IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CAUSE NO 924 OF 2001

BETWEEN
:

F.A.K.
KWALENGA …………………………. PLAINTIFF

AND

SOUTHERN
BOTTLERS LIMITED ………DEFENDANT

CORAM
: HONOURABLE JUSTICE NYIRENDA

Nyirongo;
Counsel for the Plaintiff

Njobvu;
Counsel for the Defendant

Mrs
G. Matola; Court Interpreter

Ms
C. Jalasi; Court Reporter.

J
U D G M E N T

NYIRENDA,
J.

The
plaintiff’s action against the defendant is for unfair dismissal
and in that regard he claims damages in various respects
including
loss of career, legitimate expectation of a normal retirement, damage
to his reputation and loss of salary which he
would have received
upon normal retirement. He also seeks re-instatement, presumably in
the alternative.

The
background of the matter is that the plaintiff was employed by the
defendant company as a Tyre Supervisor responsible for management
of
motor vehicle tyres for the defendants fleet of vehicles for the
Central and Northern Region. His duties included maintaining
tyres
for trucks and supervising tyre fitters as well as controlling the
movement of tyres. For certain jobs the plaintiff would
take the
tyres to other companies which specialized in tyre business like
repairs and retreading. One of the companies that the
plaintiff delt
with was Kwik-Fit who specialized in retreading. .

The
events of this case started with seven tyres which were sent for
repairs to Kwik-Fit in May 2001. The short story is that
the tyres
disappeared. Naturally the defendant required an explanation from
the plaintiff as the person who was responsible for
the tyres.

On
the 22^nd
of June, 2001 the plaintiff was called by management of the
defendant. According to the plaintiff he was not told why he was
called until when he was in the office and was being asked about the
disappearance of the tyres. Apart from the verbal response
the
defendant was requested to explain in writing which he did.

The
hearing did not yield much. The defendant still suspected the
plaintiff had something to do with the loss of the tyres.
A few
days later the defendant again called the plaintiff and sought a
further explanation from him. After this meeting the defendant

decided to suspend the plaintiff. The letter of suspension Exhibit
P2 is very brief and says:-

SOUTHERN BOTTLERS LIMITED

TO : MR
F. Kwalenga-Logistics (Transport Workshop)

FROM: Reg. Personnel
Management(CR)

CC : Workshops &
Contract Manager

: Workshop Manager(C &
NR)

: Human Resources
Manager

DATE : 4^th
July, 2001

REF. : AP/318

RE : SUSPENSION

Please refer to the
disciplinary case hearing held in my office on 3^rd
July, 2001 at which you were a respondent to explain your side of the
story about the seven casings collected by Mr Mussa of Nu-Tread
on
22^nd
May, 2001 allegedly on behalf of Kwik-Fit and note that you will not
work until after the Management has read the disciplinary
case report
and decided on what direction to take you through. You will,
therefore, wait at your residence for the Management
decisions.

Signed

R.F. MALILI

RFM/LS

While
this matter was going on there was another development. The
defendant company was going through a restructuring process
because
of the difficulties it was going through in its entire operations.
The restructuring process included adjustments to
the number of staff
in certain sections of the company resulting in massive redundancies.
The section where the plaintiff was
working was not spared. In
fact the plaintiff was among those who were declared redundant.

The
case for the plaintiff in this court is that his redundancy was
calculated to cover up the process of his wrongful dismissal.
That
in any event, the defendant having embarked on a disciplinary process
against the plaintiff that should have been concluded;
that it was
wrong from the defendant to set aside the disciplinary process
without informing the plaintiff of the conclusion thereof.
Counsel
for the plaintiff has submitted in this regard as follows:

Further, by
starting the hearing process, the defendant created an expectation in
the plaintiff, that a result would be known, whether
good or bad.
This expectation was not fulfilled and no reason was given as to why
this was the case. This being a clear violation
of the Constitution.

In this case
therefore, there was a need for the decision to be communicated, for
the hearing to be considered legitimate, taking
into account the
prevailing circumstances at the time. The hearing would have been
considered fair if even despite the other
irregularities, decision
had been communicated. The unfair nature of the hearing is very
apparent when one considers all the
irregularities.

2. 
   Clearly the
   plaintiff like any Malawian citizen was entitled to a fair hearing.
   Despite the prevailing redundancy, the plaintiff
   should have been
   told the decision of the hearing, or at least being told that the
   hearing would not proceed as there was an
   impending redundancy
   instead. This is more so the case since neither the constitution
   nor the defendants conditions of service
   sanction as exception to a
   fair hearing in the manner done by the defendant.

   
   

Further it
was not for the defendant to decide what was best for the plaintiff
without informing the plaintiff why it had decided
to act in the
particular manner it did. The defendant may argue that it was of
more benefit for the plaintiff to be declared
redundant than to be
dismissed as he got redundancy package. True as this maybe, it does
not justify the defendants failure to
communicate its decision. The
defendants were still under a duty to inform the plaintiff and then
tell him that they had instead
decided to declare him redundant
rather than dismiss him. In the absence of this communication, the
redundancy appears to be an
excuse for dismissing the plaintiff.
The defendants probably hoped that they would avoid court proceedings
if the plaintiff was
declared redundant and not dismissed.

In the
premises, we pray that the court finds that the actions of the
defendants were a violation of the plaintiff’s right to
a fair
hearing.

The
defendant’s explanation for what it did was fairly simple. Seven
tyres has been lost. Obviously the plaintiff had some
explaining to
do. That was only proper in the circumstances. In fact the
plaintiff was given two opportunities to explain
himself. If he was
not ready the first time surely when he was called the second time he
must have had his facts ready to give
an explanation at any time even
when called at short notice.

According
to the defendant the way of the redundancy was not calculated to
cover up the looming dismissal of the plaintiff. Mr
Brown, a Senior
Executive of the defendant responsible for strategic and tactical
development and business plans, said when he
joined the defendant
company in February 2001 it immediately became apparent to him that
the company was going through a difficult
time in its operations.
One of the reasons was that it was overstaffed and some activities
were not necessary. He cited the
example of the transport section
where they had big workshops with lots of people and yet simple
things like tyre maintenance were
still being contracted out.

According
to Mr Brown the plaintiff was going to go on redundancy in any event
with or without the disciplinary case. In his view
the plaintiff
must count himself fortunate because although there were sufficient
reasons for dismissing him, management decide
to ignore that process
and declared him redundant. The other reason why the plaintiff
should indeed consider himself lucky is
that he had been warned
before for having caused an accident with the defendant’s vehicle
which he drove without a driving licence.
According to the
defendant that incident alone was sufficiently serious and upon this
second incident the defendant had every
justification to dismiss the
plaintiff; but that is not what the defendant did. According to Mr
Dzimba the defendant’s Regional
Personal Manager the plaintiff was
made redundant alongside 600 others throughout Malawi and further
that infact the plaintiff
ended up with a much better package through
redundancy than he would have received even upon normal termination
of service.

The
plaintiff contends that his right to a fair hearing under section 43
of the Constitution was violated in that the defendant
did not give
him a proper hearing. He was abruptly called to meetings and during
the hearing he was not allowed to call witnesses.
I am afraid the
events of this case are clearly against the plaintiff in this regard.

The
first time the plaintiff was invited to a hearing he was not just
asked for an oral response, he was also asked for a written
response
which he did and the defendant must have looked at that report
Exhibit P1. If the first meeting was not fair enough
for the
plaintiff, when he was going for the second meeting he must have been
ready with a further explanation. In my judgment
the plaintiff was
accorded ample opportunity to tell his side of the events. The
defendant did not have to agree with the plaintiff.
The decision
could have been to dismiss him especially that the plaintiff already
had a bad record. The defendant instead decide
to suspend the
plaintiff in order to carefully deal with the situation and while
considering what would be appropriate the defendant
decided to ignore
the allegations against the plaintiff and allow him to go with the
retrenchment process which was going to affect
him in any event.

The
letter to the plaintiff advising of redundancy which was a standard
letter sent to all employees who had been declared redundant
was as
follows:

Sobo

SOUTHERN
BOTTLERS LIMITED: PRIVATE BAG 1, KANENGO, LILONGWE 4, TELEPHONE 710
077:FAX (265) 711431/710 850

TO : Mr F.A.K. Kwalenga

FROM : Human Resources
Manager

CC : Fleet Manager

Workshop Manger (C &
NR)

Regional Personnel
Manager (CR)

Regional Accountant (CR)

Salaries Officer – BT

DATE : 12^th
July, 2001

REF : GTT/BVGC/L249/01

RE : REDUNDANCY

Due to extreme national
economic conditions that have adversely affected our business
operations year on year for the last two to
three years SOBO has
been compelled to make drastic changes to its operations in order to
survive. As a result of these changes
we regret that your position
will be made redundant with effect from 16^th
July, 2001. Your terminal benefits package will be as follows:-

• 
  Your pay up to 16^th
  July, 2001

  
  

• 
  One month pay in lieu of
  notice

  
  

• 
  Cash in lieu of leave
  accrued but not taken and its prorate leave grant

  
  

• 
  Overtime worked (if any)

  
  

• 
  Severance allowance at the
  rate of one month’s pay for every year served or part thereof.

  
  

All loans and debts fall due
on the day of retrenchment and will be deducted from terminal
benefits. By copy of this memo, the
Financial Accountant is
requested to arrange for the refund of all your pension contributions
(if any) If
you wish to have further clarification about your pay package, please
feel free to contact me or the Regional Personnel
Manager.
The cheque for the pay package will be ready for collection on
Tuesday 17^th
July, 2001 from 9:00am.

Management would like to
take this opportunity to thank you for your services and to wish you
every success in future. Your certificate
of service is attached.

Signed

G.T. THOLE

Obviously
the massive retrenchment process undertaken by the defendant could
never have been for the sake of and aimed at the plaintiff.
It was
well explained to every person affected as well as to Government of
Malawi as Exhibit D15 shows. As it turns out, and
let us be frank
with ourselves, the plaintiff whose services could easily have been
terminated, ended up much better of with the
redundancy. I am sure
it is for this reason that even counsel for the plaintiff
acknowledges that the plaintiff is better of
with the redundancy in
the submission that is referred to above.

In
the result the plaintiff’s case is without merit. It could have
been avoided strictly speaking. In my final judgment,
I dismiss the
action with costs to the defendant.

PRONOUNCED
in Open Court at Lilongwe this 15^th
day of September, 2006.

A.K.C.
Nyirenda

J
U D G E