IN THE HIGH COURT OF
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 542 OF 95
BETWEEN:
AND
LIMBE
LEAF TOBACCO LIMITED …………………DEFENDANT
CORAM: MWAUNGULU, Judge
Nkhono,
Legal Practitioner, for the plaintiff
Chirwa, Legal Practitioner, for the
defendant
Katunga,
the official court interpreter
Mwaungulu,
J.
JUDGEMENT
This matter comes because Limbe
Leaf Tobacco Company Limited, the employer, terminated Mr. Kalinda’s employment
of 25 years. Except for one aspect,
parties agree on the facts. There is strident
polarity on the legal implications. The
legal practitioners cited many decisions of this Court, the Supreme Court and
English courts on termination of employment.
All authorities are about employees’ rights under the Constitution, the
Labour Relations and the Employment Acts.
Difficulties arise because legal practitioners approached termination of
employment from human rights under the Constitution (and the laws made there
under, the common law statutes) and international conventions
This is how Limbe Leaf Tobacco
Limited terminated Mr. Kalinda’s employment. On
Mr. Kalinda saw the Deputy Managing
Director, Mr. Kelsel and Mr. Chathatha. Little
discussion occurred that day. The Deputy
Managing Director, after accusing him of stealing, informed Mr. Kalinda that
the Managing Director directed Mr. Kalinda’s suspension and Mr. Chathatha was to
write Mr. Kalinda. On
When the auditor came, Mr. Kalinda met
his boss, the auditor and Mr. Chathatha.
The auditor asked Mr. Kalinda to explain. After Mr. Kalinda’s, the driver
and a security guard gave their stories. They submitted reports to the
company. Since the alleged theft occurred
at Mere Building Contractors Mr. Kalinda discussed with Mr. Banda. Mr. Kalinda suggested the company investigate
but Mr. Banda refused to investigate an external company. On
The
employee contends the employer could not suspend him without pay and should
have investigated and concluded investigation on the ground and decide one way
before terminating because the company, in a conversation, promised to investigate.
The employee thinks his suspension and termination base on misconduct. The
employer denies undertaking to investigate. The employer contends, contrary to
the employee’s assertions, it was not obliged to give reasons for termination
of the contract.
From
counsel’s submissions, this court must primarily determine whether and to what
extent an employer after the 1994 Constitution, which in section 31 introduced
a right to fair labour practices and before the Employment Act, which
introduced the statutory remedy of unfair dismissal, an employer who terminates
employment according to the contract of employment is liable to an employee.
The sequel question is whether and in what circumstances should an employer
after the 1994 Constitution, which in section 31 introduced a right to fair
labour practices, give reasons for terminating employment.
First, the plaintiff legal practitioner
argues the employer, under section 43 of the Constitution, should allow the
employee to answer allegations against him.
In particular he contends the employer could not dismiss before concluding
promised investigations. He submits this Court’s and the Supreme Court’s decisions
on application of section 43 to employment contracts are uneventful. The defendant, relying on them heavily,
contends the decisions are correct and bind this Court. Section 43 provides:
“Every person shall
have the right to lawful and procedurally fair administrative action”
The employee contends that, under
natural justice principles, he was entitled to fair administrative action and
the employer could not terminate the contract without giving reasons or
terminate the contract before investigations concluded. He contends therefore
that the employer breached his right to procedurally fair administrative
action. The defendant argues this runs against
this Court’s decision in Saukila v the
National Insurance Company Limited, Civil Cause No. 117 of 1997
(unreported). In that case Kapanda, J.,
following Mchawi v Minister of Education
Science and Technology, Civil Cause No. 82 of 1997 (unreported), this
Court’s decision, and Chawani v The
Attorney General, MSCA Civil Appeal No. 18 of 2000 (unreported), a Supreme
Court decision, said:
“I wholly agree with
the dictums of both Kumitsonyo, J. (as he then was)
and Tambala, J.A. It is clear, in my judgment, that after reading the decisions in these two
cases that section 43 applies to situations where there is an abuse of
executive arm of government and no more.
Further, it is my understanding that the said section 43 of the
Constitution is intended to provide protection to persons from potential arbitrary executive action.”
In
the Supreme Court, in Chawani v The
Attorney General, Tambala, J.A., said:
“…We are unable to
accept that the purpose or function of section 43 of the Constitution is to
protect an individual’s legitimate expectations. If the section was intended to afford such
protection, then clearly, such intention was not stated in the section. Section 43 simply gives a person (i) a right
to lawful and fair administrative action and (ii) a right to be given reason
including written reasons which must support an administrative action. It is true that the two rights arise where a
person has some right, freedom or interest or legitimate expectation which is
likely to be affected by the administrative action, but it seems that it is not
the purposes of section 43 to protect such right, freedom, interest or
legitimate expectation. If the section
affords such a protection, then it does so only indirectly or
incidentally. In our view, section 43 of
the Constitution is simply an entrenchment of the principle of a natural
justice which requires that no person shall be condemned without being heard. The section has of course, stretched the
principle a bit to include the requirement to give reasons which must support
an administrative action…”
I abstain distending the argument that
section 43 does not apply to situations like the present where there is no, so
to speak, executive or administrative action.
There is however a window in Justice Tambala’s statement. The Justice of
Appeal stresses that section 43 of the Constitution entrenches principles of
natural justice. Certainly a right to natural justice does not only apply, as
suggested, only against persons responsible for executive or administrative action.
Principles of natural justice apply widely in public and private law. If, as the Justice of Appeal suggests,
section 43 of the Constitution entrenches principles of natural justice, the
right under section 43 cannot be constricted in the manner suggested. I leave the argument for future consideration.
It suffices to say that the trend is to incorporate natural justice in
employment situations.
The latest decision is Nkhwazi v Commercial Bank, Civil Cause
No. 233 of 1999, (unreported) where this Court said:
“Even if there are no
contractual safeguards, courts, notwithstanding Lord Reid’s suggestion in Ridge v Baldwin [1964] A C 40, 65 and Malloch v Aberdeen Corporation [1971] 2
All ER 1278, that courts will not readily do so, now readily imply natural
justice principles in employment cases, particularly where a reason is given
for the course of action the employer took.”
This
Court relied on words of Buckley, L.J., in Stevenson
v United Transport Union [1971] 2 All ER 941, Woolf, L.J., approved in R v British Broadcasting Corporation, ex
parte Lavelle, [1982] 404:
“In our judgment, a
useful test can be formulated in this way.
When one party has a discretionary power to terminate the tenure or the
employment of another or an office or a post or a privilege, is that power
conditional on the party invested with the power being first satisfied on a
particular point which involves investigating some matter on which the other
party ought in fairness to be heard or to be allowed to give his explanation or
put his case? If the answer to the question is yes, then unless, before the
power purports to have been exercised, the condition has been satisfied after
the other party has been given a fair opportunity of being heard or of giving
his explanation or putting his case, the power will not have been well
exercised.”
Apart
from this statement, the trend has a long pedigree, particularly in relation to
Trade Unions beginning with Abbot v
Sullivan [1952] 1 All ER 226 and Lee
v Showmen’s Guild of Great Britain [1952] 1 All ER 1175 , CA. In Russell v Duke of Norfolk [1949] 1 All
ER 109, Lord Denning asserted it was contrary to public policy to ‘condemn a
man unheard’ so that irrespective of contract, a union was bound to
observe natural justice principles – at
least when a man’s livelihood or reputation is at stake.
Even without section 43, therefore, the
court would import natural justice principles in an employment contract. These
principles are part of the general law. They are therefore subservient to and
derive from the Constitution. It is anomalous to suggest that the Constitution,
the fundamental law, entrenches laws made under it. Natural justice principles
reflect the fundamental law, the Constitution, which, in many parts, reflects
due process.
Secondly, the plaintiff’s legal
practitioner argues that failure to give reasons for termination of employment
offended section 31 of the Constitution.
He contends that a contract which provides termination of employment without
giving reasons violates the spirit of the Constitution and violates fundamental
human rights. He submits Guwende v AON Malawi Limited, Miscellaneous
Civil Cause No. 25 of 2000 (unreported), this Court’s decision, is per incuriam, it not having been put to
the judge that the law, by section 211 of the Constitution, changed. In Guwende
v AON Malawi Limited, Chipeta, J., following this Court’s decision in Mwalwanda v Press Holdings Ltd [1981 –
83] 10 MLR 321 and the English case of Barber
v Manchester Hospital Board [1958] 1 All ER, 322 held that no reasons be
given for termination of employment:
“Further still, many
local case authorities, including the cases of Chihana and Chanamuna
above cited, after a review of persuasive precedents, firmly state the law as
being that termination with notice or with payment in lieu of notice, is valid
and that it need not be accompanied with any reasons. Said Justice Mtegha in the Chihana case:
“Where there is an
ordinary contractual relationship of master and servant, in the ordinary sense
that we know it, the matter can terminate the contract with his servant at any
time and for any reason; he is not even obliged to give reasons for so doing.”
Moreover on the
existing authorities even the fact that a contract of employment is for a fixed
term, does not change matters if there is in it a termination clause as
indicated by the Hon. Skinner, C.J. in Cotrim
v Dos Santos [1973 – 74] MLR, 111, a case in which such clause was,
however, absent. Courts have been
steadfast in holding that no matter how permanent a species of employment
appears to be, in the absence of clear language that it cannot be terminated,
it should be construed as one that can be determined by reasonable notice. See MSCA, Civil Appeal No. 13 0f 1992 Malawi Railways Limited v P T K Nyasulu
(unreported)”
To the criticism the judge’ decision
was per incurium, the judge did
consider international conventions and treaties:
“In this regard
section 211 of the constitution is illuminating. In this case no specific Act of Parliament
was referred to or cited as ratifying the ILO Convention part of the laws of
Section
211 (2) of the Constitution provides:
“International
agreement entered into before the commencement of this constitution and binding
in the Republic shall form part of the law of the Republic unless Parliament
provides otherwise.”
Certainly,
“(1) Any international agreement entered into after the
commencement of this Constitution shall form part of the law of the Republic if
so provided by or under an Act of Parliament.
(2) Binding
international agreements entered into before the commencement of this
Constitution shall continue to bind the Republic unless otherwise provided by
an Act of Parliament.
(3) Customary
international law, unless inconsistent with this Constitution or an Act of
Parliament, shall form part of the law of
The
uncertainty in section 211 (2), before the amendment, mentioned earlier still
remains. International agreements after 1994, by legislation, and international
customary law, automatically, become part of our law by domestic legislation.
The words ‘become part of our law’ in the previous section 211 (2), and
repeated in the new 211 (1) and 211 (3) have been dropped in the amendment. The
‘Binding’ aspect of the provision remain in section 211 (2) before and after
amendment. This Court then has to interpret the meaning of the word ‘binding’
in relation to whether international agreements before the 1994 became part of
our law.
There are two views. The first is that
the word ‘binding’ in section 211 (2) before and after amendment, in relation
to whether international agreements before 1994 are part of our law, means
there must be domesticating legislation. The section does not suggest that.
Neither is that the ordinary meaning of the word ‘binding.’ This postulation
can only be premised on importation of a premise external to the Constitution,
namely, that, under international law, which suggests variegated practices by
international law players, and our foreign relation practice, this is the case. International law is not superior to our
Constitution in its application in our courts. Equally, our foreign law
practice is itself subservient to the Constitution. Both, therefore, are only
aid interpretation. They would not be decisive on the matter under
consideration because in both sections it is also possible to read the
provisions as suggesting that, as long as it can be established that
international agreements bind the Republic under international law, in the
sense that the Republic ratified them, they are part of our law, unless an Act
of Parliament provides differently. The effect of this is that all
international agreements before 1994 binding on the Republic are part of our
law.
Concluding that all binding
international agreements are by operation of the Constitution part of our law
can be criticized for accepting too much. The excess is mollified, in my view,
by that Parliament, under the Constitution, can exclude objectionable
international agreements from laws of the Republic. A rule targeting only international agreements
domesticated by legislation is guilty of accepting too little. The paucity is placated
by the rule that Parliament can introduce by legislation international
agreements not so affected before 1994. Parliament, under this construction,
has the monumental task of domesticating international agreements binding on
the Republic before 1994 and after 1994. Parliament can do that. The
Constitution as amended, however, decided for a break in 211 (1). This
provision supports the second view.
The second view is that binding
international agreements before 1994 became part of our law by operation of the
Constitution. The uncertainty in section 211 before the amendment is cured by
the amendment. Section 211 (1) as amended expressly states that international
agreements entered after commencement of the Constitution shall form part of
our law by domestic legislation. If it meant prior international agreements
required domestic legislation, the Constitution would in section 211 (1) have
added qualifications to the effect that all international agreements before
1994 would, like the ones after, need domestic legislation. The Constitution
restricts the requirement to legislation after commencement of the
Constitution. On the face of it the Constitution excludes prior international
agreements in section 211 (1). In my judgment, the Constitution, in section 211
(2), stresses the non-requirement of domestic legislation for international
agreements prior to commencement of the Constitution. Moreover, if it was meant
that domestication by legislation apply to international agreements prior to
1994, the Constitution would expressly have said so in section 211 (2) having
omitted it in section 211 (1). This interpretation bases on the construction of
section 211 before and after the amendment. It is not based on an external
premise.
The second rendition is further
enforced on two premises. First, before the amendment, these binding
international agreements ‘became part of our law’ through the Constitution. The
consequence of amendment cannot be to
repeal all previous international agreements that were part of our law by
operation of the Constitution in 1994. Secondly, the consequence of the new
amendment means that our Parliament has been estopped from ever adopting
unbinding international agreements before 1994.
In my judgment, a court will take
judicial notice of treaties binding on the Republic. The Termination of
Employment Convention was a binding agreement before the 1994 Constitution.
There is no legislation nullifying it. It is part of our law. For all we know
now, its contents inform the Employment Act.
The Termination of Employment
Convention is couched in modern terms because its dictates could be furthered
by judicial and legislative involvement.
Article 1 provides:
“The provisions of this
Convention shall, in so far as they are not otherwise made effective by means
of collective agreements, arbitration awards or court decisions or in such
other manner as may be consistent with national practice, be given effect by
laws or regulations.”
In
the absence of laws, statutes, or regulations, therefore, courts decisions make
provisions of the Termination of Employment Convention effective. This Court is therefore conjoined to
incorporate article 4 of the Termination of Employment Convention enjoining
employers not to terminate the employment of an employee unless there is a
valid reason for such termination connected reason for such termination
connected with the capacity or conduct of the employee or based on the
operational requirements of the undertaking.
The Employment Act, passed after Guwende
v AON Malawi Limited, incorporates article 4 of the Termination of
Employment Convention in section 57:
“The employment of an
employee shall not be terminated by any employee 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.”
Consequently
it was the more urgent at the time Guwende
v AON Malawi Limited was decided to incorporate article 4 of the
Termination of Contract Convention by judicial decision because neither the
Employment Act of the time and regulations there under and the common law, as
demonstrated, reflected article 4 of the Convention.
The second criticism of Guwende v AON Malawi Limited is that it
offends section 31 of the Constitution particularly the right to fair labour
practice. The judge considered section
31 of the Convention:
“In particular, I
observe, that neither in the Constitution nor in the Labour Relations Act is it
spelt out that for parties to agree on a termination clause in their employment
relationship to end on notice or on payment in lieu of notice without more
amounts to an unfair labour practice.”
Section
31 of the Constitution, a fundamental law, only creates a right. The
Constitution cannot achieve the specificity suggested. The Constitution cannot
provide such detail without it being the law and not the fundamental law. It is
the general law, legislative or common law, which governs the legal status of
agreements that do or do not require reasons for termination of an employment
and, as the judge rightly observed in many places, the common law position, now
superceded by section 57 of the Employment Act, is that an employer or employee
need not give reasons for terminating employment under terms of the contract
such as terminating with notice. The fundamental law could not provide for this
specific matter. The question, which I will consider in due course, remains
whether and to what extent this common law rule affects the right to fair
labour practices in section 31.
The
judge continued:
“In fact if it was, I
would have expected that in the Chidzulo
case the Supreme Court would have seized the opportunity to so pronounce as the
main issue for consideration in that case was a provision allowing for
termination on notice or on a payment in lieu of notice… To my mind the fact
that despite the opportunity the Supreme Court did not pronounce this type of
agreement as offending section 31 of the constitution shows that the practice
of incorporating such clauses in employment contracts does not offend that
constitutional provision.”
There
are reasons why the Supreme Court avoided pronouncement. The matter was not
raised in the form raised before this Court. The Supreme Court probably avoided
making a statement obiter. That
silence cannot be pronouncement of a positive principle suggested. Certainly,
this Court in the Guwende’s case,
unlike the Supreme Court in the Chidzulo case,
had the opportunity to make a pronouncement and avoided it.
The question remains whether and to
what extent the common law rules stated affects the fundamental right in
section 31 and if so how. The common law rule that a termination under the
terms of the contract, for example termination by notice, is valid should, of
course, be distinguished from the other common law rule that the employer need
not give reasons for termination of the contract. At one level terminating a
contract under the terms of the contract may be all the reason the common law
requires. A letter terminating an employee’s employment and indicating that the
employment is terminated under contractual terms, in my view, gives a reason
for termination of employment. The reason, like any other, can be challenged on
many grounds including, one that easily comes to mind, that it is in breach of
contract as to termination as where, for example, the contract required
termination on certain conditions. Where the terminating party, albeit by
notice, is in fundamental breach of the contractual termination terms, the
employment only ends at the election of the innocent party. Where the termination
is not in breach of any contractual termination term, the termination is valid.
This rule is distinct from one about giving reasons for termination of employment
generally and specifically where the employer terminates under contractual terms.
Giving reasons for terminating a
contract is related to the right to natural justice. The employment contract,
like other contracts, creates contractual obligations. A contract, like most
contracts now do, could specifically state that the right to natural justice
would apply. Few problems arise there. The converse, namely that parties can
contract out the right to natural justice principles, must be a nice question.
In John v Rees [1969] 2 All ER 274
Megarry, J., thought if the right to natural justice can be excluded, there
must be very clear words. John v Rees and
Breen v Amalgamated Engineering
Requiring reasons, because of the
right to natural justice, becomes, as this Court pointed out in Nkhwazi v Commercial Bank, stringent
where, on the facts, the employer, as here and in the Nkhwazi case, terminates under the contract and accuses the
employee of misconduct. Where the employee committed misconduct, terminating employment
under the contract is a favour. Where the employee protests the misconduct
either because the employer overlooked fairness procedures or, where followed,
truth was mulcted, the potency of the rule about termination
according to terms is muted indeed. The law as is protects the employer. In
“The issue will
usually revolve around whether the servant’s breach of contract was
repudiatory: whether it was sufficiently serious to justify dismissal. That
depends on the circumstances: see e.g. Laws
v
Our Employment Act now introduces
unfair dismissal and, in circumstances under consideration, termination of
employment in accordance with the contract, although lawful and not a wrongful dismissal
at common law, could be unfair under the Act. The statutory remedy of unfair
dismissal was not there when this action commenced. The action however commenced
after the 1994 Constitution. The 1994 Constitution creates in section 31 a
right to fair labour practices.
The plaintiff’s counsel contends that
a contract providing termination of employment without reasons offends this
right and is unconstitutional. The terms of this employment contract, contrary
to what both counsel submit, do not provide termination without reasons. The
contract is silent on the need or not for reasons. The three versions of the term produced in this Court have similar
wording. One reads, “Either party can terminate the employment by giving the
other 3 months notice in writing or in lieu of by payment of three months
salary”. The other reads, “either the
employee or the company can terminate the employment by giving to the other
party three moths notice in writing to that effect, or in lieu of by payment of
three months salary.” The last reads,
“The employment may be terminated by either the employee or company giving to
the relevant other party one months notice in writing to that effect or in lieu
thereof of one month salary.” All
provisions do not provide that the employer or employee has or has not to give
reasons for termination of employment. As stated earlier, terms,
excluding rights to natural justice, and the ones here don’t, would be contrary
to public policy.
The question counsel poses entails
considering the effect of the common law rule that an employee need not give
reasons when terminating employment under contractual terms on an employee’s right
to fair labour practice under section 31. No problems arise from the innocuous
part of the rule, namely, where the parties are ad idem. The problem arises where
the employer’s termination masquerades an unfairness which only a right to
natural justice can disgorge. Counsel submits the rule violates the right to
fair labour practices and is unconstitutional.
The right to fair labour practice,
however, is derogable. Law can limit it. Law here includes statute, common law
or customary law. The common law rule should be understood as limiting the
right to fair labour practices. The Constitution does not define ‘fair labour
practices.’ The words entail practices that are evenhanded, reasonable, acceptable and expected from the standpoint of the employer,
employee and all fair-minded persons looking at the unique relationship between
the employer and employee and good industrial and labour relations. Laws
limiting this right must, according to section 44 of the Constitution, be
reasonable, not offend international human right standards and must not wholly
abrogate the right. In my judgment a law, contractual or otherwise, that allows
an employer not to give reasons for termination of employment where to all
fair-minded people reasons should be given to enable challenge or principles of
natural justice to run is unreasonable. It certainly offends international
human right standards in article 4 of the Termination of Employment Convention,
a body of international human right law. In my judgment where, like here, the
employer terminates for misconduct, the reason for termination must be given.
Terminating without giving reasons, in such circumstances, is an unfair labour
practice, entitling the employee to remedies under section 44 of the
Constitution.
Problems ensuing without the rule justify
this conclusion. Not only are principles of natural justice undermined, without
such a rule, an employer could successfully terminate purely on race, gender,
political ethnic considerations, for example. That is why the Employment Act
and international human right standards only accept the two reasons for
termination, reasons related to capacity and conduct and demand the employer
give the employee opportunity to answer the allegations. These principles are undermined
by a rule not requiring reasons where in all fairness the employer should give reasons.
To the question whether after the 1994
Constitution introduced a right to fair labor practices and before the
statutory remedy of unfair dismissal in the Employment Act an employer who
terminates according to the contract could be liable to an employer, I answer
in the affirmative. Where the employer acted fairly, cadit questio. Acting
fairly means more than acting according to the law. The employer’s action, even
if lawful, could be contrary to fair labour practice. This Court has
jurisdiction to test any practice for compliance with the Constitution and the
human right regime under the Constitution and international human right law. In
legal parlance, an employer who loses a wrongful dismissal action, could
nevertheless succeed under section 31 where, for example, apart from
contractual obligations, the employer terminates without giving the employer a
fair opportunity of being heard or giving his explanation or putting his case.
The employer is liable to the extent that she never acted fairly and congruous
to fair labour practices. This rule is more applicable to matters after 1994
and before the Employment Act introduced the statutory remedy of unfair
dismissal. After this Act, an employee who loses a wrongful dismissal action
could nevertheless succeed in an unfair dismissal action. The rule is however
the more important where, in my judgment, an employer, in accordance with the
contract, terminates with notice to suppress fairness considerations. Even
without the Employment Act, the right to fair labour practice in the
Constitution comports fairness in termination of employment. Even a lawful
termination can be questioned for fairness. Consequently, a lawful dismissal
can be questioned under the Constitution for fairness.
To the sequel question whether an
employer, after the 1994 Constitution, which in section 31 introduced a right
to fair labour practices, give reasons for terminating employment I also answer
in the affirmative. I hasten to point out that an employer, who according to
the terms of the contract of employment, terminates the contract of employment
is giving reasons for termination of the contract. Where, therefore, the employer and employee
are ad idem the termination is valid
and coheres with the common law principle that the employer need not give
reasons when terminating the contract.
The rule has to be reformulated where,
as often happens and happened in this case, the employer is terminating because
of the employees misconduct. In those circumstances, in my judgment, it is not
enough that the employer terminates in accordance with the terms of the
contract of employment. Principles of
natural justice and fair labour practices require that the employee knows the
underlying reason for termination of employment. Where the employer has acted fairly giving
the real reason for termination is fair labour practice. Where the employer has not acted fairly as,
for example, where the employer has overlooked procedural fairness, it is good
industrial practice that the court investigates the fairness of the procedure
and conclusion on the alleged misconduct.
It is for this reason that international
human right standards and now the Employment Act require not only that reasons
for termination be given but that the employee should be given a fair
opportunity to answer to the allegations and present an explanation to the
allegations. In the latter
circumstances, in my judgment, a rule requiring the employer not to give
reasons for termination of employment would be contrary to public policy
because it undermines an employees right to natural justice. In my judgment I cannot countenance a
contract that would, without criticism that it is contrary to public policy and
unfair labour practice, contract out the right to natural justice. A rule not requiring an employee to give
reasons would be an unfair labour practice to the extent that, even though the
employer is within the terms of the contract, it overlooks fairness issues.
On the facts of this case, it is clear
to my mind that the letter terminating the employment gave as a reason for
termination the terms of the contract.
It is clear however, from the letter preceding of termination and the
events before this that Mr. Kalinda, who the evidence shows to have had a long
and illustrious career with the employer company, was suspended because of an
allegation that he stole cement from a company on the premises of Limbe Leaf
Tobacco Ltd. In my judgment, given the
nature of the allegation, Mr. Kalinda’s long and illustrious service with the
company and the threat to Mr. Kalinda’s livelihood and reputation, that more
should have happened. It is true that in
both the discussions before and the letter of suspension the employer brought
the reason for termination to the employee.
Admittedly, it is beneficial to the employee that the reason for
termination is not put in the letter of termination. In my judgment, in this particular case, the
reason for termination was put to the employee.
What I understand Mr. Kalinda to be complaining about is that he was not
given an opportunity to answer the allegations, serious and consequential as
these have been shown to be, made against him.
The unfairness therefore is not in that the employer never gave reasons
for termination of employment. The
unfairness is in that procedurally Mr. Kalinda was not given an opportunity to
answer adequately to these serious allegations.
The original understanding of the
concept of natural justice is based on public law and understanding that the
procedural fairness required should be as close as possible to the juridical
process. It is clear that rigidity need
not be in cases of the nature this court is dealing with suffice to say that
the extent to which the right to natural justice has been achieved in a
particular case will depend on the nature of the allegation, the evidence in
support and other surrounding circumstances. Obviously, more is required for
serious allegations which affect the reputation and livelihood of an
employee. The question in this matter
therefore is whether, as employee contends, Limbe Leaf Tobacco Ltd did abide
with principles of natural justice matching the allegation leveled against Mr.
Kalinda.
For all we know, all that happened in
this matter, in terms of providing Mr. Kalinda with an opportunity to answer
adequately to the allegations against him was as follows. Mr. Kalinda, the driver and off-loader
appeared before the Auditor and other Limbe Leaf officials. After the oral submissions the three, as
required, made reports. There is very
little evidence as to the conclusions reached at these meetings. Mr. Muhura, the company secretary, in his
evidence stayed clear of suggesting that the subsequent decision to terminate
the employment was in any way related to
the findings of these or subsequent meetings. The company refused to investigate whether,
as Mr. Kalinda requested all along, there was theft of cement at Mere Building
Contractors who were on the company’s premises.
The employer has not established in this court that there was a
reasonable ground for thinking that Mr. Kalinda stole the cement, if it was
stolen at all. Mr. Kalinda was informed
that investigations would continue.
These were not continued until the letter of dismissal.
In my judgment, while the company did
establish a modicum of investigations, Mr. Kalinda’s complaint that he was not
given an adequate opportunity to answer the serious and consequential
allegations against him appeals to this court. Definitely Mr. Kalinda should
have been invited to learn the conclusions of the investigations so that, if as
it appeared to be, he was guilty of the misconduct which, in my judgment,
justified summary dismissal, he should have adequately answered to it. I come to the conclusion that the modicum of
enquiry and treatment of Mr. Kalinda fell short of adequately providing the
employee with an opportunity to answer the allegation of the nature made
against him.
Once it is established that a right
has been violated the citizen is entitled to an adequate remedy in a Court of
law. Section 46 of the Constitution,
apart from the Employment Act passed several years after commencement of this
action provides for remedies for violation of fundamental rights such as the
right to fair labour practices under section 31. Under section 46 (3) of the Constitution the
Court can make such orders as entail full enjoyment of the right which, in the
context of employment, include, before the Employment Act, reinstatement. In principle, in my judgment, reinstatement
should be automatic where employment was terminated on grounds of
discrimination on the basis of race, gender, political consideration or
ethnicity where the employee wants to continue irrespective of what the
employer was. Where the right violated
is none other than discrimination, reinstatement should only be ordered where
the employer and employee are willing to continue the employment
relationship. Consequently, award of
compensation under section 46(4) of the Constitution should be resorted in the
majority of cases.
In my judgment, as demonstrated in Nkhwazi v Commercial Bank of
The purpose of the award under section
46(4) of the Constitution for violation of fundamental rights under the
Constitution should be to adequately compensate the victim. The award should meet the purpose this Court stipulated
in Tembo v City of
“The policy behind
damages is, where it is possible and money can do it,
to fully compensate the victim for the new situation in which he is because of
the wrong done to him… If the problem of remoteness has been overcome and it is
decided that the victim is entitled to recover, courts endeavour to adequately
compensate the victims.”
In my judgment the award for
compensation under section 46(4) of the Constitution must be just and equitable
in all circumstances of the case and, in relation to employment have regard to
the loss sustained by the employee in consequence of the termination so far as
that loss is attributable to the action of the employer which for now has been
proven unfair.
The
principles on which courts should award employees for unfair termination under
section 31 of the Constitution have to be developed by the courts who must in
my judgment consider all losses the employee has and may suffer as a result of
the termination which now has been proven unfair. The matter has, of course,
been made much easier after the Employment Act. The principles may not, in my
judgment be any different.
In case of an unfair
termination the immediate loss, in my judgment, is the loss of what the
employee would have earned if for some good reason the employer would cease to
operate or declare the employee o. This approach bases on Norton Tool Co Ltd v Tewson. In some cases this might mean, where there are
redundancy statutes, redundancy payments and, where there are no redundancy
statutes, what is due in those circumstances may be, as this court pointed out
in Phoso v Wheels of Africa, Civil
Cause No. 1792 of 1995 (unreported), a contractual consideration. The Employment Act, passed after the
commencement of this action, provides for compensation for unfair dismissal in
section 63. This action commenced before the Employment Act. Where there is no
evidence that redundancy was a matter of contractual arrangements, this Court
since Marriette v Sucoma Limited Civil
Cause No 1341 of 1996 (unreported) and recently in Nkhwazi v Commercial Bank of Malawi Limited Civil Cause No. 233 of
1999 (unreported), bearing in mind, criticism against applying the Employment
Act retrospectively, has been guided by the lead taken by Parliament.
Apart
from this immediate loss the court must make a compensation award under sections
41 (3) and 46 (4) of the Constitution for violation of section 31 of the
Constitution must address all possible future losses arising from an unfair
termination of employment. For about three decades the loss has been restricted
to financial loss: Norton Tool Co Ltd v
Tewson. Lord Hoffman thought differently: Johnson v Unisys [2001] IRLR 279. Compensating for financial loss is
a complex. It involves a speculation about the employee’s future job prospects
and all relevant circumstances that make the award equitable. In relation to future job prospects, few
problems arise where the employee finds another job. In that case the award
includes the losses, based on the employee’s current earnings up to the
commencing of the new job. Consequently,
the employee would recover nothing if he immediately finds a job. Problems arise where the employee has not
found a job because there it involves speculation as to when he might
reasonably, depending on the current job market, find in new job. Where the employee cannot, taking all
circumstances into account, find a job, adequate compensation entails that the
court award for this loss bearing in mind that the award is made well before it
is earned.
There
are many circumstances apart from the speculation about the employee’s future
job prospects that the court has to consider bearing in mind of course that the
onus of proof is on the employee to prove her losses and the requirement about
mitigation of damages. In determining
what is equitable, the court has to take into account the question whether, but
for the unfair termination, the employment would have continued, seized any way
either because dismissal could have occurred immediately or shortly thereafter.
There are many heads for losses arising from Magola v Press Corporation Ltd that for reasons expressed in that
same case, the matter should be adjourned to chambers for assessment of
damages.
Made
in open Court this 21st Day of November 2003.
D.F.
Mwaungulu
JUDGE