Nanthambwe v Bunda College of Agriculture (Civil Appeal No. 4 of 2014) [2017] MWHC 7 (06 January 2017);

CIVIL APPEAL NO. 4 OF 2014

BETWEEN

CHANCY NANTHAMBWE ........................................... APPELLANT

AND

BUNDA COLLEGE OF AGRICULTURE ........................ RESPONDENT

CORAM: HON. JUSTICE R. MBVUNDULA

Chipeta, Counsel for the Appellant

Mhura, Counsel for the Respondent

Chitsulo, Official Interpreter

JUDGMENT

Facts

The appellant is a former employee of the respondent. His employment was terminated in a restructuring process. The appellant instituted proceedings in the Industrial Relations Court (IRC) claiming that the termination was not in accordance with the law applicable, in that the respondent did not consult him before the decision to terminate his employment was arrived at. He claimed for "dismissal but referred to as restructuring" .

The IRC found that the respondent adequately consulted its employees through the employees' union before arriving at the decision, that the employees were well aware that there was an ongoing restructuring process, and that the fact that the appellant was on leave at the time was immaterial as he was personally aware of the process. The IRC thus dismissed the appellant's claim for unfair dismissal on the ground that the respondent had carried out sufficient consultations.

This appeal is on two grounds:

1.   That the IRC erred in law in failing to properly apply the law relating to termination of employment due to operational requirements of the undertaking;

2.   That the IRC erred in law in failing to properly apply the law regarding the burden of proof in cases of unfair dismissal.

The appellant seeks an order reversing the judgment of the IRC.

In his evidence in chief all the appellant complained was that he was unfairly picked for redundancy, as someone, a Mr Biliati, had been employed to take over his position, that his colleagues were still in the respondent's employment, and that he felt that the respondent's claim that it was downsizing the staff compliment was not true because someone took over his position. In cross examination he conceded that Mr Biliati was in fact occupying a higher position than his, hence it was not true that Mr Biliati had replaced him in his position. The appellant also conceded that other employees left as a result of the restructuring.

The evidence for the respondent showed that prior to the restructuring a consultant was engaged who recommended a downsizing of the staff compliment and the outsourcing of some services, that there were two retrenchments, the second of which affected the appellant, and that in all 24 employees were retrenched this time around. The evidence showed that there was due notice of the retrenchment. The respondent denied that Mr Biliati replaced the appellant. There was evidence that consultations were carried out, including briefings, as part of wider consultations, and that every employee was invited to such consultations. The IRC in this regard specifically found that the respondent consulted the applicant's union, and that the evidence of the respondent was "steadfast" on that aspect and that the applicant did not contradict the assertion.

Submissions

For the appellant it was submitted that in addition to ascertaining that there were consultations, the court must examine whether the employer reported the issue of laying off to the Labour Commissioner, whether there was any disclosure of information by the employer, whether the employees were afforded an opportunity to make representations and whether the employer responded to the representations, whether there was a selection criterion as regards those who were to be on redundancy list, among others. It was submitted that on the facts of this case the respondent did not undertake a comprehensive examination of the facts and circumstances of the appellant's termination of employment within the limits and spirit of the relevant law and that the termination was not for a valid reason. That no report was made to the commissioner and there was no clear selection criteria. That the appellant was not afforded an opportunity to make representations. The lower court therefore misdirected itself on the law.

Regarding the second ground of appeal it was submitted that the IRC failed to appreciate the burden of proof exacted by the law on the respondent as the respondent failed to prove, apart from alleging that there were consultations, that all the other requirements were met. On that basis it cannot be said that the respondent provided a valid reason for the termination of the appellant's employment or that in terminating the employment the respondent acted with justice and equity.

Respondent's Submissions

Regarding the first ground of appeal counsel for the respondent was in agreement with the law as stated by counsel for the appellant save for the submission that the restructuring had to be reported to the Labour Commissioner. On the facts it was submitted that the finding that the respondent carried out proper consultations should be upheld.

Regarding the second ground of appeal it was submitted that the respondent led proper evidence regarding the manner in which the redundancy was undertaken, in particular, that there was proper notice of an impending reduction to all employees and consultations between the employer and the employees' union. It was further submitted that there was evidence that the person who took over the appellant's position was not of the same rank as that of the appellant, giving credence to the fact that there was a justified restructuring, and that there was a specific finding of fact in the judgment of the IRC on the point. Finally it was submitted for the respondent that the appellant in fact merely engaged himself, at the trial, in general allegations of impropriety and irrelevant cross examination.

The Law

Section 57(1) of the Employment Act allows an employer to terminate an employee's employment based on the operational requirements of the undertaking. The provision does not lay down the procedure to be followed in such cases. The IRC in its judgment applied, correctly, in my view, Article 13(1) of the International Labour Organisation Convention number 158 on Termination of Employment as a source of law on consultations and for the position that employees' representatives must be consulted. The IRC has previously held in Ngwenya and Gondwe v Automotive Products Limited IRC Matter No. 180 of 2000 that in the absence of a laid out procedure in the Employment Act the court would resort to the convention and that where there is no union the employer may carry out group consultations and where the workforce is small the employer may carry out individual consultations.

Article 13(1) (b) of the convention is particularly relevant. It is there provided:

"When the employer contemplates termination for reasons of an economic, technological, structural, or similar nature, the employer shall:

a)

b) give ... the workers ' representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.

It is sufficient, under the convention, for the employer to consult with the workers' representatives, and the employer need not consult individual employees, although it may do so where it is convenient or the circumstances specifically so dictate. I would therefore endorse the position taken by the IRC in Ngwenya and Gondwe v Automotive Products Limited Ngwenya and Gondwe v Automotiv e Products Limited.

Article 14 of the convention requires that when an employer contemplates such terminations as are mentioned in article 13(1) the employer must notify the competent authority under the national law of giving relevant information including the reasons for the terminations, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out.

This court's determination

In regard to the first ground of appeal I find the following facts to have been proved at the trial:

1.  that the respondent carried out a downsizing exercise resulting in two retrenchments, the second of which, affected twenty-four employees, including the appellant;

2.   that prior to the restructuring the respondent informed its employees, if not individually, through the employees' union, of the impending restructuring and that such consultations included briefings, hence the respondent complied with the requirements of Article 13 of the ILO convention cited herein;

3.   consequent upon the facts in 2 above the appellant was fully aware of the impending restructuring;

4.   that the appellant failed to prove that another person, Billiat, had replaced him in his position as the said Billiat occupied a position higher than that of the appellant, thus failing to establish that his position continued to subsist after the restructuring.