IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC PR 344/ 143 OF 2006

BETWEEN

SINGANO,
BORMAN & OTHERS………………………………….
APPLICANTS

-and-

G4
SECURITY SERVICES LTD …………………………………...
RESPONDENT

CORAM: R.
ZIBELU BANDA (Ms); CHAIRPERSON

Malijani;
Employers’ Panellist

Kajombo;
Employees’ Panellist

Ms
Munthali; Of Counsel for the Applicants (13)

Majamanda;
Of Counsel for the Respondent

Gowa;
Official Interpreter

JUDGMENT

1. Strike-Lawful
   strike-In furtherance of strike-Worker
   or Member of Trade Union engaging in peaceful picketing
2. 
   Peaceful
   picketing- Lawful for a person to be
   at or near his place of work or business or employer’s premises in
   order to peacefully communicate information of peacefully
   persuading
   anyone-Not to- Enter that place of work or business- To work- To
   deal in or handle that employer’s products-to do
   business with
   that employer
   
3. Dismissal-Reason-Picketing-It
   is unfair to dismiss an employee engaged in peaceful picketing
   
   

Facts

The
Applicants had their services terminated following their appointment
to a working committee that would discuss with the Respondent’s

Management the merger between Securicor
(Mw) Limited and G4 Securicor. The Respondent accused the Applicants
of inciting an illegal strike
and intimidating other employees who
did not want to go on strike. The respondent invited the Applicants
for a disciplinary hearing
a day before the threatened strike action
and dismissed them on that day. The strike did not take place. The
applicants challenged
the dismissal claiming that the reason was not
valid and therefore that the dismissal was unfair. The respondent
averred that the
dismissal was fair.

The
Law

Section
53 of the Labour Relations Act provides
that in furtherance of a lawful strike or lock out it shall be lawful
for a person to be at or near his or her place
of work or former
place of work or a place of business of the employer or former
employer for the purpose of peacefully communicating
information of
peacefully persuading anyone (a) not to enter that place of work or
business (b) not to work (c) not to deal in
or handle that employer’s
products; and (d) not to do business with that employer. In
subsection (2) it provides that this right
shall extend to any
officer of a trade union or employer’s organisation whose members
are acting in furtherance of such strike
or lock out.

The
respondents in this matter alleged that the applicants gave notice
that they were going on strike. The notice was not adequate.
They
also averred that the applicants were inciting others to go on
strike. They also alleged that the applicants were intimidating
and
threatening other employees to go on strike. However there was no
evidence to support these allegations. There was no proof
that the
applicants incited others to go on strike or threatened fellow
employees to go on strike. Further because the applicants
were
dismissed before the strike actually took place, the respondent’s
could not allege that the notice period was not adequate.
Further the
question as to whether or not a strike is illegal or not by virtue of
not complying with the requisite procedures is
to be determined by
the Industrial Relations Court which has powers to order an
injunction against any intended or actual strike
that was perpetuated
without following proper procedures, see section 54(1) of the Labour
Relations Act.

A
reading of section 53 and the whole Chapter V on Dispute Settlement
especially provisions relating to unresolved disputes and
the right
to strike support the action of the applicants. They were under the
law entitled to take the steps that they took in
furtherance of a
strike. It was shown that they had given notice to strike and that
they complied with all the other procedures
stipulated in section 46
of the Labour Relations Act namely that (a) the dispute must be
deemed to be unresolved (b) the dispute
is reported to the Principal
Secretary and conciliation process is instituted and fails and (c)
the matter is not pending for determination
in the Industrial
Relations Court.

In
dismissing the applicants based on the reasons they used the
respondents violated provisions of section 57(3) of the Employment

Act especially subsection (e) which provides that: The following
reasons do not constitute valid reasons for dismissal or for the

imposition of disciplinary action:- an employee’s participation or
proposed participation in industrial action which takes place
in
conformity with the provisions of Part V of the Labour Relations Act.

Employees
are, by law allowed peaceful picketing in furtherance of a strike.
There was no evidence that the applicants
incited a strike (which strike did not actually take place) or
intimidated other workers
who wanted to work. Under the circumstances
it was wrong and unfair for the respondent to dismiss the applicants.
The reason for
the dismissal is automatically invalid under the law.
The dismissal was unfair.

Remedies

The
applicants applied for compensation for unfair dismissal. They also
alleged that they were not paid severance allowance. Both claims
are
allowed. The parties to appear in court for assessment of
compensation and determination of severance allowance.

Pronounced
this
30^th
day of January, 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Nick
Chifundo Kajombo

EMPLOYEES’ PANELIST