Court name
Industrial Relations Court
Case number
Misc. Matter 40 of 2002

Chinkondenji v Malawi Stock Exchange (Misc. Matter 40 of 2002) [2002] MWIRC 4 (31 January 2002);

Law report citations
Media neutral citation
[2002] MWIRC 4
Coram
Null

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI


MATTER NO. 40
OF 2002


BETWEEN:


VERONICA
CHINKONDENJI……………………………APPLICANT


-and-


MALAWI STOCK
EXCHANGE LIMITED……...……RESPONDENT


CORAM: 


HON. M.C.C.
MKANDAWIRE – CHAIRMAN


Applicant, present
(Unrepresented)


Mr. Msiska of Counsel
for the respondent


Mr. Lora – Official
Interpreter


R U L I N G


MATTERS IN
ISSUE
:
Application for an
Urgent Interim relief pursuant to Rule 25 (1) (M) (i) of the IRC
(Procedure) Rules. An Employee who is demoted,
is he/she entitled to
an urgent interim relief to be reinstated to his/her original
position pending hearing the substantive case.


The applicant Mrs.
Veronica Chinkondenji has brought this matter pursuant to Rule 25 (1)
(M) (i) of the Industrial Relations Court)
(Procedure Rules). In her
affidavit in support of this application which application is through
a notice of motion, she is seeking
an urgent interim relief to be
reinstated to the position of Administrative Assistant/Secretary
pending determination of substantive
issues which she has itemized on
her Applicant’s Statement of Claim. The application has been
opposed by the Respondent and there
is an affidavit in opposition.


When the matter came
for hearing, the Court heard from her as to what has led her make
this application. She thus supported her affidavit
with oral
evidence. In brief she told the Court that on the 2nd of
January 2002, she fell ill. The following day, she asked for
permission to see her doctor. She was later on advised by the doctor
that she had to undergo a D & C plus a minor operation. Before
she went to the theatre, she sought permission from her Chief
Executive Officer a Mr. Mpinganjira. After the operation, she spent a
night at the hospital. The doctor thereafter recommended that
she
should be on sick leave. Thus she had to resume work on the 16th
of January 2002. She communicated all this to her boss although the
news of sick leave was not received very well. On the 10th
of January 2002 as per the doctor’s instructions, she went back to
the hospital for a check up. The doctor said that she was okay
and
that she could resume her work on the 16th of January
2002. Thus on this day, she reported for work. She went and sat in
the office where a new secretary was. This is the secretary
who had
been employed in the year 2000 before she went on sick leave. When
the Chief Executive reported for duties, she personally
went to
report that she was back. He welcomed her and thereafter she went
back to the office where this new secretary was. This is
the very
office she used to stay in before she went on sick leave.


As she was in the
office the Operations Manager Mr. Kamanga came to see her. He
informed her that he had instructions from the Chief
Executive Mr.
Mpinganjira to advise her that she should leave the office and be at
the reception. This puzzled her and she sought
an audience with the
Chief Executive Officer. In the afternoon of that day, the Chief
Executive Officer called her to his office.
She did explain to him
what Mr. Kamanga the Operations Manager had told her. To her
amazement, the Chief Executive Officer informed
her that what Mr.
Kamanga had told her was actually wrong. He should have informed her
that she would be at the reception permanently.
He also advised her
that actually the board had met and had advised him that she should
be dismissed because of a rude letter which
she had written to the
Chief Executive Officer. The applicant said that she requested the
Chief Executive Officer to put his instructions
in writing which he
declined and all he did was to shout at her calling her all sorts of
names. Because she could not get his instructions
in writing, she
decided to write him seeking written instructions through a letter of
16th January 2002. She reminded him on the 24th
of January 2002 but there has been no response. As such, she decided
to find refuge in an office where the driver and messenger stay
since
the Chief Executive Officer had told her that she could choose and
sit anywhere. Later on she was chased from that office and
she went
to sit in a sole computer office. Later on she did observe that
things were getting worse by day hence her coming to file
this case.


As I have already
stated, the Respondent have filed an affidavit in opposition deponed
by Mr. Mpinganjira the Chief Executive Officer.
When Mr. Msiska of
Counsel came to argue the case, he adopted the affidavit in full. In
this affidavit, the Respondent says that
this application for an
urgent interim relief is totally unfounded. They argue that the
Applicant has not been demoted. As per the
contract between her and
them, she is still Administrative Assistant/Secretary. She is still
getting her salary as Administrative
Assistant/Secretary. She is
still entitled to her benefits and advantage as per the contract
agreement. The Respondent further depone
that due to her health
problems, she has been out to seek medical attention including
undergoing operations. They have attached all
the medical receipts.
The go on to state that recently, she underwent an operation and had
to be on sick leave for 8 days. The office
had no option but to
employ a temporary secretary. They have attached a letter of
appointment of this temporary secretary. Due to
her recent health
problems, the board met and decided that upon return from the 8 days
sick leave, she should be given lighter work.
That is why this was
done by assigning her to the reception. All this they state was done
on humanitarian grounds. No letter of official
communication was
written as this was supposed to be temporary.


The Applicant made a
reply to this affidavit in opposition. She totally disagreed with the
matters deponed therein. She first started
by saying that the first
sickness she had was in 2000. She indeed had a major operation due to
a tumour in the womb. She however
said that she recovered very well.
Then in the year 2001, she had malaria, which she takes as very
common sickness. The third problem
was the one in January 2002 when
she had a gyna problem, which is very common with all women.
She had a minor operation and after 8 days, she recovered very well.
The operation
of 2000, which was a major one, is the one which
necessitated the Respondent to employ a temporary secretary. She
therefore wondered
how her sickness of the year 2002 is connected to
that of 2002. It was her reply that when she came back on the 16th
of January 2002, the Chief Executive Officer did not even find out
how she was feeling and she was not afforded any opportunity to
express her feelings about her health. The Respondent did not even
request to see her medical report about how fit she was. It is
her
reply to this affidavit that reception work is more involving than
the work she was doing as Administrative Assistant/Secretary.
The
work of a receptionist involves walking up and down, talking to lots
of people, taking visitors into different offices, typing
all the odd
jobs, handling a busy switchboard, talking too much, handling
incoming/outgoing mail, meeting different people etc. It
needs
energy. She further said that if the office was really acting on
humanitarian grounds, there is no way the Chief Executive
Officer
could have been harassing her as he has done.


The two parties at
one moment were involved in a very strong exchange of verbs in
relation to whether the Applicant has been demoted
or not. From the
Applicant’s side, she takes this as a demotion because demotion to
her means change of status. It is her belief
that as Administrative
Assistant/Secretary, she had a higher status. Although she is at the
same salary, she is no longer doing the
work of Administrative
Assistant/Secretary. She is reduced to a mere receptionist, which is
very humiliating to her. On the other
hand, the Respondent’s
Counsel says that she is not demoted at all. She is getting all the
perks as Administrative Assistant/Secretary.
The contract document
has not been changed. Demotion, Counsel noted, means change of status
in all aspects that is salary plus change
of duties. I really found
the two definitions or descriptions of demotion very interesting and
rather comical. I think one of the
two should be telling the truth.
Certainly both of them cannot be right.


Before I further
delve into the matter I do hereby reproduce Rule 25 (1) (m) (i) of
the IRC (Procedure Rules) under which this notice
of motion has been
instituted. This rule says:-



"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 – grant urgent
interim relief pending a decision by the Court after hearing".

The Applicant herein
seeks a relief of being reinstated to her original post of
Administrative Assistant/Secretary. The Respondent
avers that her
position has not changed at all. The key word in dispute is whether
she has been demoted at all. The noun ‘demotion’
is defined as
follows in the Oxford English Dictionary at page 134 –


‘reduce to a
lower rank or category’


The Applicant was
verbally ordered to be in the reception. I need not go into details
as to what type of duties are performed at the
reception desk because
I am of the view that even Counsel for the Respondent should be aware
of such duties. I do totally agree with
the Applicant’s
observations that even if one gets a salary and benefits of his or
her original rank, but if the person is asked
to perform duties of a
lower rank, that is tantamount to reducing the status of that person
and it amounts to demotion.


The Applicant indeed
gave a very relevant analogy of demotion. She said that if a General
Manager is told to leave his office but
with all the perks intact
plus a company car but is told to perform the duties of a cleaner,
would that not be called demotion? I
think it would be. The
description of demotion from the Respondent’s perspective is more
legalistic than being realistic. I find
that the Applicant herein was
and is really demoted.


I have read the
affidavit in opposition as to why she was told to go to the reception
office. I find that the whole process lacked
fairness. The Applicant
has indeed undergone two operations. The first one in the year 2000
which was described as a major operation
and it necessitate the
recruitment of a temporary secretary since the Applicant was to be on
sick leave for over a month.


After her recovery,
she again fell sick suffering from malaria in the year 2001. This
attack of malaria could be described as normal
as such sickness is
the order of the day in Malawi. Then in January 2002, the Applicant
underwent a D & C plus a minor operation.
She was on sick leave
for only 8 days. As she was on sick leave, the board met and directed
that she should be given lighter work
and they call this to be on
humanitarian grounds. The move the board took was not prudent. They
should first have assessed the situation
of the Applicant and even
seek a professional medical opinion. The fact that the Applicant
underwent a D & C and a minor operation
does not mean that she
cannot perform the duties of Administrative Assistant/Secretary.
After all, the Applicant herself said that
she healed very well and
was told by the doctor to go back to her work. If at all the
Respondent had doubts about her fitness, it
was up to them to request
for a medical opinion. This they did not do. The conduct of the
Respondent in as far as the steps they
had taken amounted to unfair
Labour Practice. For example, upon the Applicant reporting for duties
on the 16th of January 2002, the Chief Executive Officer
did not even have a proper dialogue with her in order to know more
about her recovery.
All he did was to order through the Operations
Manager that she should immediately go to the reception desk. When
the Applicant requested
for reasons in writing as to why she was
being thrown into that office, she was provided with none up to now.
The Applicant wrote
the Chief Executive Officer on two separate
occasions requesting for written instructions but to no avail. The
reasons given in the
Respondent’s affidavit, that they did not
write her because this was a temporary measure, does not hold water
here. When the Respondent
had recruited a temporary secretary in
2000, they wrote the Applicant through a letter dated the 24th
of November 2000. I therefore found it strange as to why the
Respondent were reluctant to write the Applicant on this temporary
change
as they had done before.


The IRC is a Court
which stresses on issues of equity (fairness). The way the Respondent
treated the Applicant in this matter by just
orally dictating to her
without any prior consultation that she should be reduced to a
receptionist is not fair at all.


If this move was on
humanitarian grounds, certainly it has not achieved that objective.
The Applicant told the Court that the duties
of a receptionist are
more demanding and vigorous that she does need to be more energetic.
This therefore means that the Applicant
is being exposed to more
perils. In all fairness, the Respondent went a bridge too far. I
therefore find that this is a proper case
whereby there should be an
urgent interim relief granted. An applicant who applies for urgent
interim relief must not unduly delay
in bringing the application. The
Applicant in this case brought her application in very good time
before she continued being psychologically
traumatized. I do order
that the Respondent with immediate effect should allow the Applicant
to go back to her original office and
continue serving and providing
the services of Administrative Assistant/Secretary. I also order that
the Chief Executive Officer
of this institution should refrain from
psychologically harassing the Applicant. This Order she has obtained
from this Court should
not be used against her for further
harassment.


MADE this
------------ day of February 2002 at the Industrial Relations Court,
Limbe.


M.C.C. Mkandawire


CHAIRMAN