IN THE INDUSTRIAL
RELATIONS COURT OF MALAWI

 PRINCIPAL
REGISTRY

MATTER NUMBER 10
OF 2000

BETWEEN:

KEITH
BANDA          APPLICANT

AND

BIBLE SOCIETY OF
MALAWI       RESPONDENT

CORAM:  

R. ZIBELU BANDA
(Ms.) Deputy Chairperson

Applicant

Byson Nakutho for
Respondent

Ngalauka Court Clerk

JUDGMENT

 Justification
for dismissal; opportunity to defend oneself; employee’s
contribution to dismissal.

 FACTS

The
applicant instituted these proceedings through IRC FORM 1 issued on
12 January 2000. He contends that the respondents who were
his
employers unlawfully dismissed him.

The issue of
employment was not in contention as it was agreed that the applicant
was employed on 1 January 1997 as Faith Comes By
Hearing  (FCBH)
Promoter.

The
applicant was in the service of the respondents discharging his
duties till December 1999 when his services were terminated by
letter
of that date.

The
applicant believes that his termination of services was unlawful as
he had a right to bargain with management for better salary
according
to the Labour Relations Act 1996; he was justified in asking for a
raise in salary because his net pay of K371.00 from
K7, 300.00 was
contrary to the Employment Act; he felt he was used as an example to
others to intimidate them and prevent them from
bargaining for better
conditions of service; he was never issued with any warning letter
throughout his service with the respondents
and that he was not given
opportunity to be heard before the dismissal.

 The
grounds for dismissal were insubordination, which according to the
respondent warranted summary dismissal. The insubordination
was as a
result of tone of the applicant’s communication in a letter of 26
November 1999 to Mr. Nakutho the Executive Director
in the
respondent’s establishment; and for lies and half-truths told by
the applicant; poor work performance and bad attitude towards
work;
and failure to agree on salary issues with management.

THE LAW

This was a
written contract and conditions of service were expressed in a
document called Revised Conditions of Service which document
was relied upon by both parties as exhibit 13 and 22.

Condition 9
deals with termination of employment and it says:

“The
employment of permanent staff may be terminated by either party by
giving: -

In the
case of management and middle management, three months notice in
writing or payment of three months salary in lieu of notice”

 Although
the tone of the letter of termination of employment expressed summary
dismissal this was not carried out as the letter suggests.
The court
will therefore deal with the issue of termination of employment as
provided in the conditions of service and the Employment
Act 2000
(hereinafter referred to as the Act).

The Act
states that:

“ A
contract of employment for unspecified period of time (as it was in
this case) may be terminated by either party… upon giving
the other
party minimum period of notice in writing. In lieu of providing
notice of termination, the employer shall pay the employee
a sum
equal to the remuneration that would have been received and confer on
the employee all other benefits due to the employee up
to the
expiration of the required period of notice” (sections 28, 29 and
30 of said Act)

The
respondents had complied with their conditions of service and the Act
only to a certain extent as quoted above respectively. The
applicant
was paid the equivalent of three months salary in lieu of notice, he
was also paid for any leave days not taken. However,
he stated that
he was not paid all other benefits due to him.

Condition 9,
provides for three months period of notice or three months salary in
lieu of notice. This was done. However, the Act
goes further than
that as per quotation above. The applicant should have received other
benefits due to him and these will be looked
into during assessment
of damages.

The second
element that needs to be looked into is whether rules of
natural justice were applied before the termination. Natural
justice requires that:

·       
The employee
should know the nature of the complaint made against him/her (valid
reasons must be given for the termination);

·       
He/she should have an opportunity to state his/her case (the
right to be heard; defend oneself)

·       
The employer should act in good faith.

The first two requirements
above are also enshrined in Convention No. 158, concerning
Termination of Employment at the Initiative of the Employer,
especially articles 4 and 7 respectively.

The Act in
section 57 (1) and (2) has similar provisions worded as follows;

Section 57
(1) “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.”

Section
57(2) “The employment of an employee shall not be terminated
for reasons connected with his capacity or conduct before the
employee is provided
an opportunity to defend himself against the
allegations made, unless the employer cannot reasonably be expected
to provide the opportunity.”

The evidence
on record is that the applicant was invited by the Executive Director
in the presence of another person to witness the
termination of
employment. At this meeting the applicant was informed that his
services were terminated. The applicant was neither
accorded the
opportunity to defend himself nor was he given the opportunity to
appeal against the decision to terminate his employment.
Instead he
got a letter from chairman of the board confirming his termination.

This was a
violation of the Act. In the old days it was possible to terminate
the employment of an employee without giving him the
opportunity to
defend himself. It was also possible and legal to terminate the
services of an employee without giving him/her reasons
for the
termination. The prevailing law both locally and internationally
under the International Labour Organisation (ILO) Standards,
demand
that before an employee’s services are terminated, s/he must be
furnished with valid reasons and be accorded the opportunity
to
defend her/himself.

The
respondent did not show why he could not reasonably have accorded the
applicant the opportunity to defend himself. It is therefore
presumed
and concluded that the respondent failed deliberately to allow the
applicant to defend himself after the allegations leveled
against
him.

These
allegations were that he was insubordinate, he was incompetent, and
he failed to discharge his duties satisfactorily and that
he
disagreed with management on issues of salary increment. The
allegations in substance, point to conduct and capacity of the
applicant
as such the respondent was compelled by law to apply
section 57 of the Act, which deals with justification for
dismissal.

A dismissal
is unfair where; an employer violates section 57 of the Act. (See
section 58 of the said Act.) The applicant was not given
an
opportunity to defend himself when his employment was terminated.

FINDING

This court
finds that the applicant was unfairly dismissed because the
respondent violated section 57(2) of the Act.

REMEDIES

The
applicant initially sought reinstatement with full compensation and
other remedies. During hearing the applicant amended particulars
of
his relief and stated that he wished to be compensated in form of
loss of salary, housing allowance, transport allowance, medical
support, education fund, pension fund, severance pay, bonus, water
allowance, education loan, electricity allowance, leave days,
lunch
allowance and loss of economic rights. He further claimed damages for
shame and embarrassment suffered due to the unfair dismissal.

The Act
gives this court power to order relief and each case is decided on
its own merits depending on the nature of the contract
of employment
and the circumstances of the case. In deciding which remedy to grant,
the court shall first consider an order for reinstatement.

1.     
Reinstatement

It came out
clear during proceedings that the respondent would not take back the
applicant under any circumstances. This position
was made so clear
that the applicant did not dwell on that relief. Instead he
substituted it with the list that has been enunciated
above.

In reality
reinstatement and/or re-engagement are seldom used. This is
presumably because industrial realities often militate against
reinstatement. An employer cannot be forced to take an employee back
on even if reinstatement was ordered. Similarly, an employee
cannot
be forced back to work with an employer.

It has been
established elsewhere that reinstatement is normally not practical
especially where:

• Re-instatement
  would provide serious industrial strife or cause profound disruption
  within a very small business or organisation;
  
  

  
  

• The
  individual to be reinstated is a senior employee in the
  establishment as compared to a general duties unskilled worker.
  

  
  

 It was
submitted and observed during hearing that the respondent’s
organization operated as a family unit because members were so
close
to each other. The applicant was not a general worker in the
organization but held a post at Middle Management level as per
memorandum of November 11, 1998 from the Executive Director to the
applicant.

The test is
whether reinstatement is practicable, not just whether it is
expedient. In anticipation of this possible dilemma section
6 as read
with section 8 of the Labour Relations Act 1996 provides that
reinstatement will be ordered, “Unless it is clearly not
practicable.”

In addition
section 63 (2) of the Employment Act 2000 states that,

 “…In
deciding which remedy to award, first consider the possibility of
making an award of reinstatement or engagement taking into account
in
particular the wishes of the employee and the circumstances in which
the dismissal took place, including the extent, if any to
which the
employee caused or contributed to the dismissal.”

These
factors suggest that reinstatement though should be the first remedy
to be considered in these cases, it must be practical.

The
circumstances, which led to the termination of services, were
presented in detail to this court. It was evident that the applicant
contributed to a large extent to his fate.

The
applicant was engaged in negotiations with management on salary raise
and other conditions of service. He was a member of a select
committee to bargain on behalf of fellow employees. The procedure for
the bargain was that the committee would arrange to meet with
members
of management and discuss. Eventually all other members of the
employees’ committee except the applicant reached an agreement
with
management. The applicant continued to negotiate with management to
advance his own grievance. The grievance was that his net
pay of
K371.00 out of a gross salary of K7, 300.00 was unfair. The reason
for this state of affairs was that the applicant was staying
in a
rented house whose rent was beyond his housing allowance of 80% of
his salary. Therefore a huge deduction was made on his salary
to
cover for the shortfall in rent. The Executive Director wrote to the
applicant raising his concerns on this issue in a letter
dated
November 26, 1999.  The deduction was therefore made with full
knowledge of the applicant.

It is not up
to this court to say whether the net pay was reasonable or not
because that is a term of contract which an employee and
employer
agree upon on the signing of contract of employment. This court could
interfere if the gross salary was below the statutory
minimum rate.

The
applicant suggested to this court that he had a right under the
Labour Relations Act 1996, to bargain for better salary. This
is
true, however, one of the principles of collective bargaining is
stipulated in section 31 of the Labour Relations Act 1996 as
follows:
-

“All
parties to the negotiation of a collective agreement shall bargain in
good faith and make every reasonable effort to conclude
a collective
agreement”.

The view of
this court is that the applicant was not bargaining in good faith and
to that extent he contributed to the escalating
conflict between
himself and the respondent.

Further, it
was submitted and noted during hearing that the applicant had sent
communication to South Africa alerting the Regional
Secretary of the
Society about problems at his work place. The letter of December 17,
1999 from the applicant to Mr. Nkolesha and
copied to Board Chairman,
Executive Committee Chairman, Honorary Treasurer, Media Consultant
(Africa) and Program Consultant (R&C)
is of particular interest.
The letter is reproduced below to show how the applicant took
concerted efforts to discredit the respondent
and bring the
organization or its officers into disrepute.

SUBJECT:
STAFF ARE LOSING JOBS AFTER YOU ASKED THEM ABOUT THEIR PROBLEMS IN
THE BIBLE SOCIETY OF MALAWI.

With
reference to your visit in September, 1999 to the Bible Society of
Malawi where you had among other things identified 39 problems
staff
meet in course of their employment, I am sad to inform you that the
Executive Director has resolved to discharge employees. This
is a confirmation of what we told you.

As I
am sending you this fax now, I have been told to leave employment of
Bible Society against my call to work for God. Others
are also being scrutinized as to how they can leave.

Since
you are the one who asked us about the problems we face and we
honestly told you our situation in confidence as Christians,
we ask
you to intervene for us. The Executive Director is openly
challenging in staff meetings that you cannot do anything to him
since you are not his direct boss. Please help us for God’s
sake before we seek outside help. The Press are already
interested.

(Emphasis
supplied by this court.) A reading of this letter, which was
purportedly sent by fax, could create many problems between an
employee and an employer. More
so since the applicant could not
substantiate the allegations of mass dismissals. Other than that, the
tone of the letter is questionable
and one would be justified to
wonder what the motive behind this letter was. This court would not
scrutinize each and every phrase,
needless to say the contents
contributed to the unresolved conflict. The letter was sent after he
had been dismissed and it is the
view of this court that it
foreclosed any opportunities for reconciliation or reconsideration to
return to work. The letter reflects
the general attitude of the
applicant even when he was negotiating with management. This confirms
the fact that he was not negotiating
in good faith. It is therefore,
the conclusion of this court that re-instatement is not an option.
Ultimately the most practicable
and sure way of providing relief to
the applicant is an award for compensation.

2.     
Compensation.

Having found
that the applicant was unfairly dismissed, it is the duty of this
court to make an award of compensation as specified
in section 63 (4)
of the Act.  This section provides that:

 “An
award of compensation shall be such amount as the court considers
just and equitable in the circumstances having regard to the
loss
sustained by the employee in consequence of the dismissal in so far
as the loss can be attributable to action taken by the employer
and
the extent, if any, to which the employee caused or contributed to
the dismissal.”

The factors
to be considered when deciding an award of compensation under the
section are:

• Just
  and equitable;
  

  
  

• Loss
  sustained by the employee in consequence of the dismissal;
  

  
  

• Loss
  to be attributable to the action of the employer;
  

  
  

• Employee’s
  contribution to the dismissal; and
  

  
  

• Guidelines
  under section 63 (5) of the Act.
  

  
  

The court
shall endeavour to arrive at a sum of money that is just and
equitable to adequately compensate the applicant without leaving
him
poorer or richer. The applicant must show that he incurred loss due
to the dismissal and that the loss was a direct consequence
of the
action taken by the employer. When this loss has been verified, the
court shall reduce the amount to the extent that the applicant
contributed to the dismissal.

COUNTER CLAIM

The
respondent counter claimed a sum of money, which had been loaned to
the applicant during his service with the respondent. However,
the
counter claim was later withdrawn because the amount had been
recovered.

ASSESSMENT
OF DAMAGES

The court
shall assess damages at a date to be fixed and both parties will be
required to attend the assessment. In assessing damages
the above
factors shall be taken into consideration.

Pronounced
in open court this…2^ND  …day of…October…2002
at LIMBE.

R.Zibelu Banda
(Ms.)

DEPUTY
CHAIRPERSON