use discernible criteria or uses a subjective or discriminatory criteria. Moreover, such exercise cannot be justified where the affected employees are immediately replaced. The exercise may also be unjustifiable where it only affects one employee. See Gladys Matiki case.

 

 

In the instant case, it appears the Respondent did not follow procedures before retrenchment or redundancy. Pursuant to article 14 of the Convention 158 on the Termination of Employment, the Ministry of Labour and Vocational Training established the Policy Statement on Retrenchment and Recruitment Practices, 2000 which lay down the procedure to be followed before retrenchment, the Respondent were supposed to implement the same with utmost caution. These include that the employer intending to effect retrenchment must inform the ministry of the intention and give inter alia the rationale and justification for the exercise. Failure to comply with this, has been held to result to the termination being unfair dismissal.  See:  Gladys Matiki case.

 

Coming to the claim for overtime, it is regulated by section 39 of the Employment Act. An employee who works for more than 8 hours is entitled to overtime. As for leave grant, this is regulated by sections 44 and 45 of the Employment Act. Every employee is entitled to leave. This does not mean that he or she must in fact go on leave. This is in sharp contract with provisions such as section 36 which are in mandatory terms. What is clear is that leave grants are payable whether leave is given or not.

Considering the above, the amounts proposed by each of the two Applicants are infallible, and hence are payable. As a lawyer, I know the Applicants have underestimated their claims. They have claimed less than they were entitled to demand, in these circumstances. The Respondents should consider themselves lucky. If courts were allowed to decide even on those issues not brought before them, the Applicants would have gone away rich men. I let sleeping dogs lie.

In conclusion, I order the Respondent to pay as follows;

1.             MK30, 000.00 being gratuity for each of the two Applicants

11.           MK150, 000.00 being overtime for each of the two Applicants

 

iii.       MK20, 000.00 being leave pay for each of the    Applicants.

In total, the Respondents are required to pay the sum of MK400, 000.00. The whole amount is payable within 7 days from today.

 

Made in chambers today Tuesday the 18th of December, 2018.