ooo - malawi · he submits that the said r30, ooo was a promise made by the respondent to the...
TRANSCRIPT
- ' .
REPUBLIC OF MALAWI
r NIGH COURT
C..t8AARY ~ - · ... • "'*"' ... ;
·· IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MZUZU DISTRICT REGISTRY
I.R.C. MATTER NO. 47 OF 2015
(Being Matter (Lilongwe) I.R.C. NO. 70/2013)
BETWEEN
JANET MSISKA AND 7 OTHERS ........ .. .................................. ..................... APPLICANTS
AND
( ) CENTRAL POULTRY (2000) LIMITED ........ .. .................................................. RESPONDENT
( )
CORAM: KINGSLEY D. MLUNGU
MISS CECILIA T. NYIRENDA
MR. ALEXANDER LUNGU
MR. WESLEY MWAFULIRWA
MR. W. KAMWELA
MR. W. MWENELUPEMBE
DEPUTY CHAIRPERSON
EMPLOYERS' PANE LIST
EMPLOYEES' PANELIST
COUNSEL FOR THE APPLICANT
RESPONDENTS' REPRESENTATIVE
COURT CLERK
ORDER ON ASSESSMENT OF COMPENSATION
This court found that the applicants were unfairly dismissed. Our task is thus to consider
the appropriate quantum of compensation for the applicants in relation to the dismissal
herein . Counsel for the applicants has filed written submissions wherein he has argued
that the applicants be paid an amount equivalent of a salary of two years at R30, OOO
per month .
He submits that the said R30, OOO was a promise made by the respondent to the
applicants as the monthly salary upon being employed, after their successful
pg. 1
,.
completion of traineeship, as managers. He argues that the said R30,000.00 be paid in
Malawian kwacha equivalence and the amount multiplied by 24 months reprenting
the two years they could have worked for the Respondent of the initial contract was
not tampered with. He further prays that the applicants also be compensated for the
money they worked for from 26th April, 2012 to the date of dismissal as per the
Respondent's own admission that the applicants were not paid this amount. He
concludes by saying that at that time the applicants were being paid K60, 000.00 per
month.
ANALYSIS OF THE LAW AND THE FACTS
In our critical assessment of the evidence tendered, there is nowhere where the
amount of R30, 000.00 is appearing. The amount in Rands which appears in this case is
R20, 000.00 in paragraph 1.6 of the witness statement of Medicine Dazilone (MAD 1 ).
The said paragraph reads as follows:
"It was agreed that my salary would follow the scale of the other managers at that time
which was in South African currency about R20, 000.00 per month although this part
was not established in writing"
Again the amount of R20, 000.00 is also appearing in the evidence of James Mponela,
during re- examination, at page 6 of the handwritten court record as follows:
"The details which were not in the agreement, which we had agreed verbally, were
r the issue of salary, which was pegged at 20,000.00 Rands as what our expatriate
counter parts were gettin'g."
Thus, it will be seen that the amount in Rands being talked here is R20, 000.00 and not
R30,000.00 as put by Counsel.
Be that as it may, our assessment of the evidence was that this was just a verbal promise
not reduced in writing as per the applicants own admission. We thus found that it will
not be prudent to use this amount in determining the damages as the same has not
pg.2
r('
been proved to our satisfaction, regard being had to the requisite standard of proof in
such cases.
Having said that, a careful reading of case law on unfair dismissal, will point to the
conclusion that such heads of claim do not succeed in employment law. The remedies
which are available are the ones in section 63 of the Employment Act.
See: JAMES MTHETO A. CHIMA -V- THE DEVELOPMENT CENTRE Matter No. 41 of 2001
(1.R.C.) (Lilongwe) where Hon. M.C.C. Mkandawire, chairman of the court, as he was
then, said:
"It would actually be absurd for the law to allow such remedies because it would mean
a person getting two salaries and separate benefits once that person lands into
another job within that same period. Certainly, that is not fair."
Going by exhibit MAD 2, subjects as 'Appointment as Trainee Manager,' the salary per
month there is MK60, 000.00 and 10% Housing allowance. This is also shown in the pay
slip dated 25/02/2012 and exhibited as MAD 3, although there the actual figure is
K66, 000.00 Basic salary.
The court therefore finds that the suitable remedy here is that of compensation as put
in section 63(5) of the Employment Act, for the matter herein, which stipulates that:
"The amount to be awarded under subsection
r (4) shall not be less than
(a) one week's pay for each year of service for an employee who has served for not
more than five years"
Going to the CHIMA Case, it was thus stated:
"This statutory remedy is therefore pegged at one year as a minimum period for
compensation .... " The Judge then went on to say that:
pg.3
"Before I do award the compensation, I have looked at the manner in which this
termination was effected. The applicant was on a 24 months contract, which was
well paying. All his legitimate expectations were thus thrown into the sea. This was
such unfair dismissal to which the applicant did not contribute at al l. It was wholly at
the instance of the respondent.
The court therefore finds that it is necessary to impose such an award that does
reflect the magnitude of this unfair dismissal." Thus, in the instant case I award the
applicants compensation which would amount to two months wages for each year
of service. Since the other year was not completed as the applicants worked only
for six months this would be awarded as a month wage so that in total the applicants
will get a three months wage as compensation, i.e. K60, 000.00 x3
= Kl 80, 000.00
ON WITHHELD WAGES/SALARY:
On record, we do not have proof that the Respondent paid the applicants salaries
from 26th April, 2012 to the date of dismissal. Even the Respondent admitted that the
applicants were not paid this amount. I therefore order that the same be paid
accordingly.
ON NOTICE PAY
If the same was not paid to the applicants, a one month salary ought to be paid to
them considering that_ the employer did not comply with the provisions of section 57
( 1) and (2) of the Employment Act which demand that before unilateral termination
of a contract by an employer takes place, the employee must be furnished with
valid reasons and in cases of misconduct or incapacity, the employee must be
afforded an opportunity to be heard.
See: R. S. SIKWESE, LABOUR LAW IN MALAWI, (Lexis Nexis) 2010 page 125.
pg.4
( }
In total therefore each applicant gets Kl 80, 000.00 compensation; K60, 000.00
notice pay and the withheld salary up to l Oth May, 2012, the date the dismissal was
effected. The same to be paid 14 days from the date hereunder.
Made the 281h Day of February, 2018.
pg.5
DEPUTY CHAIRPERSON
\
C.T. NYIRENDA
EMPLOYERS' PANELIST
ALEXANDER LUNGU
EMPLOYEES' PANELIST
CJ