Moyo v Registered Trustees of Lake Malawi Diocese of Anglican Church (IRC MATTER 16 of 2016) [2019] MWIRC 11 (28 March 2019)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY I. R. C. MATTER NUMBER 16 OF 2016 BETWEEN MRS CATHERINE MOYO .......... ian saws eattaceuass cle Se SINE ly 0S DANSE OA APPLICANT REGISTERED TRUSTEES OF LAKE MALAWI DIOCESE OF ANGLICAN CHURCH (ST ANNES HOSPITAL) ...........:.ccesseseceeeeesensoeeenes RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON MR KISSA MWAFULIRWA, EMPLOYERS’ PANELISTS ALEXANDER LUNGU, EMPLOYEES’ PANELIST MR LEONARD MBULO, APPLICANT'S COUNSEL MR EVANCE MBOTWA, RESPONDENT COUNSEL MR. W. MWENELUPEMBE, COURT CLERK JUDGEMENT The applicant commenced this action seeking the following reliefs: (a)Resumption of the applicant's monthly salary; (b) Payment of her salary arrears from the month of August, 2015; (c) An order quashing the eviction order of the Respondent as it was un lawful; and (d)An order that the purported revised “Terms and Conditions of Service” cannot operate retrospectively; and (e) Any other order this court shall deem fif and necessary in the circumstances. On the other hand the respondent filed a defence where among others, state that the applicant was their employee; that she asked for sponsorship for her further studies at Mzuzu University starting from her second year to the fourth year of her Bachelor of Science in Nursing and Midwifery; that the Respondent agreed to the request but put conditions such as signing a bond that after benefiting from the institution's sponsorship she was to work for the hospital for five years; and finally the Respondent pleaded that the ‘Terms and Conditions of Service’ that the applicant referred to does not exist at the institution as the applicant used a draft copy of the ‘Terms and Conditions’. LEGAL ISSUES (1) Whether the Terms and Conditions of Service of the Respondent of October, 2012 are the applicable regulations or a draft. (2) Whether the applicant's eviction from the institutions house amounted to unfair labour practices . (3) Whether the putting of the applicant on unpaid study leave after two years of her study violated the Terms and Conditions of her employment contract or any applicable law. (4) Whether the applicant is entitled to resumption of her monthly salary and salary arrears a she is still in the employ of the Respondent. APPLICABLE LAW IN RELATION TO THE FACTS Section 31 (1) 08 the Republican Constitution provides as follows: “Every person shall have the right to fair and safe labour practices and fo fair remuneration” In Guwende v. Aon Malawi, miscellaneous civil cause number 25 of 2000; Chipeta J, had this to say in relation to the above provision: “f must hasten to point out the constitution in general does not quite help us to define or categorize what safe labour practices are. In particular, | 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 unfair Labour Practice. While Constitution, the Labour Relations Act and other labour statutes in Malawi have not defined ‘Fair Labour Practice; it has been stated that it is the duty of the courts to expand on the brief content of section 31 (1) and that the term ‘unfair labour practices must be looked at from a ‘very wide perspective.’ See Katsabola v. Postmaster General, matier No. IRC 33 OF 2001. In the case of Kalinda v. Limbe Leaf Tobacco Limited Civil Cause No. 542 of 1995 (Unreported) H. C, the court held that: “The Constitution does not define “fair Labour Practices. The words entail practices that are even handed, reasonable acceptable and expected from the stand point 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 rights standard and must not wholly abrogate the right. The courts have also given examples of conduct that may be termed unfair Labour Practice. For instance, in Chilala and others V. Petroleum Services (mw) Ltd, matter No. IRC 158 OF 2000, the court said that the term unfair labour practice includes unfair conduct by the employer relating to promotion, demotion or training of an employee or provision of benefits to an employee. See also R. S§ Sikwese, Labour law in Malawi,Lex Nexis, 2010 pp. 21 — 24. Section 43 of the Republican Constitution provides as follows: “Every person shall have the right to — (a)Lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and (b) Be furnished with reasons, in writing, for administrative action where his or her rights, freedoms, legitimate expectations and affected. Thus, even before the Employment Act, the M. S. C. A, through the decision in Chawani v. A-G (2008) MLLR held that section 43 of the constitution only entrenches principles of natural justice, stretching the principles to include the furnishing of reasons to an employee for administrative action. The Court said: ‘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 persons” In the Kalinda case (supra) Mwaungulu, J. articulated his views of section 43 of the Constitution as follows: “(The Judges) stresses that section 43 of the Constitution entrenches principles of natural justice. Certainly a right to natural justice does not only apply, as suggested, against persons responsible for executive or administrative action. Principles of natural justice apply widely in public and private law. If .... Section 43 of the Constitution entrenches principles of natural justices, the right under section 43 cannot be constricted in the manner suggested.” ON BURDEN AND STANDARD OF PROOF The legal burden of proof as to any fact in issue in a civil case lies upon the party who affirmatively asserts that the fact in issue, and to whose claim or defence, proof of the fact in issue is essential. This is a sound rule in civil case, in which the law seeks to hold a neutral balance between the parties, and it has be said (Joseph Constatine Steamshipline v, Imperial smelting Corporation Ltd (1942) AC 154,174 per viscount Maughan) that it is ‘an ancient rule founded on consideration of good sense and it should not be departed from without strong reason’ The standard of proof required of any party on civil proceedings for the discharge of the legal burden of proof is proof on the balance of probabilities. This means no more than the tribunal of fact must be able to say, on the whole of the evidence that the case for the asserting party has been shown to be more probably true than not true. If the probabilities are equal, i.e., the tribunal of fact is wholly undecided, the party bearing the burden of proof will fail. See Miller v. Minister of Pensions (1947) 2 ALLER 372. And in order to determine whether a particular fact is true or whether it took place, the court takes the following approach explained by Lord Hoffman in RE_B (Children) (Care Proceedings: standard of proof } CAFCASS intervening (2009) 1 AC 11,(2). “If a legal rule requires a fact to be proved (a fact in issue) a judge or jury must decide whether or nof it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact eifher happened or it did not. If the tribunal is in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. lf the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened if he does discharge it, a value of one is returned and the fact is treated as having happened.” ON RULES OF CONSTRUCTION AND INTERPRETATION OF CONTRACTS It was expanded in the case of Melanesian Mission Trust Board v. Australian Mutual Provident Society (1996) 74 P&CR, 297, Privy Council, per Lord Hope as follows: “The approach that must be taken to the construction of a clause in a formal document of this kind is well settied. The intention of the parties is to be discovered from the words used in the document. Where ordinary words have been used, they must be taken to have been used according to the ordinary meaning of those words. If their meaning is clear and unambiguous, effect must be given to them because that is what the parties are taken and have agreed by their contract.’ And Lord Reid stated as follows in Pinner v. Everett (1969) 1 WLR 1266: “In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that itis proper to look at some other possible meanings of the word or phrase.” (Af P. 1273) Further Wright Dalton, J. in the case of Anchor Store Company v. Barron, 254 S. W., (1923), sets forth the five steps courts must follow when interpreting the language of a contract. (1) That the prime purpose is to ascertain the intention of the parties; (2) In so doing the whole instrument must be considered rather that segregated portions thereof; (3) If possible, a construction must be given which will give effect to all portions of the instrument; (4) If the language is plain and unambiguous, the intent must be gathered from the language use; and (5) If the language is ambiguous and doubtful then extraneous matters may be considered in determining the intent of fhe parties. ANALYSIS OF THE EVIDENCE IN RELATIONS TO THE LAW On the issue of whether the Terms and Conditions of Service of October, 2012 being refered to by the applicant, are the applicable regulations at the time the applicant was granted study leave by the respondent or were just draft copies, we proceed as follows: The applicant was justified to protest to Respondent's position as far as the letter advising her that she will receive her salary for a period of two years after which her name will be deleted from the payroll. The Respondent's argument that the copies of the Terms and Conditions of Service given to the applicant and other employees then were just drafts cannot be supported legally and logically. These were the Terms and Conditions of Service which were being in use all along and there was no any fundamental change to them. Page 2 of the said Terms and Conditions of Service is “Application of the Terms and Conditions of Service’ which shall apply to all members of staff of Anne’s Hospital. The amendment or repeal of the same can only be done by the Board of Trustees in consultation with the Hospital Management. Whenever the same is done, members of staff shall be notified of the charges accordingly. It is said “these terms and Conditions of Service supercede any existing Terms and Conditions of service and shall be effective 1st October, 2012. Nowhere is it indicated that they are draft copies pending the analysis and input of the members of staff. It would have been different if the copy relied on by the applicant was said to be provisional and the date fo which the terms were to come into operation were put as a future date. Nothing of that sort appears in this copy. The wording of page 2 of the copy relied on by the applicant is exactly the same as that of the one alleged to be the final copy. In fact the only change in the entire document is clause 8.7.4 which is the basis of the applicant's claim. Thus, the argument by the applicant that the Respondent's purported amendment is just aimed at defeating her claim and entitlements, is more plausible; Even the argument that it was illegal for the Respondent to convert her paid study leave to that of Unpaid study leave. As per clause 8.7.5 of the said Terms and Conditions of Service, un paid study leave was applicable only to those employees who are doing a course or training that has no bearing on, or is un related to the employee's responsibilities. The situation of the applicant fell in clause 8.7.4. The two Respondent's witness gave evidence to the effect that the copy relied on the applicant was a draft but they both failed to provide evidence of the minutes for amendment, variation or repeal/promulgation of the alleged final copy of the Terms and Conditions of service. They just said a mere stamp from the institution is enough to show that it is a final copy. When Mr Piyo Dimba, the Respondent’s witness, who is the Hospital Matron at the Respondent's St Anne's Hospital was cross — examined about the authority of the person who stamped and signed on the Terms and Conditions of Service, he failed to resoond properly. And on the status of the applicant's employment, he just said, it is ‘on hold’. So, from the facts and evidence herein, even if the Respondent can amend the said Terms and Conditions of Service, 2012, the members of staff ought to be notified of the changes. And when the amendment is done, as a general rule the same cannot operate retrospectively unless otherwise stated. In the case herein, no cogent evidence has been laid by the Respondent that the Board of Trustees, either by the Resoondent that the Board of Trustees, either alone, or in consultation with management sat to amend clause 8.7.4. and that members of staff were notified of the same. Further, as already alluded to above, no minutes for amendment or change have been presented by the Respondent to this effect. Thus, bringing the entire evidence to scrutiny with the applicable law, it is this court's finding that the copy presented by the applicant herein, i e, the Respondent's Terms and Conditions of Service, October, 2012 were the applicable rules and regulations at the time the applicant was admitted at Mzuzu University to study for Bachelor of Science in Nursing and Midwifery after recommendation from the Respondent's institution. To that end the putting of the applicant on unpaid study leave after two years of her study violated the Terms and Conditions of her employment contract and they amount to unfair Labour Practices. Coming to the issue of the applicant’s eviction from the institutional house, we proceed as follows: Clause 17, which is the very last clause of the Terms and Conditions, provides for the Respondent's housing policy as follows: “17.1 It is the policy of the Board to provide houses to key personnel, who by nature of their duties, must live near the hospital, at a minimum rental” “17.2. The hospital will have a housing committee, which will be responsible for allocating houses. In allocating houses, the housing committee will use criferia of (a) need of the employee, (b) seniority of the employee, (c) family size” A perusal of the written correspondence beiween the Respondent and the applicant reveal that the applicant was informed through a letter dated 6th January, 2014 that she will be expected to vacate the house after July, 2014 considering that four years of her training was a long period and the Hospital may be required to accommodate ofher staff. Again, through a letter dated 16' July, 2015, is Human Resources Management Officer, Mr O. D. D. Kapachika wrote her that ‘management hopes your husband, as a government employee, will surely be able fo find alternative accommodation around the Boma, as was earlier communicated to you’. So the applicant was made aware of this house vacation at the very out set of her studies. Further, the above clause 17, places the contractual discretion, on the Respondent to determine who gets what house and in exercising the said discretion the Respondent's housing committee must fake reasonable stipulated conditions. There is therefore no indefinite occupation of a house under the Terms and Conditions of Service herein. Even if there was such a one, the applicant who would be away for such a larger part of the year for her studies, the decision of the committee was not unreasonable in the circumstances. Therefore, there was no breach of the terms and conditions of service or her employment contract when the house was withdrawn from her. This head of claim accordingly fails and it is dismissed. On whether the applicant is entitled to her salary arrears and resumption of her monthly salary as she is still in the employ of the respondent we proceed as follows: Clause 8.7 of the Terms and Conditions of Service provides for study leave as follows: , “8.7.4: The employee on study leave will be entifled to salary and annual increments and leave”. “8.7.5: an employee who may wish to proceed on training or course which has no bearing on, oris unrelated to the employee's responsibilities may apply for unpaid leave”. In the present maiter, the applicant told the court that as of August, 2013, she had served the Respondent's Hospital for a period of 7 years, and she applied for a paid study leave as per clause 8.7.4 as the course she was selected to pursue at Mzuzu University was related to her studies as a Nurse and Midwife. However, the Respondent has been withholding her salary since August, 2015 although she was reporting for duties during vacations in line with clause 8.7.3 of the Terms and Conditions of Service which stipulates that: “An employee who is on study leave within Malawi shall be required to return to normal duty when a break or a long holiday occurs in the course of study.” The applicant gave evidence that she signed a five year bond with the Ministry of Health on 9th April, 2014 that she will return fo work at St Anne’s Hospital upon completion of her studies and she notified the Respondent of the development. She tendered the said scholarship contract as exhibit CM 6. Mr Willaim K. Banda who was the applicants witness gave evidence in this court that during the time of his retirement in the year 2017 he was the Principal Clinical superintendent for the Respondent's institution and knew the Applicant as a Nurse and Midwife Technician at the Respondent's hospital herein. He agreed with the applicant that the Terms and Conditions of Service which she tendered as CM3 is | the correct version for the Respondents institution which were promulgated and presented to the members of staff in October, 2012. He told the court that there were other hospital staff such as Mrs Martha Chongotera Gama and Mr P. Ganizani who were funded by Ministry of Health and signed a bond with the Ministry which required them to work at St Anne's Hospital after completion of their studies and that the institution welcomed the sponsorship of the applicant by the Ministry as they viewed it as a relief to them since they were on financial problems, The bond was that the applicant will still be at St Anne's for a period of five years. He went on to say that no member of staff at the Respondent's hospital was ever deleted from the pay roll apart from the applicant and that salaries for members of staff came from the Ministry of Health and therefore if does not make sense for the resoondent to stop and delete the name of an employee from the payroll when actually salaries are being paid by the ministry. He then tendered exhibits which were marked as WB1, WB2, and WB3 fo buttress his evidence which was not challenged in cross — examination on the aspect of salaries being paid by the Ministry of Health. Further, his evidence of the aspect of the applicants signing of a five year bond with Ministry of Health was corroborated by Mr. Yamikani Thombozi, the Respondents witness and Senior Human Resources Office at St Anne’s Hospital. In view of the foregoing analysis of the evidence and the applicable terms and conditions of service, it is the finding of this court that the applicant is entitled to her withheld salary, annual increments and leave from Augusi, 2015 to the present date. On the application for an order of the applicant's resumption of her salary, we note that the Terms and Conditions of Service were to the effect that the applicant would remain the employee at the hospital during her study leave with the right to refurn. This being so, we are of the view that the applicant can only start getting her salary once she reports back for work at the Respondents hospital. CONCLUSION Having found as above, the applicant succeeds in her prayer for an order that the Respondent's Terms and Conditions of Service of October, 2012 which she presented were the applicable rules and regulations of her employment contract during the time she was admitted for her Bachelors Degree at Mzuzu University. Secondly, the applicant also succeeds in her prayer for an order that she is entitled to her withheld salary, annual increments and leave from August, 2015 to date. The applicant fails in her prayer for an order that her eviction from the Respondents institutional house amounted to unfair labour practices in the circumstances of the case. The applicant also fails in her prayer from an order that the Respondent should resume paying her monthly salary when she has not returned jo the hospital to take back her position or fo resume work. Dated This 28th March, 2019 at Mzuzu. Right of Appeal Explained as per section 65 of the Labour Relations Act. K. D aie DEPUTY CHAIRPERSON MR KISSA MWAFULIRWA LIST hang MR ALEXANDER LUNDU LOYERS’ PANE oi EMPLOYEES’ PANALIST