Mbwana v Blantyre Sports Club (Civil Cause 1430 of 2009) [2009] MWHC 229 (11 September 2009)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1430 OF 2009 BETWEEN: MARY MBWANA..........cccssssesereesercerstersereetenseseseeaseeneeesenaes PLAINTIFF -AND- BLANTYRE SPORTS CLUB.........cccccssssssssssereeresseesteantees DEFENDANT CORAM: HON. JUSTICE M. L. KAMWAMBE Mr. Msuku of Counsel for the Plaintiff Mr. Mambulasa of Counsel for the Defendant Mrs Kamuloni Official Interpreter JUDGEMENT Kamwambe J By amended originating summons filed on 7th July, 2009 the plaintiff seeks a number of reliefs resulting from failure by the defendant to comply with the contractual terms of the probation appointment. The reliefs that the plaintiff seeks are as follows:- a} A declaration that an employee who completes his/her probationary period as provided for in the contract and continues working for months without extension of fhe probationary period and especially oaffer completion of maximum probationary period as provided for under the law is deemed confirmed. b}) A. declaration that an employer cannot unilaterally and without the consent of the employee alter the terms of the contract in particular fhe period of the contract and the post of the employee especially where the employee is a professional. c) A declaration that an employer cannot by any act reduce the employee's salary after due increment. d} A declaration fhat any employer who employs an employee on a probationary period basis with some benefits to accrue affer confirmation but allows the employee fo continue working for months after the lapse of the agreed probationary period and even after the maximum probationary perlod as provided by law without formally confirming him and giving him post confirmation benefits and changes fhe employee's post without his consent and further attempts fo alter the period of contract and also does an act which has the effect of reducing his/her salary fs guilty of unfair labour practices, e} A declaration that by their contract, the Defendnat herein confirmed the Plaintiff when sne finished her probationary period as provided for under the contract. f} A declaration that after fhe confirmation as stated in e) the Plaintiff was entitled to post probation benefits, g} A declaration that the Defendant could not unilaterally and without the consent of fhe Plaintiff alter her contract of employment in particular alter the period of the contract and change her post from being a Secretary to a receptionist. h} A delcaration that the Defendant could not in the name of implementing contractual benefits reduce the Plaintiff's salary after due increment. i} A declaration that by their conduct, the Defendant is guilty of unfair labour practices. j}) An order ordering the Defendant to restore the Plaintiff to her previous position of Secretary. k} An order ordering the Defendant to pay the Plaintiff in monetory terms all the post probation benefits she could have earned since fhe completion of her contractual probationary period and continue to do so. |} An order ordering the Defendant to pay the Plaintiff damages compensation for unfair labour practices. m) Costs of these proceedings. The brief facts of the case are that the Plaintiff was employed by the Defendant as a Secretary from Ist July 2008. The contract between the parties did not stipulate the period of contract. Further, the contract provided that the plaintiff shall be on three months probationary period after which, she shall be entitled to other benefits to which she was not entitled during probationary period. These include leave, medical did scheme and contributory pension scheme. After the lapse of the probationary period, the Defendant remained quiet and did not implement the post 3 probation benefits. The Plaintiff kept on asking the Defendant about the status of her contract until in around April, 2009 when instead of addressing the issue of confirmation, the Defendant decided to give the Plaintiff a one year fixed term contract. The fact of Plaintiff's inquiries and meetings with the Defendant’s officers is confirmed by the Defendant’s letter to the Plaintiff written on the day the originating summons herein were served on the Defendant. On Ist July, 2009 the plaintiff formally wrote the Defendant on her inquiries on the status of her employment and on implementation of the post probation benefits. On the same day, the Defendant wrote her removing her from the position she was employed for i.e as a secretary to that of a receptionist, notwithstanding that she was a professional secretary holding secretarial qualifications. All the time these things were happening, the Defendant had not implemented any of the post probation benefits but had just slightly increased her salary to K29,700.00 gross per month. However, on Ist July,2009 when the Defendant wrote the Plaintiff indicating that they would implement the post probation benefits, they indicated her salary to be K27,000.00. The several issues raised by the Plaintiff in her initial and supplementary skeletal arguments are as follows:- i, Whether an employee who has completed his/her contractual probation period and continue working for months thereafter and even receive a salary increment thereafter and even finish maximum probationary period as stioviated in the law without any stipulation of the extension of the same would be considered. still on probation or be deemed confirmed. ii, Whether such an employee as Is referred to infi) above is entittled to post probation benefits. iff, Vi. Vil. Vill. Whether an employee can unilaterally vary the terms of employment ie. change the penod of the contract and post of an employee with the effect of wholly changing his/her duties especially where the concerned employee is a proffessional. Whether an employer can do the acts referred to infill) above without giving any reasons to the concerned employee. Whether an employer can reduce the employee's salary after due increment. Whether an employer who fails or neglects or refuses to implement post probation benefits after the employee finishes his/her probationary period, unilaterally changes the contract period from being an open ended one fo a one year fixed one, removes an empolyee from _ his/her professional position to a lower position for which the employee has no training and eventually reduces his/her salary after the increment fs guilty of unfair labour practices, Whether an employer fin the present case the Defendant} had discretion to unilaterally extend probationary period without even informing the Plaintiff. Whether the Plaintiff herein was demoted. Whether the Defendant's board had _ the mandate bring any policy that would vary the Plaintiff's contract without her consent. Whether there was any understanding between the parties herein on the Plaintiff's demotion/transfer. xi. Whether the purported conditions of service herein exhibited as EBM3 bind the Plaintiff. xii, Even if the purported conditions bind the Plaintiff, whether they allow the demotion as was the case herein. xiii, Even if the purported conditions allowed the conduct as by the Defendant herein, whether such a ferm would be enforceable. xiv. Whether the Defendant could impose on fhe Plaintiff a disciplinary action without hearing her first. xv. Whether the matter herein is prematurely brought. These issues may seem many but an answer fo one may affect likewise the others or some as they are interrelated and intertwined. These supplementary skeletal arguments arose due to the affidavit in opposition by the Defendant which raised new issues. The Plaintiff of course duly filed an affidavit in reply to the Defendant's affidavit in opposition. On the first issue as to whether the plaintiff can be deemed to have been confirmed due to the fact she had completed her contractual probationary period and even worked for many months thereafter, should lead us to exhibit “MMI” (contract document) which indicates that the initial salary of the Plaintiff Is K27,000.00 gross per month and that appointment is on probation for a period of three months. Further it states that on satisfactory completion of the probationary period benefits like leave, medical aid scheme and contributory pension scheme would be made available. At part B the Plaintiff signed accepting the offer on 27 June, 2008. Indeed it is trite law that every contract is governed by its own terms. The terms governing the relationship of the parties to a contract of employment are a matter of private law and therefore any issues arising therefrom must emanate from the contract of employment iiself. Contracts of employment are also governed by the general principles of the law of contract. If was clearly put by the Supreme Court in Council for The University of Malawi v_ Urban Mkandawire Civil Aopecl No. 549 of 2000 as follows:- “We think it pertinent to say here that if is important to always remember that the general principles of the law of contract apply to the contracts of employment. And fhat if is also important to always remember that one of such principles is that the law of contract is concerned only with legal obligations as agreed by the parties themselves and not with any = ofher expectations however reasonable they might be.” The agreed period of probation is three months. The contract did not provide for a possibility of a further extension. Even if the maximum probation period by law under $26 of the Employment Act is twelve months, parties agreed on a three months probation period. This is quite in line with statute law which allows parties to agree on probationary period. Despite the Plaintiff making inquiries on the status of her employment vis-a- vis her confirmation, the Defendant chose to keep mute about it for 9 months. The Plaintiff even finished the maximum statutory period of 12 months and received a salary increment of K29?,700.00. Obviously the Defendant was in breach of the contract of employment by not informing the Plaintiff of her status soon after three months elapsed. The Defendant has alluded by way of justifying its conduct, to unsatisfactory performance of the Plaintiff. Let me make the position clear here. It was open to the Defendant fo write the Plaintiff terminating her employment due to unsatisfactory performance during probation or to write her proposing an extension of the probation period and let her accept to the proposal. The employer cannot extend the probation period unilaterally without the consent of the employee (see Y. S. Sumaili v Malawi College of Health Sciences Civil Cause No. 371 of 2007). In my considered opinion, for the employer to stay mute for months after the lapsing of the probationary period will be deemed tacit confirmation. The big brother syndrome that the employer determines all courses of action and that the employee is at ihe mercy of the employer will not augur successfully in the modern disoensation. The new constitutional order has brought another landscape which demands respect for the rights of an employee. For instance, $31 (1} of the Constitution provides that every person shall have the right to fair and safe labour practices and to a fair remuneration. That the Plaintiff was inquiring about her status after the probation period demonstrates that she felf vulnerable and unsafe. Hence practice would require that she be told in good fime her status. In my view it would be an unsafe and unfair labour practice for an employer for whatever reason, be if ineptitudeness of its own or underperformance of the employee to unduly delay or even fail to communicate to the employee her status after expiry of the probation period. lf a variation of the contract is desired the employer should communicate with the employee who should be heard on the issue (see $43 of the Constitution). It is not a defence for the Defendant to say ihe employee was underperforming and so after ihe contract period of probation they did nothing. If does not matter that the Defendant as employer was trying to give the employee an opportunity to change or improve. Always follow the dictates of the contract and if you infend fo vary it do if in the right way with the consent of the employee. All the time the sanctity of the contract must be respected and maintained. Actions of generosity to the other parity may not be a defence. | take it that after the expiration of 3 months the Plaintiff was confirmed, after all, she had worked by then for 18 months. As a result of the position taken above | do not see how an employer can unilaterally vary the employment contract and change the employees post without giving the employee reasons or without her consent or without hearing her. Even if the Defendant had found the Plaintiff not a fit Secretary the answer was not in giving her an inferior position of receptionist unless after discussions she consented to it. She had the right to be heard on the change of posts. This right is founded in $43 of the Republican Constitution. This right equally applies in employment cases. An administrative action affecting another person must be lawful and fair and be supported by reasons which must be given to the affected person in case the rights, freedoms, interests and legitimate expectations of such other person are adversely affected. It was stated in Malawi Environmental Endowment Trust v Kalowekamo (2008) MLR 237 (HC) at 242 by Justice Potani as follows:- MLLR “Although the contract of service did not requtre the appellants to give reasons for non-renewal of a fixed contract, in terms of section 43, the respondent had the right to be told reasons for the refusal to renew his contract.” What emerges out of this is more probably that parties may contract outside the statute but they can not be free to contract out of the Constitution. In our present case, the Defendant cannot just decide on its own without the consent of the Plaintiff to change the Plaintiff's position to an inferior one of receptionist. This would also apply to reduction of salary, but it does not apply herein because the Defendant has admitted that it was a mere mistake to quote the initial salary of K27,000.00 instead of K29,700.00. What is legally permissible can be tested as so whether it is fair in the manner things are done. This was lucidly put by Mwaungulu J in $. Kalinda v Limbe Leaf Tobacco Lid, Civil Cause No. 542 of 1995 where he said:- “Acting fairly means more than acting according fo the law. This court has jurisdiction to test any practice for compliance with the Constitution and the human fights regime under the Constitution and international human rights law, could nevertheless succeed under S31 where, for example, apart from contractual obligations, the employer terminates wifhout 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 fo labour practise. This rule is more applicable to matters after 1994 and before the employment Act introduced the statutory remedy of unfair clismissal.” Again my brother judge Chikopa J. had instructively this to say in Kachinjika v Portland Cement Co. (2008) MLLR, 161. “The duty of the courts in fhe new constitutional dispensation therefore is fo look not only at the dry letier of the contract of employment and ask themselves whether or not the terms thereof had been breached or not but also whether looked at if in its tofality fhe employers freatment of the employee was fair or not." Further Chilumpha argues in his book LABOUR LAW ait 125 — 6 as follows:- “Besides, since every employee has a Constitutional right to fair labour practices, a variation of the terms of employment shouid not be enforced if if amounts fo, or introduces, an unfair fabour practice. Clearly, any contractual provision which gives an employer unlimited power fo change any term of contract of employment at a whim and = without prior 10 notification to his employee, or which needlessly oppresses the employee, is not fair labour practice." In our present case the Plaintiff was introduced to an open ended contract of employment, and for the Defendant to emerge suddenly with a one year contract is definitely an unfair labour practice even under the guise that new management or Board had introduced fixed term contracts for senior staff. This is not what the Plaintiff signed for and the new arrangement was not sold fo her so that it was properly integrated in the system. The Board wovuid have no mandate to vary a term without her consent. Having already said that the Plaintiff would be deemed to have been confirmed after working for three months, it also follows naturally that she would be entitled to post probation benefits. The Plaintiff was by all means demoted by transferring her to a lower position of receptionist even if she received the same salary. She was so demoted without any reasons being given to her. This was an unfair practice. Demotion should mean reduction in either post or salary or both. The Plaintiff was adversely affected therefore the fact of demotion ought to have been explained to her rather than imposed, Non compliance with $43 of the Constitution leads to unsafe and unfair labour practices. She must have been given an opportunity to be heard on the fact of demotion. The conditions of service that were exhibited by the Defendant cannot be used for trial purposes because the Plaintiff says that she is seeing them for the first time. Most organisations take it for granted that once the employee has accepted the offer every thing ends there. The conditions of service are not at a latter stage shown to the employee. Not even a copy is leff with the employee for future 1 reference. The resultant mess should be blamed on the employer. However, even if the conditions of service were made to be binding on the employee/plaintiff, the demotion she had would still not be allowed. . In conclusion | find that the plaintiff has made out her case successfully and | award her all the reliefs sought with costs except the relief for damages for unfair labour practices which | feel not appropriate fo be granted separately. Made in Chambers this 11% day of September, 2009 ai Chichiti, Blantyre. iy Mt Vi it M. L. Kamwambe JUDGE 12