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
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:
·
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.
This court finds that the applicant was unfairly dismissed because the respondent violated section 57(2) of the Act.
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.
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.
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…2ND …day
of…October…2002 at LIMBE.
R.Zibelu Banda (Ms.)
DEPUTY CHAIRPERSON