IN THE INDUSTRIAL RELATIONS
COURT OF MALAWI
MATTER NO. 33 OF 2001
TONNY KATSABOLA ………………………………….APPLICANT
HON M.C.C. MKANDAWIRE
Mr. I. Kambuku, Employers’ Panelist
Mr. B. Manda, Employees’ panelist
Applicant - present
Respondent - present
Mr. Lora, official interpreter
J U D G M E N T
HON M.C.C. MKANDAWIRE
The applicant Mr. Tonny C. Katsabola has brought this matter against the respondent who is Postmaster General. The applicant claims that the respondent is withholding his wages. He contends that the respondent is withholding his wages which arise as a difference between government salary and corporation salary. He would therefore Love to see this court order that the respondent do pay him that difference which is withheld.
The respondent has filed in a response to the claim made by the applicant. In their response, the respondent says that the applicant is not entitled to the difference in wages which he is claiming for.
It is therefore imperative at this point to directly delve into the evidence of this case as presented by the applicant who was the only witness for his side. The applicant told the court that he got employed by the Malawi Government as a clerical officer in 1980. Upon his appointment as clerical officer, he worked in different government departments. In 1990, he was posted to the Postmaster Generals’ department. Whilst with the Postmaster Generals’ department, he was even sent for further training at Mpemba Staff Training College as it was then called. Upon completion of the training at Mpemba, he was appointed or promoted to the rank of Executive Officer (EO) within the Postmaster Generals’ department.
In the year 1993, he was interdicted on allegations that he had misappropriated cash for his master. The applicant tendered the letter of interdiction which is marked App Ex No 1. This letter came from the Department of Personnel Management and Training of the office of the President and Cabinet (OPC) who were the controlling office but was sent through the Postmaster General who were the responsible office for the applicant. From the contents of this letter, the applicant was interdicted on the 16th of April, 1993 without any pay. It is the evidence of the applicant that he stayed on interdiction for a very long time. He later on discovered that time was running against the cause of events. As such, he started making personal follow ups with the respondent. He was however informed that the matter was being handled by the post office investigation branch. He thus waited for over a year but to no avail. He then decided to approach the respondents’ head office as to what was happening with his case. He was later on informed that the respondent had written the department of personnel management to re-instate him. The applicant waited for another year; but to no avail. He then went straight to check with the department of personnel management and training (OPC). He was informed that they had indeed received instructions to re-instate him but that they could not do so unless they received a letter from the respondent that the case which led to his interdiction was withdrawn by them. It is the evidence of the applicant that by some chance, he got a copy of the letter from the respondent to the department of personnel management and training advising them of the withdrawal of the case and that the applicant be re-instated.
He tendered the letter as App Ex No 2. This letter is dated the 24th of July, 1996 which clearly does confirm the applicants’ story that nothing was done for a period of 3 years. This letter was accompanied by a clearance letter from the Malawi Police. In this letter, the respondent was advising the Department of Personnel Management and Training that:
(a) The applicants’ interdiction be cancelled.
(b) The applicant be re-instated into the service with immediate effect.
(c) The accumulated pay should be paid by Malawi Posts and Telecommunications Corporation.
The respondent also advised the Department of Personnel Management and Training that the applicant be posted back to their Department. They also indicated in this very letter that they were forwarding to their office the personal file and other relevant documents for the applicant. The applicant told the court that after he had made this enquiry, he was told to wait. He told the court that he waited for another year. As he was waiting to hear from the department of personnel Management and Training, he got another letter now from the transformed Postmaster Generals’ department (called the Malawi Posts and Telecommunication Corporation – MPTC). This letter is dated the 4th of August, 1997. The letter was on the subject matter "Termination of Service" and is tendered in this court as App Ex No 3. This letter was referring to the letter of interdiction App Ex No 1 and terminated the services of the applicant. It further provided that the applicant will be entitled to the following benefits:-
1. Salary withheld during suspension
2. Three months salary in lieu of notice.
3. Terminal benefits from government for the service rendered when MPTC was a Government Department.
4. Payment of any leave days and leave grant if any plus Overtime worked prior to interdiction.
The applicant in conclusion told the court that when his employment was being terminated, he was now an employee of the newly formed Corporation MPTC . He therefore expected that all his dues as from the time MPTC came into effect, should have reflected MPTC salary and other renumeration and not Government salary. The applicant was subjected to quite an interesting cross-examination by Mr. Khaki the official representative of the respondent. The court shall refer to some of those pertinent questions and answers at a later stage in this our judgment.
We shall now look at the evidence that came from the respondent through Mr. George Allan Khaki who is a senior Human Resource Management Officer. Mr. Khaki concurred with the applicant that at one time, the applicant was an employee of the then department of posts and Telecommunication which was a pure government department. In 1993, the applicant was interdicted and whilst on interdiction, there was a period of transition whereby the respondent was transformed into a Statutory corporation popularly known as MPTC. This MPTC was established by an Act of parliament which is Act No 29 of 1994 which became operational on the 14th of December, 1994. Mr. Khaki tendered in court the relevant part of this Act which is marked as Res Ex No 1. It is the testimony of Mr. Khaki that all the employees in the former Posts and Telecommunication department were given an option to elect either to go back to the civil service or become employees of MPTC. If they did not elect within 12 months from the day the Act became operational, it was deemed they had retired in the civil service. The witness referred this court to the provision of section 102 (I) of this MPTC Act which reads :-
"Any person who, immediately prior to the commencement
of this Act, is employed in the Department of Posts and
Telecommunication may, at any time within twelve months
thereafter, by notice in writing to the Minister, elect to become
an employee of the corporation or retire from the public
service on the terms and conditions on which he was
employed prior to the commencement of this Act."
It is the evidence of Mr. Khaki therefore that since the applicant did not elect within 12 months period i.e. up to 14th of December, 1995 after consultation with the then department of personnel Management and training, he was pushed to MPTC as a liability. But since he had not opted to join MPTC, he was accordingly terminated on the conditions set down in the letter. The witness further told the court that as per the new conditions of service of MPTC in particular clause 2.0 all those who were its new employees were written letters of appointments. The witness tendered both the provisions of clause 2.0 of MPTC as well as a sample of the letter of appointment. These are Rex Ex Nos. 2 and 3. Mr. Khaki further said that although the applicant was on interdiction, there was nothing that could have stopped him from electing.
This sounds to be quite an interesting case indeed. From the totality of the evidence on record, there are thus several issues which have now been settled as facts. It is settled as a fact that the applicant was an employee of the Malawi Government. He was thus a civil servant from 1980. As a civil servant he was posted to the respondents’ department in 1990. He worked with then very well up to 1993 when he fell into trouble on allegations of dishonesty. It is also settled as a fact that he the applicant was put on immediate interdiction on no pay and he was not even reporting at the office. From the evidence on record, it is again clear that the masters of the applicant have been extremely slow in sorting out the predicament of the applicant. Since 1993, there was literally nothing happening. It had to take the applicants’ personal efforts to push matters when he was eventually informed that he had been cleared and all was awaiting the government to re-instate him. It should be remembered that as the applicant was on interdiction, the respondent department was undergoing a major overhaul. The department became a statutory corporation department through an Act of parliament that was promulgated into Law and became operational on 14th December, 1994. By this time when the respondent became a statutory corporation, the applicant was still suffocating on interdiction. The court has looked at the position of such a person like the applicant who by virtue of this interdiction was not in constant touch with the office. It is again natural that a person who is on interdiction is generally resented as a liability especially where the interdiction is involving money. Even Mr. Khaki in his evidence had used the word or term liability referring to the applicant. It even becomes worse when on is on interdiction on no pay, because he/she does not even have an excuse to pass by the offices pretending to collect ones monthly salary.
As this transition was in motion, the applicant should certainly have been at a very big disadvantage unlike those friends of his who were day in and day out reporting for duties. These other employees should have followed up the transition very well and should have been in a better position to make an informed choice to elect or not to elect.
The court would like to make very serious observations on what the respondent were saying in relation to the flow of information on this issue of election. Mr. Khaki told the court that there was no communication by the respondent to the applicant in relation to the developments that were going on in 1994. But Mr. Khaki said that since parliament had enacted a law on the MPTC, the applicant should have known that clause 102(1) of that Act required him to elect within 12 months. Much as we enjoyed the philosophy that Mr. Khaki was trying to propound i.e. that ignorance of the law is no defence; but we have to bear in mind here that we are not talking of a criminal prosecution where the maxim ignorance of law is no defence applies. Apart from that, Mr. Khaki’s utterances appear more comical that real and fair. If any institution is undergoing major changes as was the case with the department of posts and telecommunication, even if such a change is through legislation, the employer is duty bound to enter into constructive consultation with its employees. This duty is even more where employees are supposed to make choices as was the case herein. The employer can not shift that duty on the shoulders of the employee and say that the employee should have known that through an act of parliament.
In situations where parliament has passed a law which criminalizes any act, the situation may be different indeed because the publication of that law through the gazette becomes public knowledge. That is why ignorance
may not act as defence but only as mitigation. The case before us is rather different. There was an employer and employee relationship between these two parties. Thus the employer was duty bound to adequately inform the employee and in relation to this case, inform the applicant who was on interdiction that these were the changes and that he was supposed to elect whilst on interdiction. The respondent did not take steps whatsoever and that left the applicant in the dark.
We have addressed our minds towards section 31 (1) of the Republic constitution which deals with Labour rights. The section provides:
"Every person shall have the right to fair and safe labour
practices and to fair renumeration."
This section as it is, is very brief and the duty is on the court to expand it and give meaning to what the provisions of this constitution had intended to achieve. The term fair labour practices has to be looked at from a very wide perspective. In this case at hand, we find that the respondent were engaged in what we call unfair labour practices. They knew very well that the applicant was on interdiction. They knew very well that there was a transition going on in their institution but they did not think of informing the applicant even orally about those changes and what was expected of the applicant. All they say today is that the applicant should have known on his own through the MPTC Act. This type of approach is what we term unfair labour practices. The employer - employee relationship demands that the employee should be furnished with necessary information in order to come up with rational decisions.
We also observe that by the time the period within which the employees were supposed to exercise their right to elect i.e. 14th December, 1995, the applicant had not yet heard anything from the respondent in relation to his position as he was still on interdiction. The letter which the respondent later on wrote advising government to lift the interdiction and re-instate the applicant is dated the 24th of July 1996. Thus this letter was written some seven months after the period within which to elect had already expired. We therefore wondered as to how the applicant in the situation in which he was could have complied with what the Act had stipulated in section 102 (1) . The case before us further does underline the levels of unfairness which the respondent has inflicted on the applicant. Instead of getting a letter of re-instatement, the applicant got a bomb shell that his services were terminated. When we further look at the way the services of the applicant were terminated, we find that the respondent had been extremely unfair to the applicant. We are aware that by 1996, the old employment law did not provide adequate ground as to how terminations could be done. Thus most employers took advantage of that gap.
This court is however aware that by 1996, Malawi had a new Republic constitution. Section 43 of this constitution deals with administrative justice.
"Every person shall have the right to
his or her rights, freedoms, legitimate expectation or interests are affected or threatened; and
(a) Lawful and procedurally fair administrative action,
which is justifiable in relation to reasons given where
(b) be furnished with reasons in writing for administrative action where his or her rights, freedoms, legitimate expectations or interests are known."
Section 43 of the constitution requires in our view, that an administrative action affecting another person must be lawful and fair, it must also be supported by reasons which must be given to the affected person. This requirement exists where the administrative action would adversely affect the rights, freedoms, interests and legitimate expectations of a person.
It is important to note that this section was also intended to enable persons affected by administrative actions to have adequate opportunity to defend themselves effectively. A person would be able to present a good and effective defence to an administrative action when he or she know the reasons supporting the action.
In the present case, it is clear that the respondent did not at all provide any chance to the applicant so that the applicant could defend himself before his employment was terminated. Thus the respondent did not follow procedurally fair administrative action. The respondent also referred to the letter of suspension as being the reason for the termination. But we find that the respondent were blowing both hot and cold. It is the same respondent who on 24th of July, 1996 had written a letter to Government advising government that the suspension of the applicant be cancelled and let the applicant be re-instated to his job with all the benefits re-installed to him with arrears. If they later on wanted to deal with the applicant administratively, the respondent should have respected the rights of the applicant in relation to administrative justice.
We have also looked at section 211(1) of the constitution which provides as follows:
"Any international agreement ratified by an Act of
parliament shall form part of the Law of the Republic
if so provided for in the Act of parliament ratifying
This is the constitutional provision which mandated the court to have recourse to International Labour Standard of the International Labour Organization (ILO) ratified by Malawi. One of these ILO conventions ratified by Malawi in 1986 is the Termination of Employment Convention
(1983) No 158. This convention having been ratified by Malawi in 1986 means that on the 4th of August, 1997 when the applicants’ employment was terminated by the respondent, the respondent was bound to follow the provisions of this very fundamental convention. Article 4 of this convention provides:
"The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with
the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service."
This article therefore deals with what is generally referred to as substantive justice. This therefore requires that before the employer can effect any termination, there should be justification for terminating the service of an employee. Then there is article 7 which deals with procedure prior to or at the time of termination. This Article says:
"The employment of a worker shall not be terminated for
reasons related to the workers’ conduct or performance
before he is provided an opportunity to defend himself against
the allegations made, unless the employer cannot reasonably
be expected to provide this opportunity."
This is what is termed as procedural justice. If one compares Article 4 and 7 of this ILO convention, to our section 43 of the constitution, it is very clear that these two separate provisions are similar in as far as the philosophy of natural justice is concerned in particular, the principle that no one should be condemned unheard. What the respondent did in relation to the applicants’ employment was totally in breach of this fundamental rule of natural justice.
We have been compelled to look at this case up to this far because we are of the view that the applicant suffered a lot of unfair treatment by the respondent. Our finding is therefore quantified as follows:-
(1) It was unfair and unjustified for the respondent to have in the first place terminate the services of the applicant in the way they did.
(2) It was unfair and unjustified for therespondent to have failed to Provide the applicant with the opportunity to elect.
The net result is that the respondent had acted unfairly as such, the applicant deserves to be provided with a relief that is most suitable taking into account the circumstances of this case. We have taken note of the relief
Which the applicant has put in his statement of claim. We are however of the view that since we have come to a conclusion that the whole termination was unfair, it would be contradictory for us to order that relief. We have looked at Article 10 of convention 158 of the ILO on Termination of Employment at the Initiative of the Employer. This Article provides that:
If the court finds that termination of employment is unjustified and if the court is not empowered or does not find it practicable in accordance with National Law and practice to declare the termination invalid and /or order or propose reinstatement of the worker, the court shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate."
This matter arose in 1997 when our National Law and practice was extremely vague in as far as employment Law and Labour disputes are concerned. The New Employment Act which has specifically addressed issues of re-instatement only came into force in September, 2000. The Labour Relations Act, Act No. 16 of 1996 mentions of re-instatement as a relief in section 8 but that only applies to issues pertaining to freedom of association. We thus find ourselves with no any other alternative at the moment but to result to the use of Article 10 of the ILO Convention. But before we finally make our order as to whether to award compensation or any other suitable relief, we would like to make some enquiry from both the applicant and respondent. This enquiry is mainly going to focus on the details of payments which were made to the applicant after termination of services.
DELIVERED this ……………day of ………………2001 At Mzuzu Industrial Relations Court
Mr. I. Kambuku
Mr. B. Manda