IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE
REGISTRY

MATTER NO. 6 OF
2000

BETWEEN:

DAVISON
TCHETE………………..……………………….APPLICANT

-and-

SAFEGUARD
SERVICES……………………………..RESPONDENT

CORAM: HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant presented
(unrepresented)

Mr. C. Salima –
Respondent’s Representative

Mr. Lora – Official
Interpreter

J U D G M E N T

This matter is brought
by Davison Tchete the applicant. It is brought against Safeguard
Services the Respondent. In his Statement
of Claim, the Applicant has
raised a trade dispute of dismissal. He is accordingly praying to
this Court that he be awarded money
for the outstanding 4 years
service from 1985-89, 5 days unpaid annual leave and reference letter
from 1985 to 1989.

The Respondent has
filed in a defence. In their defence, the Respondent say that the
Applicant after termination of service was paid
his long service
award from 1989 to 1999. As for the period from 1985 to 1989, the
Applicant was under the employment of Mr. Bowler
who later on sold
Safeguard Services to Mr. Busilley. All those who were employed under
the Management of Mr. Bowler got their dues
from 1985-89 respectively
including the Applicant.

The Applicant gave
evidence first. He told the Court that he got employed by Safe Guard
Services in 1985 as a security guard. He performed
very well and he
rose through the ranks up to the rank of Senior Operations Officer.
Sometime in July, 1999, he fell sick. He went
to Paula Private Clinic
within Blantyre where he was treated and put on 3 days sick leave. He
tendered the medical report as App
Ex No. 3. He sent a message
through his wife to inform the authorities at his place of work about
this sickness and everything was
well recorded in the occurrence
book. As he was home sick, he got a message that his sister was very
sick in Zomba. Later on, his
father followed him to Blantyre with a
sad message that his sister had died. He again sent word to his place
of work through the
father about the death of his sister. Although he
had not fully recovered, he went to attend the funeral of his dear
sister. When
he came back from the funeral, he decided to report for
work although he had not fully recovered. To his amazement, on day
one of
reporting, he was even barred from attending a meeting at his
place of work. Later on, he was served with a letter of termination
of services which he tendered as App Ex 1. He was later on paid
severance allowance from 1989 to 1999 i.e. 10 years. He tried to
argue for the period from 1985-89. But he was told that for that
period, the company was under Mr. Bowler and since he had sold it
to
Mr. Bussilley, new management under Mr. Bussilley was not responsible
for the payment for the period between 1985-89.

The Applicant
insisted that he was not aware of sell of the company to Mr.
Bussilley as well as change of management. He was informed
only at
the time when he was pursuing this payment from the Respondent.

The Applicant
further referred to the reference letter which was later on given to
him. He said that the reference letter refers to
the period from 1985
to 1999 as being the period of employment by the Respondent. He said
that the reference letter does confirm
that he had been employed from
1985 and not 1989. If he were employed in 1989, the Respondent would
have given a reference to that
effect.

The Respondent gave
evidence through Mr. Charles Salima the Personnel and Administrative
Manager. Mr. Salima explained that the Respondent’s
company having
been bought by Mr. Bussilley in 1989, all the employees were made
ware of this development. There was an agreement
between Mr. Bowler
the previous owner and Mr. Bussilley the current owner that Mr.
Bowler would settle all the liabilities with the
former employees
from 1985 to 1989. That, Mr. Bowler did. Thus Mr. Salima said that
for the 10 years from 1989-99, the Applicant
was paid. As for the
period between 1985-89, it is Mr. Bowler’s responsibility.

The two parties were
involved in a lengthy cross-examination by each side. The Applicant
insisted that he was not aware of the sale
of the Company to Mr.
Busilley. He thus requested the Respondent representative if he could
produce evidence that the former employees
were paid for the period
between 1985-89. He also wanted evidence from the Respondent if they
could produce letters of re-appointments
in 1989 if at all the period
between 1985-89 was a closed chapter.

Finally, the
Applicant wanted evidence that the Company was sold and what
agreement was there between old and new management.

Before I do delve
into these issues, I have an observation to make here in relation to
the way the Applicant lost his job. There is
unchallenged evidence
from the Applicant that he was absent from work due to sickness. The
medical report tendered in Court is not
at all controverted by the
Respondent. There is again unchallenged evidence from the Applicant
that news about his sickness was communicated
to the Respondent.
There is again unchallenged testimony that the Applicant whilst sick
lost a sister. He had to attend the burial
at all cost. A message was
again sent to his office about this sad news. Mr. Salima for the
Respondent did not at all challenge anything
on these fundamental
points. The Court therefore finds the action taken by the Respondent
to have been extremely unfair. The Applicant
had a valid reason as to
why he could not report for work. If one is put on bed rest due to
sickness, that is an automatic justification
for absenting oneself
from work. The death of the sister just followed the main event. The
course of action the Respondent took was
again extremely unfair. When
the Applicant reported for work, he was not at all afforded an
opportunity to be heard before being
condemned. He was instantly
served with a letter of termination without finding out from him as
to what had happened.

This matter arose in
July 1999 before the Employment Act, 2000 came into force which Act
has stipulated the procedure that an employer
has to follow before
termination of employment. But although such is the case, this Court
which stresses more on equity (fairness)
than legalism has now and
again invoked Section 31 of the Republic Constitution which says:-

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

The term fair labour
practices is indeed interpreted widely. This Court has now and again
sought the aid of International Labour Convention
of the ILO in
trying to understand what fair labour practice is. More to that,
Malawi has ratified a lot of ILO Conventions of which
one is
Convention 158 on termination of employment. This Convention which
has been applicable to Malawi since around 1985 stipulates
in Article
4 as follows:-

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

This ILO Convention
has thus been time and again used to assist in interpreting what fair
labour practice requires. Certainly it requires
that there be a valid
reason before an employer can terminate services of an employer.
There was no valid reason here because the
Applicant was sick. Had he
been asked by the employer, he could have produced such evidence
which he has today produced in Court.

The other limb to
this Convention is Article 7 which deals with the procedure prior to
or at the time of termination. This article
provides:-

"The employment of a
worker shall not be terminated for reasons related to the worker’s
conduct or performance before he is
provided an opportunity to defend
himself against the allegations made, unless the employer cannot
reasonably be expected to provide
this opportunity."

This article is very
clear and loud. The Applicant herein was not at all given any
opportunity to be heard. All he got was a khaki
envelope which had a
letter of termination. This type of practice is very unfair.

In the case of
CHARLES MPONDA THUKUWA –VS- BLUEBIRD MOTEL LIMITED,
IRC Matter No. 28 of 1999 decided by the Industrial Relations
Court at Blantyre-Limbe on the 25^th of September 2001,
this Court made a similar observation. On page of the judgment, the
Court said:

"To put it in a nutshell,
therefore, the applicant was fired without any reasons being given to
him. Apart from that, the applicant
was fired orally without any
chance being given to him to defend himself."

I therefore find
that the Respondent herein were in fragrant violation of the Labour
rights of the applicant as enshrined in Section
31 of the Republic
Convention echoed in the International Labour Standards of the ILO.

The Respondents were
given 14 days to produce evidence that the Applicant was re-employed
in 1989 that the Applicant was paid his
dues for the period between
1985-89 and the take over agreement between old and new management. I
am afraid to say that this has
not been honoured. The documents are
not forthcoming. The Court therefore concluded that failure to
produce the said documents or
evidence is clear testimony that they
have none.

I therefore found
that the Applicant was not at all paid his long service benefits for
the period of 4 years from 1985-89. I thus
order that the Respondent
immediately pay him these benefits based on the calculations they
used from 1989-1999. I also order that
he be paid for the 5 days
unpaid annual leave. As for the reference letter, I do find that he
was given one after the commencement
of this case. Thus there is no
need to make an order on this point.

I have observed with
deep concern that the Respondents greatly violated the labour rights
of the Applicant. This has already been
explained in the judgment.
This Court is putting it on record that employers should be made to
understand that gone are the days
when an employer would dismiss an
employee without affording an employee the chance to be heard. The
dismissal should also be accompanied
with valid reasons. Certainly,
there was no justification here to terminate the services of the
Applicant. This was totally unfair
termination. In such
circumstances, this Court which stresses more on equity has readily
awarded compensation to the Applicant. I
therefore do award such
compensation which would amount to three months salary for the unfair
termination. The money to be paid immediately.
The Registrar of the
Industrial Relations Court to immediately assess the amount of money
for the period between 1985-89. He should
do this in consultations
with the Respondents.

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

M.C.C. Mkandawire

HON. CHAIRMAN