IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

MATTER NO. 154
OF 2001

BETWEEN:

R.J.D.
MKWEZALAMBA…………………….……..……..APPLICANT

-and-

MALAWI POSTS
CORPORATION………………...…RESPONDENT

CORAM:

 HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Mrs. Ching’oma,
Employees’ Panelist

Mr. Nindi, Employers’
Panelist

Applicant, present

Respondent, present
(Represented by Counsel Khuze Kapeta)

Mr. Lora/Kalulu –
Official Interpreter

J U D G M E N T

Matters in Issue: Unfair
Retrenchment and victimization of the Applicant as a result of his
involvement in Trade Union activities

This matter has been
brought by Mr. Robert J.D. Mkwezalamba the Applicant against Malawi
Posts Corporation (MPC) the Respondents.

In his statement of
claim, the Applicant has disclosed an alleged trade dispute of
unjustified retrenchment. The Applicant at first
applied for the
relief of compensation up to his normal retirement viz salary,
pension, severance allowance and other monetary benefits
contained in
the Malawi Posts and Telecommunications Corporation (MPTC) Conditions
of Service and collective agreements. At a later
stage however the
Applicant applied to amend the relief to be that of reinstatement; an
application which the Respondents vehemently
objected. We shall be
commenting on that at a later stage in this judgment.

The Respondents
filed in a defence to the claim put by the Applicant. In broad terms,
the Respondents said that the services of the
Applicant were not
terminated as a result of his involvement in an illegal strike. The
Respondents say that the Applicant’s services
were terminated as a
result of restructuring the Respondent’s activities whereby the
Applicant’s services became redundant.

Before we go
further, let us first settle the issue in relation to the change of
relief by the Applicant from that of compensation
to reinstatement.
We have looked at the submissions made by learned Counsel for the
Respondents. Counsel repeated in his submissions
that the relief of
reinstatement was sought by the Applicant after all the evidence
relating to the Applicant case had been adduced
and tendered. There
was thus no basis for this relief Counsel observed. Counsel further
urged this Court that the Applicant should
not turn the Court into a
"club". In addressing this issue, we have first looked at
the spirit of the Labour Relations
Act No. 16 of 1996 which Act
governs the operations of this Court. We note that Section 71
provides as follows:-

"(1) The Chief Justice, on
the advice of the Chairperson of the Industrial Relations Court, may
make rules for the purpose of
regulating the procedures of the
Industrial Relations Court and such rules shall have regard to the
need for informality, economy
and dispatch in proceedings of the
Industrial Relations Court.

(2) The Industrial Relations
Court shall not be bound by evidence in civil proceedings."

From the foregoing,
it is thus clear that rules of procedure in the Industrial Relations
Court are somehow more flexible and easily
accessible by the parties.
Relevant to the issue at hand is Rule 25 (1) (f) of the Industrial
Relations Court (Procedure Rules) 1999.
This rule provides:-

"Without prejudice to the
decision – making power of the Court under Section 67, the Court
may on application or of its own
motion at any time – allow any
party any time to amend his application or his opposition."

This rule is very
crystal clear and does not need further postmortem. The catchwords
are at any time. Thus the Applicant having applied to amend
the relief sought after he had already given the side of the story
did not breach any
rule.

We would like to
appeal to our Court users especially the legal fraternity that it is
high time they got acquainted with the Labour
Relations Act,
Employment Act and the rules governing the operations of the
Industrial Relations Court. We have at times been lest
astounded to
see honourable learned friends from the bar completely out of tune
with the current developments in Labour Law especially
the operations
of the Industrial Relations Court and the rules which are in use in
this Court. These rules should be well understood
just like the Rules
of the Supreme Court (RSC) are. Our decision therefore to allow the
Applicant amend the relief was well founded
and the discretion we
used was after having taken into account the objections raised by
Counsel which we found to have had no merit
at all. This issue having
been put at rest, we shall now look at the evidence as it came from
both sides.

EVIDENCE

The Applicant gave a
solid background that led to this case. He told the Court that he was
employed by the Malawi Posts and Telecommunications
Corporation as
accounts assistant in 1996. At their place of work, they established
a trade union known as the Malawi Posts and Telecommunications
Union
and he was elected as its General Secretary. The Malawi Posts and
Telecommunications Corporation (MPTC), was a statutory corporation
and was governed by an Act of Parliament. In June 2000, MPTC was
split into two entities. There was the Malawi Posts Corporation
and
the Malawi Telecommunications Limited (MTL). Employees were requested
to join either of the two. The Applicant said that he opted
to join
MPC. Although MPTC was split into two, the trade union did not. It
continued to exist as one. The trade union was thus serving
the
interest of employees both at MPC and MTL. The Applicant remained the
General Secretary of this trade union.

In January 2001, the
Union declared a trade dispute with Management of MPC. This dispute
was in relation to salary and other benefits.
By the 10^th
of January 2001, the dispute was successfully settled. It is the
evidence of the Applicant that a week after the dispute had been
successfully settled, the Director of Finance of MPC invited him. He
warned him that Management was under pressure to fire him from
work
because of his involvement in union activities. After this warning
the Applicant said that he was heavily scared. He then formally
lodged a complaint with the Ministry of Labour through the Regional
Labour Office (RLO) South. The RLO responded through a letter
marked
as App Ex 1. As General Secretary of MPTC Union, he was also heavily
involved with Union activities at MTL. He said that this
did not go
down well with Management at MTL and some correspondence ensued
between MPC and MTL. He tendered in evidence a letter
App Ex 2.

On the 18^th
of May 2001, Management of MPC invited union members at MPC to
discuss new Conditions of Service for MPC since at that time, they
were still using Conditions of Service for MPTC. Whilst discussing
these Conditions of Service, Management of MPC also introduced
the
subject of retrenchment which was pending in MPC. During the meeting,
a disagreement arose as regards some clauses on Conditions
of
Service. This was mainly in relation to the issue of introducing
one-month salary for each year of service instead of 3 months
salary
for each year of service as was the case in MPTC. Management of MPTC
promised that they would consult the Board and the Applicant
tendered
Ex No. 3 as evidence of this meeting.

On June 19^th
2001, MPC issued a circular on pending retrenchment which had been
discussed in passing during the May meeting. The circular is App
Ex
No. 4. The union then called for another meeting in order for the two
parties to discuss the contents of this circular. The union’s
concern was that how could retrenchment be implemented in the absence
of Conditions of Service in MPC? It was thereafter agreed that
the
matter be re-discussed at a different forum.

On the 27^th
of July 2001, MPC promoted the Applicant and transferred him to Mzuzu
to operate a computer centre. In order to comply with this
transfer
instruction, the Applicant was given a week to go and look for a
house and also see his new office. Thus between the 3^rd
and 8^th of August 2001, the Applicant was in the City of
Mzuzu looking for accommodation and also to set up an office there.
The Applicant
said whilst in Mzuzu, he discovered that a computer
section did not exist there. When he asked for the office, he was
told to go
to the GPO Stores Mzuzu. He went to the place and found
that there was none. The Applicant said that this frustrated him. He
further
told the Court that he could not find a house within the 7
days given to him. He thus requested the Human Resources Officer (N)
to
assist him find suitable accommodation and he returned to
Blantyre. A week after his return from Mzuzu, the Applicant said that
he
booked an appointment with the Chief Executive of MPC who is the
Postmaster General (PMG). He briefed the PMG about his findings
in
Mzuzu and the frustration he had.

The Applicant said
that a day after he had met the PMG, he was invited by the Deputy
Controller Human Resources. He was asked by this
officer as to why he
had not gone to Mzuzu since the PMG was enquiring from him. The
Applicant said that he expressed a very big
surprise because he had
just met the PMG the previous day and had briefed him about his
experience in Mzuzu. On the 29^th of September 2001, the
Deputy Controller Human Resources still insisted to know why he had
not gone to Mzuzu. Later on the Applicant
met the PMG to re-explain
the position about Mzuzu. The Postmaster General then ordered that he
should immediately report to the
Controller Information Technology
(CIT) at the head office. When he reported to the CIT, the Controller
expressed a very big surprise
about his promotion and assignment to
Mzuzu. He told him that he had no immediate plan to have a computer
department in Mzuzu. He
also advised him that the business plan was
not even there for Mzuzu and that the post for a computer operator in
Mzuzu could only
exist once the business plan was realized.

On the 1^st
of October 2001, whilst attending a workshop on trade unions, the
Deputy Controller Human Resources called him. He handed him a letter
and he discovered that it was a letter of retrenchment. In that
letter the PMG referred to the Conditions of Service for MPC which
Conditions were not yet in place. Immediately after the retrenchment
letter, the Applicant said that he enquired from both the Director
of
Administration and Finance as to what had caused his retrenchment.
But these two said that they had no knowledge. They both said
that
all they knew was that the PMG had received instructions to dismiss
him hence this retrenchment.

The Applicant told
the Court that at the time he was retrenched, Management of MTL and
the Union had entered a deadlock over pay.
MTL employees had declared
a strike and the strike had reached its eleventh day. He was thus
surprised to hear from the Director
of Administration who said that
the Applicant was to blame because Management had tried all it could
to shield him from the pressure.
The Director even told him that he
was actually supposed to be posted to Chitipa. He also told him that
had he travelled to Mzuzu,
he would not have met this fate.

The Union on the 3^rd
of October 2001 wrote MPC protesting about the retrenchment of the
Applicant. On the 22^nd
of October 2001, a meeting was held between the two parties and the
union wanted to know as to who had sanctioned the retrenchment
of the
Applicant since the Board for MPC was dissolved.

The second witness
was Mr. Dick Semani who was at the time working with MTL. He was a
member of the union to which the Applicant was
the Secretary General.
His evidence was that when the Respondents wrote a circular on
retrenchment, the union requested for discussions
with Management in
order to agree on the modalities of retrenchment. But before that was
done, Management retrenched the Applicant.
When the union enquired
during a meeting as to why they had retrenched the Applicant,
Management said that they had just been pushed
to retrench the
Applicant. Management further complained that the Applicant was
poking his nose in MTL affairs. The third and last
witness for the
Applicant side was Batwell Ulemero. His evidence is that he is the
president of this Malawi Posts and Telecommunications
Workers Union.
He also told the Court how the Applicant was retrenched and as to how
the Union had protested because no modalities
were followed. His
evidence was in general similar to that of the other witnesses.

All these three
witnesses told the Court that out of the 600 employees that were
supposed to be retrenched as per the circular letter
from Management
only the Applicant was retrenched. By the time this case came up for
hearing on the 25^th of March 2002, only the Applicant had
been retrenched. This they said was also evidence on its own that he
had been singled out due
to union activities.

The Respondent
called one witness. He is Mr. George Allan Kafukiza Khaki. He is the
Senior Human Resources Officer at MPC. The witness
told the Court
that after MPTC was split into two, MPC formulated its own Conditions
of Service. When the Applicant was retrenched
in 2001, he was
supposed to be paid partly on the old MPTC conditions and partly on
the new Conditions of Service for MPC which were
approved by the
Board of MPC. He told the Court that from 1^st of July
2001, MPC had its own Conditions of Service. The witness confirmed
that the Applicant was transferred to Mzuzu on promotion.
At that
time, the World Bank was assisting MPC to put in place an office for
computer. The witness said that whilst awaiting things
to be in place
in Mzuzu, the Applicant was attached to the IT office in Blantyre. It
is the evidence of this witness that the Applicant
was not at all
retrenched due to his union activities. He said that MPC had given
the Applicant a lot of support on union activities
and even assisted
him with credit facilities to attend a conference in Japan. The
witness further said that the retrenchment the
Applicant suffered was
an ongoing exercise. It was not targeting him. Due to financial
problems, MPC was doing it in phases and that
he was one of those who
got retrenched first.

What we have
narrated here is the evidence which we thought was relevant to the
case. There were lots of things said about which Conditions
were
applicable to the Applicant in relation to his retrenchment package.
We found such evidence to have been extremely unfocussed.
We say so
because the matters in issue before us concern the alleged
victimization of the Applicant by being put on retrenchment
and not
which Conditions of Service are applicable to the Applicant. If we
dwelt on the latter, then it would appear as if we had
already
decided that this retrenchment was justified and fair.

THE LAW

This matter falls
within the purview of the Malawi Constitution in particular Section
31 which deals with Labour issues. Section 31
(1) provides:-

"Every person shall have
the right to fair and safe labour practices and to fair
remuneration."

We shall be looking
at this provision more in our analysis that follows hereunder.

We have also looked
at the Labour Relations Act in particular Section 6 (1) (b) which
provides:-

"(1) No person shall, in
respect of any employee or any person seeking employment –

(b) dismiss or prejudice such
person because of trade union membership or participation in the
formation or the lawful activities
of a trade union."

The Court has also
addressed its mind towards Section 2 (2) of the Labour Relations Act
which provides:-

"This Act shall be
interpreted so as to give effect to the Constitution and the
obligations of any international treaty, including
any international
Labour Conventions entered into or ratified by Malawi."

It is this Section
that indeed enjoins us to widely consult Constitutional provisions
which deal with labour matters hence the citation
of Section 31. We
are again obliged by virtue of Section 2 (2) to give effect to
International Labour Standards of the ILO. There
are indeed several
ILO Conventions that Malawi has ratified which protect the rights of
employees at the work place in as far as
trade union activities are
concerned. These Conventions are:

(1) Convention No. 98 on the Right to
organise and Collective Bargaining (1949) ratified by Malawi on 22^nd
March 1965.

(2) Convention No. 87 on Freedom of
Association and Protection of the Right to Organize Convention, 1948
ratified by Malawi on the
19^th of November 2000.

The Labour Relations
Act further provides for remedies in Section 8 in the event of any
infringements of the rights provided for under
Section 6 of the Act.
This Section provides:-

"(1) Any complaint of
infringement of the rights or protection contained in this part may
be presented to the Industrial Relations
Court.

(2) Subject to Subsection (3),
the Industrial Relations Court shall make such order as it deems
necessary to secure compliance with
this part, including an order for
reinstatement of an employee, the restoration to him or her of any
benefit or advantage, and an
order for the payment of compensation.

(3) Where an employee is
dismissed contrary to Section 6, reinstatement will be ordered if so
requested by the employee, along with
any other remedy that the
Industrial Relations Court deems appropriate, unless reinstatement is
clearly not practicable."

As we have already
noted, the Applicant’s statement of claim has dwelt on the issue of
unjustified retrenchment due to his trade
union activities. He is
thus applying to this Court to hold in his favour that the
retrenchment meted on him is unfair and unjustified.

The Court will also
refer to the Employment Act in particular the provisions of Section
57 which says:-

"The employment of an
employee shall not be terminated by an employer unless there is a
valid reason for such termination connected
with the capacity or
conduct of the employee or based on the operational requirements of
the undertaking."

This Court also
places a lot of emphasis on the use of international labour standards
of the ILO which add international flavour to
its decisions where
domestic law has already adopted the principles of such convention.
One such Convention very relevant to the
provisions of Section 57 of
the Employment Act is Convention number 158 concerning Termination of
Employment at the Initiative of
the Employer. This Convention was
ratified by Malawi on the first of October 1986. This Convention
provides in Article 4 that:-

"The employment of a
worker shall not be terminated unless there is a valid reason for
such termination connected with the capacity
or conduct of the worker
or based on operational requirements of the undertaking,
establishment or service."

Article 13 further
provides for the procedure that has to be followed by the Employer
once retrenchment is contemplated. For the benefit
of our
jurisprudence, this Article says:-

"(1) When the employer
contemplates terminations for reasons of an economic, technological,
structural or similar nature, the
employer shall: 

(a) Provide the workers’
representatives concerned in good time with relevant information
including the reasons for the terminations
contemplated, the number
and categories of workers likely to be affected and the period over
which the terminations are intended
to be carried out;

(b) Give, in accordance with
National Law and Practice, the workers representatives concerned, an
opportunity for consultation on
measures to be taken to avert or to
minimize the terminations and measures to mitigate the adverse
effects of any terminations on
the workers concerned such as finding
alternative employment.

ANALYSIS

The Applicant
tendered in Court such evidence which he said was a sign that the
Respondents prejudiced him as a result of his participation
in trade
union activities. The Court has looked at the evidence. In analysing
the evidence on record, the Court has taken into account
that
victimization as a trade union activist by the employer may be done
in several ways. The employer may directly take such an
action which
would manifestly be seen to be victimization. In other instances, the
Court would look at circumstantial evidence which
leads to only one
conclusion that such action would be termed as victimization.

In the instant case,
the Applicant cited the experience he had with Mr. Mpaya the Director
of Finance who openly warned him that Management
was under pressure
to fire him because of his trade union activities. In order to
buttress this point, the Applicant said that he
officially lodged a
complaint with the Ministry of Labour and there is documentary
evidence to that effect. There was also evidence
from the other
witnesses that when the Union met Management of MPC on the
retrenchment of the Applicant, Management told them that
they were
also pushed to retrench the Applicant. Management further told them
that the Applicant was poking his nose in the affairs
of MTL.

The Court found that
this evidence was overwhelming against the Respondents. What however
struck the Court is the fact that the Respondents
did not controvert
this piece of testimony. The Applicant even mentioned some officials
by names and if what he was saying about
them was not true, one would
have expected those people to come in the open and contradict this
evidence. Thus the evidence on the
Applicant’s side went
unchallenged. The Respondents of course invited Mr. Khaki the Senior
Human Resource Officer. It was however
very clear when Mr. Khaki was
cross-examined that he was ignorant of most of the issues when it
came to matters in issue here. We
found that Mr. Khaki was more
comfortable when it came to explaining the Conditions of Service.
Unfortunately, the bone of contention
was not the Conditions of
Service; it was on the alleged victimization of the Applicant by the
Respondents due to trade union activities.

The Court has also
looked at the events after the Applicant’s promotion. The Applicant
was promoted and immediately posted to Mzuzu.
We find nothing wrong
in promoting an employee. After all, each and every employee expects
promotion. But it’s the circumstances
that surround this promotion
which have made this Court to raise eyebrows. When the Applicant went
to Mzuzu, there was no office,
no equipment and there was completely
nothing. When he came back to Blantyre, the officer in charge of the
Computer Department who
is the Director of Information Technology
told him that he had no plans to open a computer department in Mzuzu
and that the business
plan was not even realized about Mzuzu. This
was a very serious allegation against the Respondent. If the
Applicant was manufacturing
evidence, certainly the Director of
Information Technology could have come to controvert the evidence.
This was not done at all.
Mr. Khaki did admit during
cross-examination that up to now, there were no computers in Mzuzu.
He only indicated that the World Bank
had now procured some
computers. We therefore found that the action taken by the
Respondents to promote an employee and send that
employee to a duty
station where there is no structure for his position, where there is
no office and no equipment for his trade
was a deliberate act to
punish the employee. This is also an act of unfair labour practice.

The Respondents
tried to rely on the contents of the letter App Ex No.2 which was
response to the letter written by MTL to MPC on
the alleged
interference of MPC employees in MTL activities. They said that in
that letter, they had categorically denied that MPC
employees were
interfering with the activities of MTL only that some MPC employees
were still executive members of MPC union and
that when they went to
MTL, they went there in their capacity as union members. The
Respondents therefore argued that if they wanted
to victimize the
Applicant because of trade union activities, there is no way they
could have defended the union members from MPC
in that letter. Much
as the Respondents wanted to blow the trumpet using this letter; we
found that the contents of this letter should
not be blown out of
proportion. The letter speaks of the factual situation that was on
the ground. The MPC employees who were executive
members of MPT
workers union were indeed going to MTL in their capacity as union
members. Thus the Respondent cannot say that they
defended the
employees of MPC who were union members. This is just how things were
and the Respondents were just narrating the situation
on the ground.
Even if we were to accept the Respondents’ point of view here, the
evidence on record is so overwhelming against
the Respondents that it
outweighs the contents of this letter. Moreover this same letter is
further testimony that there was talk
at top Management level on the
activities of union members.

Putting that aside,
the Court has also looked at the way this retrenchment was effected.
The Respondents had indicated in their circular
that they would
retrench 600 employees. The circular further said that the modalities
for undertaking the retrenchment exercise were
being worked out and
will be discussed with the MPT workers union. There was
uncontroverted evidence from the Applicant plus his
witnesses that
there were no further discussions on the modalities of the
retrenchments which would affect 600 people. The Respondents’
witness Mr. Khaki did not say anything meaningful on this. As we have
already pointed out earlier, the law requires fairness in matters
of
this nature. This Court has on times without numbers stressed that it
is not sufficient for an employee to allege a need to retrench.
This
Court will need the actual reason for the decision in order to
establish whether it is a legitimate exercise of management
prerogative.
In this particular case, there is already unchallenged
evidence that top Management officers were not in the know how as to
what
led to his retrenchment apart from the fact that there was
pressure from above due to the Applicant’s involvement in union
activities.

More controversy in
retrenchment has however surrounded the requirement of procedural
fairness in the event of retrenchment. The procedural
fairness is
very crucial when the employer is deciding to implement retrenchment.
The law, as well as international labour standards
of the ILO,
expects that the employer will consult the employee or the employee’s
representative (trade union). Thus implementation
involves the
establishment of criteria for the selection of employees to be
retrenched. Where no such criteria are contained in a
recognition
agreement the employer is enjoined to apply fair criteria, the
principal requirement being that the selection process
should not be
arbitrary or at the employer’s whim. The need to consult is also
necessary because before implementing retrenchment,
there is need for
suggestions on alternatives. Failure to consult by the employer will
amount to unfair labour practice.

The facts in this
case speak for themselves. There was no such consultation. Thus the
criteria for selecting the Applicant out of
the alleged 600 employees
can have no any other explanation but that he was targeted as a
result of trade union activities. Mr. Khaki
told this Court that the
Applicant was indeed retrenched alone out of 600 employees on the
cards because of financial reasons. He
said that the Respondents had
to retrench in phases. We however found Mr. Khaki’s reason rather
comical and unconvincing. The Applicant
was retrenched on 1^st
October 2001. By the 25^th of March 2002 when the matter
herein was heard, he was the only one who had been retrenched. There
was of course some talk that some
other people had now received
letters dated the 23^rd of March 2002. We found that the
Respondents had really targeted the Applicant. Why were they very
interested to find money only
for one person out of the 600 people,
yet this was an employee whom they had just promoted. If indeed there
were letters recently
issued to other employees, we sincerely believe
that those letters were triggered by the events in this case. The
Respondents went
on a panicking stampede after having realized that
they were in a mess.

This Court has
looked at the submissions made by Counsel for the Respondents. With
due respect to Counsel, we found that these submissions
are rather
irrelevant to the matter in issue. Counsel dwelt at length on the
issue of the Applicant not being employed for life.
Counsel also
dwelt much on the Conditions of Service that were applicable to the
Applicant such as severance pay. But there is nowhere
in these
submissions where Counsel had even come close to look at the relevant
Law that is applicable in a labour dispute of this
species. The
relevant law is that which we have cited from the Labour Relations
Act as well as citation of the ILO Convention. Counsel
of course
referred to High Court decisions in the cases of MALAWI
SAVINGS BANK LTD. –VS-BONNY KALOMBOLA Civil Cause
No. 1394 of 1997 (Unreported) and M.M.
KAMBUWA –VS- MALAWI INSTITUTE OF MANAGEMENT Civil
Cause No. 1240 of 1996 (Unreported) where Hon. Justice
Ndovi as he then was quoted with approval Justice Kalaile (JA) in the
case of P.T.K. Nyasulu case (MSCA
Civil Appeal No. 23 of 1998). We developed very keen interest
in these cases. But a postmortem of these cases will clearly show
that the matters in issue were
totally different. In all these cases,
there was no dispute on victimization of an employee because of trade
union activities. In
all these cases, the Court were not invited to
look at the Labour Relations Act. This dispute before us does emanate
from the Legal
foundation in this Act. We have therefore excellently
distinguished these cases from the case at hand and in as far as this
matter
is concerned, this Court cannot be bound by these decisions,
then there is no need for the existence of the Labour Relations Act,
the Employment Act and the ILO Conventions if we are to borrow the
reasoning in these cases cited by Counsel. The approach in some
of
the cases cited was purely common law approach.

FINDINGS

After having given
this case the best of its scrutiny, we found that there was indeed
overwhelming evidence both direct as well as
circumstantial that the
Applicant’s retrenchment was accelerated as a result of his active
participation in trade union activities
which is a fragrant violation
of Section 6 of the Labour Relations Act. This also does contravene
Convention Number 98 on the right
to Organise and Collective
Bargaining in particular Article 1 (1) (2) which provides:-

"Workers shall enjoy
adequate protection against acts of anti-union discrimination in
respect of their employment. Such protection
shall apply more
particularly in respect of acts calculated to-

(a) Make the employment of
workers subject to the condition that he shall not join a union or
shall relinquish trade union membership;

(b) Cause the dismissal of or
otherwise prejudice a worker by reason of Union Membership or because
of participation in union activities
outside working hours or; with
the consent of the employer, within working hours."

The above Convention
is very fundamental when it comes to anti-union discrimination. This
Convention was also cited by this Court
in the case of KEN
WILLIAMS MHANGO –VS- MOUNT SOCHE HOTEL(Tourism
Development Company) Ltd. IRC Matter No. 2 of 1999
(Unreported) decided on the 8^th of December 1999 at Limbe.
We find that the Applicant here had his employment terminated through
retrenchment as a result of anti-union
discrimination by the
Respondents.

We further found
that this retrenchment, even if it would have been declared normal,
was done in a very unprocedural way. Employers
should know that
although they have the prerogative to retrench, but fair labour
practice requires that proper procedures have to
be followed before
retrenchments are implemented.

The Applicant had
applied for a relief of reinstatement. We found that the most
suitable remedy in this case is indeed reinstatement,
which this
Court has the power to order under Section 8 of the Labour Relations
Act. We therefore order that the Applicant should
be reinstated to
his position before retrenchment and that any benefits that were
withheld such as salary etc. should be paid to
him The Registrar of
the Industrial Relations Court to ascertain these benefits.

We further order
that since the Applicant had been promoted and posted to Mzuzu where
there was no structure in place, the Respondents
should attach him to
an office which deals with computers. Preferably at the office of the
Director of Information Technology in
Blantyre where he was before he
met this unjustified retrenchment.

DELIVERED this
--------- day of May 2002 at Blantyre/Limbe.

Signed:…………………………………………………………….

M.C.C. Mkandawire,
Chairman

Signed:……………………………………………………….……

Mrs. Ching’oma
(Member Panelist)

Signed:……………………………………………….……………

Mr. Nindi (Member
Panelist)