IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 118 OF 2002

BETWEEN

CHIMBWANYA…………………………………………
……………......APPLICANT

-and-

TEA RESEARCH FOUNDATION…………..………...
……………..RESPONDENT

CORAM: R. ZIBELU
BANDA (MS.); CHAIRPERSON

A MALIJANI;
EMPLOYERS’ PANELIST

M PADAMBO; EMPLOYEES’
PANELIST

Zambezi; For Respondent

Applicant; Present

Chimkudzu; Official
Interpreter

JUDGMENT

1. Dismissal-
   Reason-Operational Requirements of the Respondent-Retrenchment

2. 
   Procedure-Consultations

Facts

The applicant was employed
by the respondent on 24 July 1994. Her services were terminated on 31
January 2002. The reason for termination
related to the Respondent’s
operational requirements that necessitated carrying out some
retrenchments due to financial problems.
The applicant was informed
of the financial difficulties facing the respondent prior to the
termination. The applicant challenged
the termination arguing that
the termination was unfair. She sought the remedy of reinstatement.
She also claimed salary arrears
and balance on severance allowance.
The respondent denied liability.

The Law

Section 57(1) of the
Employment Act provides that before dismissal a person must be
provided with a valid reason. While section
57(2) of the act provides
that where the reason is connected with a person’s capacity or
conduct, he must be given an opportunity
to be heard.

In this
case the reason for the termination was retrenchment. The Employment
Act in section 57(2) seems to preclude an employer
from providing a
hearing in cases where the termination is necessitated by reason of
operational requirements of the respondent’s
enterprise. However
this court has decided that an employer has an obligation to conform
to some kind of hearing procedure even
in cases where the termination
is due to operational requirements of the employer’s enterprise,
see Malawi telecommunications
Ltd v Makande. It is not a disciplinary
hearing but a consultation process where the employer gives notice to
the employee of the
situation and the employee appreciates the
problem. In this case there was doubt that the respondent was facing
financial problems.
They had to close down some departments including
the applicant’s. The applicant seemed to have appreciated the
situation but
was not happy that she was not given ample notice to
prepare for the termination. The court found however that the
applicant was
paid the equivalent of three months salary in lieu of
notice. This notice was adequate to help the applicant adjust and
take measures
if any to mitigate the loss of her job. The court found
as a fact that the applicant’s termination was fair.

The
applicant alleged that she was being underpaid and she sought salary
arrears. This claim was not proved and it is dismissed.

The
applicant further claimed that she was underpaid in severance
allowance. This claim was not substantiated by evidence. It is

dismissed.

Finding

The court finds that the
reason for dismissal was valid and that the applicant was accorded a
fair process before termaintion. The
respondent complied with the
requirements of the law. This action is therefore dismissed in its
entirety.

Any party aggrieved by
this decision has the right of appeal to the High Court within 30
days of this decision. Appeal lies only
on matters of law and
jurisdiction and not facts: Section 65 (2) of the Labour Relations
Act.

Made
this 4^th day of March 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Maxwell
R Padambo

EMPLOYEES’ PANELIST