IN THE INDUSTRIAL RELATIONS COURT
MATTER NO. 18 OF
M.C.C. MKANDAWIRE, CHAIRMAN
Present (Represented by Mr. Chinula of Counsel)
George Chapalapata Official Interpreter
J U D G M E N T
in Issue : Unfair termination of employment.
This is a
matter in which the Applicant Phillip Scot Kanada is claiming against
the Respondents Seba Foods Limited. The claim is
based on a trade
dispute of unfair termination of employment which has been denied by
the Respondents . The Respondents have said
that the Applicants
employment was terminated as a result of his position of production
supervisor being declared redundant.
Survey of Evidence
joined the Respondents in 1997 as a n intake sales clerk. He proved
very competent to the point whereby he was elevated
to the position
of production supervisor. His rise can easily be traced through
letters of promotion which have been tendered as
App Ex 1 and 1(a).
Apart from his duties as production supervisor, the Applicant was
also responsible for several other things.
He was looking after the
warehouse as well as recruitment of staff. It is his evidence that
all went on well until the 23rd of February, 2001 when he
was shocked to be told by his boss Mr. Burgess that his employment
was terminated. This really surprised
him and he asked the boss as
to why he had lost his job, but he was not told the reasons. He then
decided to write the Respondents
so that they could put it in
writing. He tendered the letter as App Ex No.2. He has never
received any response to this letter
and as such, he did refer the
matter to the Ombudsman who later referred him to this Court. The
Applicant told this Court that the
Respondents paid him all his dues
for the years he had been with them but the only unfairness he is
blaming them for is the manner
in which his employment was
terminated. He gave as an example that some of his friends got
letters telling them that they were to
be laid off as a result of
redundancy. But for him, nothing of that sort was written.
In defence, Mr. A.
Burgess who is the Managing Director told the Court that the
Applicant job was terminated as a result of redundancy.
the redundancy was effected, he called the Production Manager a Mr.
Ngwira with whom he discussed the situation at the place
After a decision was made to declare the post redundant, he
approached Mr. Jere the office Manager to enquire from ministry
Labour as to the entitlements of the Applicant once he was made
redundant. The Ministry of Labour accordingly advised them.
time for the pay of February, 2001 was ripe, he called the Applicant
to his office and informed him about the sad news. The
told to go to Mr. Jeres office in order to collect his dues.
Although he collected all his dues, he still felt
that he was
unfairly treated in the way the termination of his employment was
effected. This is why he first complained to the Ombudsman
on referred him to this Court hence these proceedings.
Whenever there is a
dispute in relation to termination of contract this Court has always
first referred to Section 31 (1) of the
Republic Constitution which
person shall have the right to fair and safe labour practices and to
The term safe labour
practices has now received a lot of interpretation by this Court and
there are several decided cases by this
Court which do clearly
illuminate this point.
The next legal foundation that this Court keeps on referring to is
Section 57 of the Employment Act which provides:-
employment of an employee shall not be terminated by an employer
unless there is a valid reason for such termination connected
the capacity or conduct of the employee or based on the operational
requirements of the undertaking.
Thus the key word in this provision is valid reason. Where
the termination is based on operational requirements of the
undertaking, the employer is thus expected to justify why the
situation is such.
Before the Court finally analyses the case, let me put it on record
that this Court is highly indebted to Counsel for the Respondents
the submissions that were made in this case. The Court is again very
excited that apart from the High Court decision and English
Counsel also referred to one of the cases decided by this Court which
is the case of Hewitt Gomile vs- Stansfield Motors
Matter No. IRC 75 of 2000 where the Honourable Chairman said:-
is clear from the word go that the Applicant was put on redundancy.
It was not really termination or dismissal in the normal sense
we use these words. This Court has stressed on times without numbers
that Labour Law is not against redundancies. That cannot
case. After all, in this changing economic environment, redundancies
are the order of the day. The global economy is revolving.
information technology all over the world whereby more people are
finding themselves at the receiving end.
The foregoing quotation shows that
redundancy is acceptable as a reason for termination of employment.
It is not sufficient however
for an employer to allege a need to
terminate employment on the ground of redundancy. There is need for
the actual reason for the
decision in order to establish whether it
is a legitimate exercise of management prerogative. Substantive
grounds for retrenchment
have to be given. These would include
economic down run, technological change, reorganization of the
enterprise and sale, merger
or closure of business.
In this present case,
it is rather hazy as to what led to the termination of the
Applicants employment. There is nothing in writing
to show that
the reasons were as a result of redundancy. The only pointers that
the Court gets are through the correspondence between
and the Respondents. The letter written by Mr. Jere dated the 23rd
February, 2001 which is App Ex 4 does not contain any reasons at all.
This therefore means that the Respondents already violated
statutory rights of the Applicant as enshrined in Section 57 (1)
which requires that there should be a valid reason.
Putting that aside, if
one goes through App Ex 3 (a) a letter from the Respondents to the
Ombudsman, it becomes even more clearer
that the Respondents were
claiming that the Applicant by February 2001had become incompetent or
had no skills or capacity to operate
the machines. If that is the
case, then the Respondents are blowing both hot and cold. It
therefore means that this was not termination
as a result of
redundancy but incapacity. Thus there is a clear contradiction. If
indeed that was the case, there is no evidence
on record to show that
he was cautioned about his shortcomings. In the submissions made by
Counsel, it was also stressed that the
Applicant was unable to make
the grade of production manager that Management expected him to
attain. That is why Management decided
to make the position of
production supervisor redundant. The Court finds that the
Respondents seem to be confused with the term
redundancy. You do not
make a position redundant just because the incumbent is failing to
meet the required standard. If that is
the case, then you do
terminate the incumbents employment because of incapacity. The
Court therefore has difficulties to agree
with the Respondents that
they had valid reasons in this case. If indeed the Applicant was
unable to cope as alleged, they could
at least have cautioned him
about his shortcomings. That is what is required under the term fair
labour practice. The employer
has to make the shortcomings of the
employee known so that there is room for improvement. If the
employee fails to jack up, then
the employer has the liberty to
institute other remedial steps.
The issue that has
troubled the mind of the Court here is the way the Respondents
approached the alleged redundancy. There is need
fairness even if one is going on redundancy. Although the decision
to retrench (and I am using the work retrench
redundancy) is the prerogative of management, it is always fair that
there should be consultation with the concerned party
the bombshell. It is not fair that employers should take their
employees by surprise. The Applicant in this case
ambushed by the news of redundancy. Redundancies if they are genuine
are not a secret. The employer has to make the
news known to the
employee and they can even discuss on how to salvage the situation.
But the procedure in this case was extremely
unfair. When the
Applicant did report for work on the material day, he was invited to
the office of Mr. Burgess and told that his
job was no more. He was
directed to go to the office of Mr. Jere in order to get his dues.
This is extremely unfair. The news
indeed came like a bombshell.
The Applicant was in the employ of the Respondents since 1997. By
2001, he had been there for over
4 years. The Respondents did not
even bother to tell him the reasons. The Court cannot believe Mr.
Burgess that he verbally informed
the Applicant about the reasons for
termination yet the letter he was written has none.
At the end of day, the
Court finds that the Applicant was unfairly treated both in substance
and in procedure. It is thus ordered
that he be paid compensation
for the unfair termination of employment that he suffered at the
hands of the Respondents. As to what
he was already paid, I take it
that those were payments to which he was entitled as a result of the
contractual terms he had with
the Respondents. The compensation
which he is being awarded herein is as a result of the statutory
requirements that are now enshrined
in the Employment Act 2000 in
particular Section 57.
I would however like
to advise the Respondents that they should also provide the Applicant
with a certificate of employment which
is to be used as his reference
when seeking employment. Otherwise, this Court does not find any
merit in awarding any compensation
because of his failure to secure
On a rather different
note, this Court would like to appeal to Counsel in this country that
they should be careful when submitting
cases in this Court decided in
the High Court. For example, there are several case authorities
being cited in this Court based on
purely breach of contract. This
Court does apply in most cases the Labour Relations Act. Even the
remedies that the Court can award
are clearly stipulated in these
Acts. Thus if reliance is put on High Court decisions which purely
address issues of breach of contract
as construed at Common Law, then
they may be very irrelevant in this Court. There should also be care
when referring to High Court
decisions which have no reference to the
Employment Act or Labour Relations Act. For example in the
submission Counsel referred
to the case of R.W.
Thangalimwadzi vs- David Whitehead & Sons (Malawi) Limited
Civil Cause No. 149 of 1992. With due respect,
this case was purely referring to Common Law principles and pure
fundamental issues on the relationship of master
and servant that
indeed revolves on mutual trust and confidence.
I do agree that the
employer has the right to terminate employment upon giving notice.
But there should be more care now with the
advent of the Employment
Act of 2000 that apart from the contractual terms that one may have
in Conditions of Employment, this Act
has also created statutory
rights which have to be respected by the employer. That is why there
is now the concept of fair and unfair
Having found that the
termination herein was unfair, I do order that the Applicant be
compensated with such amount which would amount
to one weeks pay for
each year of service. The money to be paid immediately through the
23rd day of July, 2002 at Lilongwe.