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LUSTANIA LIMITED………………………….………...RESPONDENT

Mr. M.P. Kamala, Employer’s panelist

Mr. B. Manda, Employee’s panelist

Applicant, present/represented by Mr. Chumachiyenda

a Trade Unionist

Mr. Lora - Official Interpreter

This matter was brought by Mr. L.B. Nkhwazi who shall through out this judgment be referred to as the applicant. The applicant has sued Lustania Limited who are the respondent. Through out these proceedings, the applicant has been represented by Mr. Chumachiyenda who is a Trade Unionist. The respondent are represented by Mr. Viva Nyimba a legal practitioner from Legalwise. This matter commenced through the applicant’s Statement of Claim which was issued by this Court on the 24^th of August 2000. In that statement, the applicant disclosed that the respondent are holding his retirement benefits. He thus prayed to this Court that he should be paid the said retirement benefits. There being no response to the applicant’s statement of claim, a default judgment was entered by the Court on the 1^st of November 2000. On the 28^th of November 2000; the Registrar of the Industrial Relations Court set aside the default judgment. Thereafter, the matter was set down for a full hearing, which was scheduled for the 20^th of July 2001. On that day, the applicant plus his representative came. The respondent plus their representative Mr. Nyimba did not turn up for hearing. The Court therefore decided to go ahead to hear the matter because there was evidence that both the respondent and their representative were served with the notice of hearing. As we were about to commence the hearing, a messenger from Legalwise popped in with a message from Mr. Nyimba that he was engaged in a different matter at the High Court. We were therefore requested that the case be adjourned to a different day. We reluctantly adjourned the case to the next day of sitting. We however put it on record that if the same transpired on the next day of sitting, then we would proceed with the matter. Thus fresh notices of hearing went to all the parties for a Court sitting on the 31^st August 2001. On this day, the applicant plus their representative were present again. The respondent plus their representative Mr. Nyimba were again absent.

There was evidence that both parties were served with the notices of hearing. We tried to wait for the respondent plus their representative up to 10.30 a.m. Thereafter, we ordered that we proceed hearing the applicant in the absence of the respondent because there was no reason given for their failure. We are aware that both parties have the contact address as well as the phone numbers of the Court. If indeed there was any emergency that had made them fail to turn up, they should certainly have phoned the Court. We are also mindful of the fact that both parties are from within the City of Blantyre and if indeed they were serious with this case, they should have informed us as to why they were absent.

We therefore heard the evidence of the only witness who is Mr. Nkhwazi. As we were about to wind up when Mr. Chumachiyenda was causing a postmortem of the case, we were informed by the Court marshal that there was Mr. Phiri an Accountant from the respondent’s company with again a message from Mr. Nyimba. The message was that Mr. Nyimba was tied up again in the High Court hence his failure to come in the morning. Mr. Phiri requested that we should sit in the afternoon hours at 2.00 p.m. when Mr. Nyimba would come. We were greatly disturbed by this message. This was not the first time that Mr. Nyimba had behaved thus. We are certainly not against Counsel appearing before the High Court. But certainly, we were very concerned as how Mr. Nyimba wanted events to suit his cause. Mr. Nyimba knew very well that this matter was scheduled for 9.00 a.m.. The respondents were also aware of this fact through the notice of hearing. None of them came at the Court at 9.00 a.m.. The message we got came around 11.00 a.m. after we had already heard all the evidence from Mr. Nkhwazi. We therefore advised Mr. Phiri to tell Mr. Nyimba that if he comes at 2.00 p.m., we would tell him as to what had happened and why we went ahead to hear the applicant in his absence. We therefore adjourned the case in Mr. Phiri’s absence to a date to be fixed for our decision. When time struck 2.00 p.m., Mr. Nyimba did not turn up. I have been personally following up the case with the Registrar Mr. Msukwa as to whether Mr. Nyimba has come to enquire about the position, the answer has been no. We therefore find it strange that if Mr. Nyimba was really serious with this matter, why has he not turned up to pursue what had happened. He sent word that he would come at 2.00 p.m. which he did not do.

We shall therefore narrate the whole evidence from the applicant if one is to appreciate this case. The applicant told the Court that he was employed by the respondent on the 10^th of October 1985. His first position was that of building supervisor and his first assignment was at Kasungu where the respondent were constructing the magnificent Kasungu Teachers Training College. In the year 1989, he was transferred to the Municipality of Zomba as a site agent where the respondent was constructing the Malawi National Examinations Board (MANEB). From the year 1989 onwards, the applicant said that he used to work as a site agent. He worked as a site agent in various districts where the respondent had projects. Thus in the year 1994 he was transferred from Mangochi to Blantyre – Kanjedza. As he was in Blantyre, the respondent told him to go and work in Mozambique as a site agent. The applicant said that at that time, his Malawi passport had expired. He tendered the passport in Court as evidence. But the respondent told him that although he had an expired passport, they would still assist him to go to Mozambique. The respondent accordingly prepared a border pass for the applicant. He travelled to Mozambique with a certain Portuguese. On arrival in Mozambique, the respondent arranged for an identity for the applicant. This identity he tendered in Court as App Ex No.1. Later on the respondent arranged for his passport. He tendered the passport as App Ex 2. The applicant told the Court that his salary at that time was USD1,300 per month. He worked on a site where they were constructing a hospital in Beira. But as the hospital was gathering shape, Civil Aviation authorities condemned the site because it was an air route for planes and as such, it was recommended that it would be a health hazard to have a hospital where planes are day in and day out over-flying the hospital. As a result of this; he was transferred to Pemba. As he was on that transfer, he requested the respondent to give him a few weeks so that he comes to Malawi and sort out a few family problems as all members of his family were in Malawi. The respondent allowed him to come back to Malawi but advised him that he should be ready to go to Pemba by March 1996. The applicant told the Court that he happily came back home and whilst in Malawi, the respondent told him that there was another project in Malawi and they wanted him to assist first before going back to Mozambique. This project was with Malawi Housing Corporation. As he was in Malawi, since now he had a Mozambican passport, he was treated by the authorities in Malawi as a Mozambican national. He was thus warned by Immigration officials that the validity of his stay in Malawi had expired and that all he was risking now was deportation. As a result of these threats, the respondent wrote the department of Immigration requesting for an extension period for the applicant. The applicant tendered the letter as App Ex No. 3. This letter is dated the 3^rd of July 1996 and it is worded as follows:

The Immigration Officer

P.O. Box 331

Blantyre

Dear Sir

This is to certify that Mr. L.B. Nkhwazi holder of Mozambique Passport No. MOO26933 is an employee of Lustania Limited in Beira a branch of Lustania Limited here in Malawi. Lustania Limited Malawi has some work to be done, in the next 52 weeks, by Mr. Nkhwazi and we would appreciate if his stay in the country could be extended.

Yours faithfully

For Lustania Limited

Lewis K.H. Phiri

Following this letter, the applicant’s stay was extended for 52 weeks. The applicant said that he kept on working although sick. He was given a project for MK50 million. Due to sickness, he was taken to Malamulo Hospital for medical attention. After examination there, the medical people advised him that he was too old to continue working and especially at the age of 70. The applicant was therefore advised to retire on medical grounds. There is a medical recommendation to management of Lustania contained in a letter from the Ministry of Health, in particular Queen Elizabeth Hospital, Blantyre where the applicant had gone for guidance. This letter is dated the 22^nd of June 1999 and is written in the following manner:-

The Personnel Manager

Lustania Limited

P.O. Box 996

Dear Sir

I have examined the above-mentioned person, sixty-nine years of age, who has been ill on and off for a long time. I have found that his illness is mainly related to his old age, as a result he cannot perform his duties efficiently. Therefore, I recommend that he should be retired on medical grounds.

Yours faithfully

M. Hawa

Senior Clinical Officer

For: Hospital Director

The applicant did not receive any feedback from the respondent. He therefore lodged the matter with the Union. The Union wrote the respondent on 6^th September 1999. Then they made a follow up through a letter dated the 24^th of September 1999. It is important to note from the evidence of the applicant that before he lodged this complaint with the Union, the respondent had reduced his salary from USD1,300 per month to K6,000-00. The applicant personally protested through a letter dated 13^th December 1996. The gist of this letter, which is App Ex No. 7, was that the applicant was complaining about the following things:-

(1) House allowance from the time he came back from Mozambique.

(2) Reduction of his salary from USD1,300 to K6,000 per month.

(3) Lack of Conditions of Service.

(4) About his 13^th cheque of USD1,300 which Mr. Lapa had promised through a letter that he should get in 1996.

The applicant tendered in Court a letter that was issued to him by Lustania Limited (Malawi). This letter is App Ex 8. It contains the issue of him to be paid USD1,300 per month plus a thirteenth cheque and accommodation. This letter has an official stamp of the respondent in Mozambique and is dated the 2^nd of April 1995. It is signed by Mr. Lapa

The applicant said that he brought this letter with him to Malawi as he was coming and it was addressed to Lustania Limited (Malawi) now the respondent. Having discovered that the respondent were not replying to his concerns referred to in his letter of 13^th December 1996, on 27^th February 1997, the applicant sent a reminder which is App Ex No. 9. He made a copy to Mr. Lapa and also enclosed App Ex No.8. He was not answered. Later on, the applicant decided to come to the office on his own. He was told that they would look into the issue. The respondent then raised his salary to MK12,000 per month. As he was still waiting for the reply the applicant said that his sickness continued. He however still pursued his plight with the respondent through the Union. He went to finally see the respondent’s Chief Executive in Blantyre but was literally told not to come back to the office. This was on 23^rd of March 2000. It is his evidence that since he got employed, he has thus received nothing in the form of terminal benefits. In a nutshell, the applicant would like to be considered on the following:-

(1) Terminal benefits from 1985-2000.

(2) Leave days not taken which are reflected on his pay slip App Ex No. 10.

(3) Salary reduced from USD1,300 to MK6,000-00.

As we have already said, the respondent did not show up and have not even followed up this case. We have however looked at the nature of defence, which they had filed with this Court when they were applying to set aside the judgment in default. The respondent’s defence was as follows:-

(1) The applicant was employed by the respondent as a site foreman in 1994 but later on applicant abandoned the work without notice and joined Sofala Construction Company, which was wound up after few months of his joining it.

(2) The applicant was then employed by Lustania (Mozambique) Limited in April 1996 at a salary of USD1,300-00 per month, but based at applicant’s place of work whilst waiting to go to Mozambique, but applicant refused to go to Mozambique at Pemba due to his personal problems and the contract with the Mozambican Company was terminated due to his failure to go to Mozambique.

(3) Later the applicant was re-employed by the respondent as foreman at a salary of K6,000-00 per month on 1^st September 1996, which was later, raised to K12,000-00 per month.

(4) The applicant retired on medical grounds on 22^nd March 2000 and he is accordingly entitled to terminal benefits based on the salary and benefits he received from the respondent, which the respondent is prepared to pay to the applicant.

We have looked at the evidence of the applicant which evidence is totally uncontroverted. It is clear from the evidence of the applicant that he got employed by the applicant in 1985 and not 1994. It is again very clear that in 1994, that is when he was posted to go to Blantyre from Mangochi. Later on, he was appointed to be a site agent in Mozambique for the respondent’s construction business. His Malawian passport by then had expired. We looked at this passport and indeed observed that this passport was issued on 18^th December 1967 and the date of expiry was 18^th December 1972. The applicant informed the Court that he was taken to Mozambique using a border pass. Whilst in Mozambique, he was based in Beira where the respondent had work. In order to show that he really worked for the respondent in Mozambique, in particular in Beira, the applicant tendered in Court an identification, which is issued in Portuguese language. It is numero (number) 1334; in the nome (name) London B. Nkhwazi, Categoria (category) Tecnico (technical). At the back of this identification, which is App Ex No. 1, there is the official stamp of Lustania Limited, Beira, Mozambique.

We would like to pause here and look at the purported defence filed by the respondent. If indeed the applicant was employed in April 1996 by the respondent and refused to go to Mozambique – Pemba, one wonders how the applicant was issued with an identification of Lustania Limited, Beira, Mozambique. This identity clearly shows that the applicant was indeed in Mozambique working for the sister company Lustania Limited, Beira where he had been sent from Malawi by Lustania Malawi. We also notice that whilst in Mozambique, the applicant was issued with a Mozambican passport and his names changed to Loranco Nkhwazi instead of London Nkhwazi. This change was facilitated by the respondent and we have no doubts that they could have done that. They are indeed capable of achieving all this. We further note that in April 1996 when the respondent says that it is when they employed the applicant, this is in total contradiction with the letter written by Mr. Lapa, which is dated the 2^nd of April 1995. This letter has again an official date stamp of Lustania Mozambique – Beira. The letter was addressed to Mr. V. Moreira and O.V. Custodi of Lustania Malawi. It was an advice to these people about the salary of the applicant, which was USD1,300-00, and the issue of the thirteenth cheque and also the issue of accommodation. The contents of this letter, addressed to officials of Lustania Limited Malawi, only confirm the story told by the applicant that he had asked for permission from the respondent to first come to Malawi from Beira before he could proceed to Pemba in Mozambique his next duty station. In order to buttress up this issue, the applicant also tendered in Court the Mozambican passport, which has the date of 3^rd April 1996 the date he crossed the border to Malawi. He was given up to 2^nd July 1996 to be in Malawi since by this time, he was considered as a Mozambican national. In order to show that the applicant had indeed just come to Malawi from Mozambique, the respondent wrote Immigration in Malawi to have the applicant’s stay extended here in Malawi. This was accordingly done. This letter confirms the story told by the applicant that indeed, he was already an employee of the respondent. They could not have been writing Immigration if the applicant had refused to work in Mozambique. They were actually confirming his story.

We therefore finally observed that the applicant was a truthful person. He had all the documentation to back up his story. What we have observed from the totality of the whole evidence is that the respondent would just like to avoid meeting a higher liability in relation to his terminal benefits and the like. Other wise we are satisfied that his salary per month was USD1,300-00. This is the salary which he had been receiving whilst in Mozambique, and he should have continued receiving it whilst here in Malawi. Moreover, the respondent had even changed the nationality of the applicant, which we find to be extremely unusual. They have to be accountable to the Immigration Department for that. We therefore order that:-

 (a) The terminal benefits for the applicant having retired in the year 2000 be calculated at a salary of USD1,300-00 per month from the dated he started getting that salary when he was posted to Mozambique and when he came back to Malawi. We say so because his further stay here in Malawi was as a result of the respondent having found a project for the next 52 weeks; which later on coincided with the recommendation that he should retire on medical grounds. We however order that from 1985 and before he landed on the job to Mozambique, the calculations for his terminal benefits to be based on the salary which was applicable here in Malawi.

(b) The difference in salary from USD1,300-00 and MK6,000 and finally MK12,000-00 to be worked out and that difference to be paid to the applicant up to the day of retirement.

(c) The 87 days of accrued leave be paid to him.

(d) Housing allowance that was due to him when he came back to Malawi to be paid to him up to the day of retirement.

All these things to be inquired into by the Registrar.

The respondent have the right to appeal to the High Court if dissatisfied but only on matters of law or jurisdiction.

DELIVERED this -------- day of September 2001 at Blantyre-Limbe.

Signed:------------------------------------------------------------------

M.C.C. Mkandawire

Signed:------------------------------------------------------------------

Mr. M.P. Kamala, Employer’s Panelist

Signed:------------------------------------------------------------------

Mr. B. Manda, Employee’s Panelist