Former Alliance One employees living in abject poverty as appeal case stalls at Supreme Court

Former employees of the Alliance One Tobacco Malawi Limited have complained that they are living in abject poverty following the stalling of an appeal case where they were demanding payment of terminal beneifts from the company.

On 23 May 2018, High Court judge Dingiswayo Madise ordered the company to pay Grey Kansungwe and others their ‘employers’ pension contribution’ within 14 days in a case where the appellants sued in 2011 for unfair dismissal and unlawful withholding of the appellant’s benefits.

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The case, which has dragged for 12 years now, was initially brought before the Industrial Relations Court in Lilongwe where it was ruled in favour of the respondent – Alliance One Tobacco Malawi Limited, a development that prompted Kansungwe and others to appeal the ruling to the High Court.

The ex-employees argued that the lower court erred in law in failing to find that the appellant were unfairly/unlawfiilly dismissed; the lower court below erred in law in failing to find that there was discrimination against the appellants on the payment of employer’s pension contribution and that the the lower court below erred in law in holding that the respondent withheld the appellant’s pension contribution not on the basis of Clause 7.7 of the pension fund rules or any other rules, but it was aimed at offsetting against alleged loses incurred by the Respondent as a result of the strike.

The fired employees further argued that the lower court below erred in holding that by not electing to enforce claimed 7.7 mentioned above and the pension fund rules the respondent had waved their contractual right to use the said rules as justification for refusing to pay employers pension contribution to the appellant.

The ex-employees therefore prayed to the court to order that that the decision of the lower court be reversed in total. They also prayed that they be awarded costs of the appeal.

Judge Madise agreed with the ex-employees, observing that there was a disinclination of the highest order in the way the employer had handled pension payouts.

“In my considered view that clause fails to pass the constitutional test of fair labour practices. You cannot pay out everyone else who is dismissed except those who are dismissed summarily. This is disinclination of the highest order and cannot be allowed to prevail in this court. Additionally, the respondent has admitted that others who were summarily dismissed received the employer’s pension contribution. I now wonder why the appellants must not benefit,” he wondered.

“I therefore order that the respondent [Alliance One Tobacco Malawi Limited] pay out the Employers pension contribution to the Appellants effective when it became due with interest within 14 days. The rest of the appeal is dismissed. Each party to pay their own costs. Pronounced in open Court at Blantyre in the Republic on 23rd May, 2018,” ordered Madise.

But the company also challenged the ruling at the Malawi Supreme Court of Appeal. And since then, there has been no progress, much to the dismay and disappointment of the former workers.

Some of the living former employees said they fear that they will never get justice.

“It is saddening because along the way we have lost colleagues to death and their families are languishing for the pension money their husbands sweated for. Many worked for Alliance One for many years, but the company only chose to pay them with serious punishment,” said one of the former employees of Alliance One.

He added, “The judgement was very clear that by March/April 2021 all the necessary processes should be completed however to this date an appeal still has not been lodged. Prior to this Mr. Chapita Banda, who was the Registrar, to assist as petitioners followed up the case, but unfortunately he was moved elsewhere and a new Registrar was moved in, a Mr Daniels. When our lawyer went to meet the new Registrar, he was told to write a letter as a starting point. The lawyer submitted the letter but never got a response, he visited the court again but the Registrar feigned ignorance of the letter and demanded a copy which was also submitted.”

The former employee disclosed that the company is withholding their benefits exceeding K80 million for an alleged business loss amounting to K14 million.

“When you look at the amount citied as business loss it does not sit well to withhold amounts of money exceeding 80,000,000 for such a meagre loss which if indeed was the case dismissed employees were ready to accept the lost money be recovered as a fraction of their pension and have the remainder paid out. We sit without any form of recourse and hope as the courts have also let us down over the years with their handling of the matter,” he lamented.

Lawyers representing the plaintiffs, Eric Salima, and the respondent’s legal counsel, Davis Njobvu, confirmed the development, saying they are still waiting for the court to set the date for the case to resume.

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