Banja La Mtsogolo v Chiomba (33 of 2008) [2009] MWSC 39 (20 July 2009)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NUMBER 33 OF 2OO8 (Being High Court Ciuil Appeal No, 91 of 2007) (Also Being Matter No, IRC 227 of 2002) BETWEEN: BANJA LA MTSOGOLO. ... APPtrLLANT -AND. HARRIBT CHIOMBA.. .. RESPONDENT CORAM : THE HON CHIEF JUSTICE, SC, JA THE HON JUSTICE TAMBALA, SC, JA THE HON JUSTICE TEMBO, SC, JA Mr Kanyenda..... Counsel for the Appellant Mr Kara . . . . .. Counsel for the Respondent Mrs Matekenya"..... Official Interpreter JUDGMENT Tambala JA, The appeilant is Banj a La Mtsogolo a Non Governmental Organization engaged in family planning and the provision of health services connected with family planning. It empioyed the respondent, during the relevant time, as a clinic manageress. The respondent was managing the appellant's health clinic at Zingwangwa in the city of Blantyre. On 22"a February 2OO2, the appellant terminated the empioyment of respondent. On the 4tt' of June, 2OO2 the respondent brought an action against the appellant grounded on wrongful termination of employment, in the Industrial Relations Court. On 24th October, 2OO5 the learned Chairperson of the Industrial Relations Court dismissed the action on the ground that the appellant had discharged its obligation by paying the respondent three months salary in lieu of giving notice upon the termination of the employment. The respondent was dissatisfied and appealed to the High Court against the decision of the Industrial Relations Court. The appeal was successful and the appellant was ordered to pay the respondent severance allowance covering the number of years that the respondent worked for the appellant. The appellant was dissatisfied and brought the present appeal. J The facts of the case are that the appellant suspected the respondent to be engaged in acts defamatory of some members in the senior management of the appellant. The defamatory words were contained in several anonymous letters some of which were sent to the local press. The respondent was also suspected of leaking highly ciassified and confidential information to unauthortzed persons. We have no doubt that if the allegations were correct, the appellant was perfectly entitled to terminate the respondent's employment. The appellant on 15th November, 2OOI invited the respondent to a meeting where she was asked about the allegations. It would appear that she denied the accusations, but on the same day, the appellant issued a letter suspending the respondent from employment. The letter cited the same accusations as the reason for the suspension. Then, on 30th November, 2OOI the appeliant issued another letter to the respondent. The letter contained a serious warning and informed the respondent that if she did not improve she would have her employment terminated. Besides, the letter stated that the appellant's investigations confirmed that the allegations made against her were true. The respondent did not take the serious warning kindly. She wrote the appellant protesting about the decision to warn her. On 22nd February 2OO2, the appeliant terminated her employment. She was paid three months notice pay as well one month leave pav. The learned chairperson in the Industrial Relations Court dismissed the respondents' action, holding: It is now long established that damages equiualent to a salary in lieu of notice ere eu)arded to an employee tuhose seruices will haue been wrongfully terminated and tlnt that is because the penod of notice is the period at the end of tuhicLt an employer moA laufullg terminate an employment. See Council of the Uniaersitg of Mq.lausi a. Mkandawire J|[. S. C. A Ciail Appeal No. 88 of 2OO3 unreported. The learned Chairperson concluded by stating that having received payment in lieu of notice from her employers, the respondent could not be aliowed to turn round and commence an action claiming that her employment had been wrongfully or unlawfully terminated. We agree with the learned Chairperson that damages for the wrongful or unlau,fui termination of employment are restricted to what is calied notice pay, i.e, sa1ary or wages paid in lieu of notice required to be given before employment is terminated, That is the position under the common law. What happened during the tria-l of the action before the Chairperson in the Industrial Relations Court was this: Court: I notice that the claim ls fo, wrongful termination. The remedies for these ere at common law- notice paA equiualent. /s /his uhat Aou are claiming or Aou are claiming for unfair dismissal2 You maA amend or decide to proceed with tttis claim. Ngwira: I utill proceed orl the basis that this is a wrongful or unlaLuful dismissal. It would, therefore, seem that by choice learned counsel for the respondent decided to bring his action under the common law and sought damages for wrongful or unlawful termination of employment. The iearned counsel refused to amend the pleadings to base his action under the statutory tort of unfair dismissal. But in reversing the decision of the learned Chairperson Of the Industria-l Relations Court, the learned Judge in the Court below stated: "The Employment Act, 2000, is clear. It applies to the priuate sector and tlrc gouerrtment, inc\uding ang public authority or enterprise: section 2 (1 ), The new labour statutes created a new labour regime uLtich is not based on common law but Ltuman rights and equity. The said sub section creates one regime for all labour issues. This is clear from the decisions o/ the Supreme Court of Appeal: Ndema Vs Legtand DoIf MSCA No. 2 of 2OO6 and the High Court DHL Vs Aubreg Nkhato. Ciail Appeal No. 50 of 2004. Clearlg th-e common law approach is not congruent with tLrc new regime. It is the dutg of the courts Itoweuer to harmonies them qnd auoid discriminating litigants on the basis of how an action is instituted. In the present ce"se, it is clear, as it tuas to tlte trial court, tlmt counsel for the appellant had brought the Lurong heads. It uas open to the court under its inherent power to amend the pleadings to giue effect to the dispute. It is clear from the euidence on record thqt the claim uas for unfair dismissal notwithstanding the wag it utq"s stgled in pleadings. The litigant tuas before the competent court in terms of the Emplogment disputes. It was the duty of the court to giue effectiue remedg. Where the heads o/ claim ore urongly or improperlg titled, the court should accordingly amend them, more especially tuhere the court is a.wq.re of the error. This is the only waA that it can erLsure thot tlrc litigants' ight to access to justice a"nd effectiue legal remedies is protected.. section 4 i of the Constitution. In tlrc present case therefore, it tuas open to the court of its own motion, to amend the pleading in conformity tuith the Iabour Relqtions and Emplogment Acts. The courts should not knotuingly suffer a litigant to lose his or her right to a legal remedg just because of the d"efaurt of his or her counsel. we are unable to agree with the learned Judge in the court below that it was the duty of the chairperson in the Industrial Relations court to amend the pleadings on behalf of counsel for the respondent so that at the end of trial the learned chairperson could award the respondent proper remedies for unfair dismissal. we think that the learned chairperson fu1ly discharged her duty when she advised learned counsel for the respondent to amend his pleadings to base his claim on the statutory tort of unfair dismissal. But learned counsel refused to make the amend.ment. Could the learned Chairperson compel learned counsel to make the amendment? If she could not compel him would it be proper to take it upon herself and draft the amendment to counsel,s pleadings? Does the court's duty to give effective remedy to a litigant extend to actually doing the job of counsel even against the will and consent of such counsel? we do not think so. It must be appreciated that there is usuaily tension between the court's zeal to give a litigant effective remedy and the court's overarching duty to remain impartiai and neutral during lega-l proceedings. We think that care must be taken that the duty to provide effective legal remedy must not dwarf and undermine the duty to remain impartial. Nothing can be closer to partiality than taking over from counsel the dury to amend pleadings and discharging that duy on behalf of counsel for the benefit of his client. we are unable to beiieve that granting an effective remedy is to give a litigant a remedy which has not been requested. The requests of litigants are contained in their pleadings. In the present case the respondent requested damages for the common 1aw tort of wrongful termination of employment. She did not seek severance allowance. For the court, on its own to change the pieadings and substitute the claim for unfair dismissal for that of wrongful dismissal and to grant the relief of severance allowance, would be tantamount to giving a person an orange when that person asked for a mango. That surely is not what is meant by granting effective remedy. Nor is it a proper exercise of the court,s inherent power. It would probably constitute an abuse of the power of the court. we think that the iearned chairperson, in the Industrial Relations court, did not commit any error at all when she dismissed the respondent's claim. It was wrong in our view, for the learned judge, in the court below, to reverse her decision. The appeat is allowed. The respondent is condemned to pay costs both here and below. Pronounced in Open Court on .. ..day of ... 2OOg. Signed: L. G. Munlo, Chief Justice, SC, JA Signed: Signed: D. G. Tambala, SC, JA A. K. Tembo, SC, JA