IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE
REGISTRY

MATTER NO. 10
OF 2001

BETWEEN:

JOHN SMITH
KACHULE…………..…………………….APPLICANT

-and-

DMARC………………………………………...………..RESPONDENT

CORAM: 

HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant – Present
(unrepresented)

Respondent –
Present (Represented by Counsel Limbe)

David Mpakani –
Official Interpreter

J U D G M E N T

Matters in
Issue: Unfair termination of employment.

BACKGROUND

The Applicant Mr.
John Smith Kachule brought this matter against the Respondents on a
trade dispute of unfair termination of employment.
He says that his
services were terminated without any reasons being given. He thus
applies to the Court for an order that he should
be given his
gratuity. The Respondents have denied the allegations made. They
replied that the Applicant’s services were terminated
because the
Applicant performed his duties negligently and inefficiently or in
the alternative, that the Applicant was involved in
fraudulent
malpractice causing loss to the Corporation.

SURVEY OF
EVIDENCE

The Applicant was
employed by the Respondent on the 1^st of February 1966. He
started as a depot cashier and rose through the ranks up to the
position of Area Market Supervisor (AMS). By
the time the employment
was terminated, he had worked for 31 years. The Applicant told the
Court that in February 1998, he got a
letter from the Respondents
that he had performed his duties very well. The Respondents even
added two notches on his salary. He
tendered the letter as App Ex 1.
Four months after receiving this letter, he got another letter which
was a letter of termination
of his services. He tendered the letter
as App Ex 2. By the time his services were terminated, he had 5 years
to retire. It is his
evidence that this letter of termination did not
at all disclose any reasons for terminating his employment. The
Applicant said that
he was heavily shocked and he even developed
hypertension. Eventually, he was hospitalized in Salima and developed
a stroke. He even
tendered the medical report as App Ex No.3.

It is the evidence
of the Applicant that up to now, he does not know the wrong that he
did. He was not even afforded an opportunity
to be heard before his
employment was terminated.

For the Respondents,
Mr. Charles Andrew Ntchembe the Regional Human Resources Officer gave
evidence. He said that the Applicant in
the year 1996 was Area Market
Supervisor at Mayaka market in Zomba. Whilst there, he gave K46,000
to the Market Officer at Matiya
market. This money was given in July
1996. There was no proper transaction in relation to the issuance of
this money. In December
1996, auditors from the Head Office were on a
routine audit tour. They are the ones who discovered that the K46,000
given to the
Market Office at Matiya market had no proper records.
The two officers were called in the office to explain about the
K46,000 in
relation to the records. There was a discussion in the
office at Mayaka but it would appear that the two were pushing the
burden
to each other. The auditors referred the matter to Management.
As a result of this, the Respondents had lost trust in the Applicant
hence the termination of his employment through Ex.2. The
Respondent’s witness said that the Applicant had breached Condition
16
(a) (b) of the Conditions of Service and that the Respondents as
per the Conditions of Service in place had no duty to inform him
of
the reasons for such termination.

THE LAW

In relation to this
dispute, the Court shall look at Section 31 (1) of the Constitution
which says:-

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

The Court will also
address its mind towards Section 43 of the Constitution which deals
with administrative justice. This Section
provides:-

"Every
person shall have the right to:-

(a) Lawful and procedurally
fair administrative action, which is justifiable in relation to
reasons given where his or her rights,
freedoms, legitimate
expectations or interests are affected or threatened; and

(b) Be furnished with reasons
in writing for administrative action where his or her rights,
freedoms, legitimate expectations or interests
if those interests are
known."

In trying to
interpret what is fair labour practice, the Court will look for
guidance in the International Labour Standards of the
ILO which are
applicable to Malawi having been ratified by Malawi. Such relevant
Convention is Convention No. 158 on the Termination
of Employment.
This Convention was ratified by Malawi on the 22^nd of
March 1965. ILO Conventions are very helpful to assist in
interpreting domestic legislation such as the Constitution and they
also act as quasi source of law especially where domestic law is
silent. In the instant case, the termination of employment took
place
in 1998 before the Employment Act 2000 was effective. The previous
Employment Act was rather very ambiguous when it came to
dealing with
such issues.

ANALYSIS

It is clear from the
evidence on record that the Applicant’s employment was terminated
without any reasons being given. This violated
the spirit of Section
43 of the Constitution which deals with administrative justice. The
Respondents are a public entity. They are
a child of an Act of
Parliament. Thus in any administrative decision that they make, they
have to comply with the requirements of
the Constitution. Section 43
of the Constitution has laid down the standard that is required to be
followed once an administrative
decision is to be made. The party
affected is supposed to be subjected to lawful and fair
administrative action. The party affected
has to be furnished with
reasons for any administrative action that is taken.

The Court also
observed that the Respondents did not provide the Applicant with an
opportunity to be heard. Section 43 has again built
in rules of
natural justice one of which is that a person should not be condemned
unheard. The evidence from the Respondents is that
auditors on
routine tour found an anomaly. They of course called both the
Applicant and the Market Officer. But I am afraid to say
that the
witness from the Respondents’ side was not even present when these
auditors were interviewing the two officers. He could
therefore not
elaborate on that. The alleged report that these auditors had
forwarded to Management was not even made available so
that the Court
should analyse it. The Court found that the interview which the
auditors had at Mayaka office was not a hearing which
is envisaged in
Section 43 of the Constitution. That was just for purposes of
establishing whether there was a shortage or not and
who was the
alleged culprit. Thereafter, Management was supposed to formally
charge the Applicant with the alleged misconduct as
put in Clause 16
(a) (b) of the Conditions of Service and give the Applicant an
opportunity to defend himself against the allegation
made. When we
talk of a chance to be heard, it should really be an effective chance
given to the person.

In the cases of
Wistood W. Soko –vs- ADMARC and
Nathan O. Banda –vs-ADMARC IRC Matters
No. 110 and 111 of 2001 decided at Mzuzu Industrial
Relations Court on the 20^th of July 2001, this Court
looked at a similar question whether the Applicants were heard. The
Court found that after anomalies were
discovered by the Regional
Grading Manager in Mzuzu, the Respondents ADMARC instituted a
commission of enquiry. This commission of
enquiry went all the way to
Mzuzu. It invited the Applicants concerned. The Applicants were
formally confronted with the allegations
and they were asked to give
their side of the story. They did that and the commission of enquiry
made its recommendations to Management
whereby the Applicants
employment were terminated. The Court also observed that the
Respondents had furnished the Applicants with
reasons why their
employment were terminated. Such was not the case in this instant
case. It is the Court’s analysis therefore
that the Respondents did
not comply with both the Constitutional provisions (Section 31) which
deals with fair labour practice and
(Section 43) which deals with
administrative justice. The Court’s analysis also openly diagnoses
that Convention 158 was not complied
with. This Convention
specifically provides standards for fair labour practice when it
comes to termination of employment. For the
avoidance of doubt, the
Convention provides:-

"Article 4 – 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 the operational requirements of the
undertaking, establishment or service.

Article 7 – 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."

FINDING

The Court finds that
this termination was unfair both in substance and procedure. In
substance because no reason was given. In procedure
because the
Applicant was condemned unheard.

There was thus a
total violation of the Applicant’s rights. The Court has looked at
the remedy that the Applicant was looking for.
It is the remedy that
he should be paid his gratuity. The Court has looked at Section 46
(2) (a) and (3) (4) of the Constitution
which gives the Court wide
powers where there has been a violation of the rights of a person.
After having given this matter the
best of its scrutiny, the Court
finds that this matter deserves an order of reinstatement. But the
Applicant said he had only 5 years
to go before retirement. The
matter herein arose in 1998. Close to 5 years have now elapsed and
the Court would order that the Applicant’s
services should be
deemed to have been uninterrupted. He is now in a pathetic situation
that he cannot even complete the few months
remaining before
retirement. All this poor health has been accelerated by the
Respondents perpetration of injustice on him. The Applicant
should
thus be immediately retired and all his benefits should be paid to
him calculated on the prevalent conditions in the Respondents
conditions of service.

DELIVERED this
---------- day of May 2002 at Lilongwe Industrial Relations Court.

M.C.C. Mkandawire

HON. CHAIRMAN