Court name
Industrial Relations Court
Case number
Misc Matter 157 of 2001

Zamaere v SUCOMA Ltd (Misc Matter 157 of 2001) [2001] MWIRC 12 (29 November 2001);

Law report citations
Media neutral citation
[2001] MWIRC 12

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI


MATTER NO. 157
OF 2001


BETWEEN:


MRS. W.P.
ZAMAERE……………………………………..APPLICANT


-and-


SUCOMA
LIMITED……………………………………RESPONDENT


CORAM: 


HON. M.C.C.
MKANDAWIRE, CHAIRMAN


Mr. Joster Mwazani
Chisale for the Applicant


Mr. Chalamanda for
the Respondent


Mrs. Mzumara –
Official Interpreter


R U L I N G


This matter has been
brought before this Court by Counsel for the applicant in order for
the Court to determine that summary judgment
be entered in favour of
the applicant for the sum of K1,849,124:10 being severance allowance
payable by the Respondent to the applicant
pursuant to Section 35 (1)
and (7) of the Employment Act, 1999, inclusive of 15% solicitors
statutory collection fees pursuant to
Table 6 of the Legal
Practitioners (Scale and Minimum Charges) (Amendment) Rules, 1999.
The application is supported by an affidavit
deponed by Mr. Joster
Mwazani Chisale of Counsel for the applicant. By the Applicant’s
Statement of Claim dated the 18th of October, 2001, the
Applicant’s Claim against the defendant is for payment of severance
allowance in the sum of K1,849,124:10
inclusive of solicitor 15%
collection charges pursuant to Table 6 of the Legal Practitioners
(Scale and Minimum Charges) (Amendment)
Rules, 1999 and costs of this
suit.


It would appear that
the Respondents do not really have a defence to this relief sought. I
say so because there is form IRC (the respondent’s
statement of
reply) filed with the Court but with no response at all. I also
observe that the Respondents have not filled in any
affidavit to
oppose the application made in this matter.


In entertaining this
matter, I have taken into account the provisions of Section 67 (3) of
the Labour Relations Act, which provides
as follows:-



"Where the dispute
involves only a question of law, a sitting of the Industrial
Relations Court may be constituted by the presence
of the Chairperson
or Deputy Chairperson sitting alone."

I find that the
matter before me really involves the provisions of Section 35 of the
Employment Act as read with Sections 64 and 65.
Before I further
delve into the matters at hand, I have a few observations to make in
relation to the way the motion herein has been
brought. These are
very critical issues especially at this point in time when the Court
has started receiving a lot of legal practitioners.


The Rules governing
this Court are those known as the Industrial Relations Court
(Procedure) Rules, 1999. These are the Rules which
the Hon. the Chief
Justice has sanctioned pursuant to Section 71 (1) of the Labour
Relations Act. In these rules, we do not have
provisions such as
those, which are found in the white book commonly referred to as the
Rules of the Supreme Court (RSC). This Court
does not use such rules
as are commonly applicable in the High Court and Supreme Court of
Appeal. Be that as it may, I have looked
at the provisions of Rule 16
(1) of the Industrial Relations Court (Procedure) Rules, which deals
with interlocutory applications
and matters not covered by these
Rules. This Rule provides:-



"An interlocutory
application or other application incidental to any proceedings
pending before the Court in respect of which
no procedure has been
provided for by the Act or by these Rules shall be brought by a party
on notice of motion which shall, as near
as possible, be in the form
set out in Industrial Relations Court Form 3."

Rule 16 (2)
provides:-



The application referred to in
sub-rule (1) shall be supported by an affidavit."

I note that the
applicant’s Counsel have followed the provisions and requirements
of Rule 16 (1) (2). That being the case, I can
entertain this
application.


As already mentioned
earlier, this matter has its genesis from Section 35 of the
Employment Act. This provision deals with the issue
of Severance
Allowance. What has happened in this case is that the Applicant’s
husband was an employee of the Respondent. The deceased
employee died
on 4th May 2001. Thus the Contract of Employment between
the deceased and the Respondent was terminated by reason of the death
of the deceased.
The Applicant has therefore invoked Section 35 (7)
of the Employment Act, which provides as follows:-



"Where the Contract of
Employment is terminated by reason of the death of the employee, the
Severance allowance shall be paid
to the surviving spouse of the
deceased employee or, in the absence of such a spouse, to such other
dependent relative as the Labour
Officer may decide."

Then Sub-section (8)
provides:-



"A complaint that a
severance allowance has not been paid may be presented to the
District Labour Officer within three months of its being due and if
the District Labour Officer fails to settle
the matter within one
month of its presentation, it may be referred to the Court, in
accordance with Section 64 (2) or 64 (3), which,
if the complaint has
been proved, shall order payment of the amount due."

My understanding of
Sub-section (8) is that a party has got discretion whether to go to
the District Labour Officer or direct to the
Industrial Relations
Court (since Court in the Employment Act is defined as the Industrial
Relations Court). I say so because the
catchword in this provision is
may. The Applicant has decided to complain direct to the Court
for his severance pay.


The matter having
come before this Court, I have looked at the affidavit in support of
this application. I have also looked at the
arguments put forward by
both sides through learned Counsel. From the word go, I find that the
Respondents are not disputing the
fact that the Applicant’s husband
is entitled to severance pay. The issue they have raised is about the
Applicant’s status. They
are saying that there is no cogent
evidence that the Applicant is the surviving spouse of the deceased
employee so as to entitle
her to severance allowance pursuant to
Section 35 (8). I am afraid to say that I do not have any basis on
which I can hold that the
Applicant is not the surviving spouse of
the deceased employee. The Respondent did not even suggest to this
Court why they would
doubt the truthness of what is contained in the
affidavit of Mr. Chisale about the Applicant being the surviving
wife. I find no
basis on that point. I take it that the Applicant
herein is the surviving wife of the deceased employee.


The next point I
have to look at is whether severance allowance is payable to an
employee who is also on pension scheme. This point
has raised a lot
of contentious issues in the Labour field. Of late, there has been a
criss-cross correspondence on the issue. My
duty here is to look at
the spirit of the Law. My reading of Section 35 of the Employment Act
is that Severance Allowance is payable
to any employee who qualifies.
If one is also on pension scheme, that is his or her luck. I do not
think that payment of Severance
allowances is only intended on those
who are not on pension arrangements. If the Law wanted that to be the
case, it could have specifically
provided for that.


In relation to issue
of costs; I do refer both Counsel to Section 72 of the Labour
Relations Act, which provides as follows:-



"Subject to Sub-section
(2) the Industrial Relations Court shall not make any order as to
costs."

I therefore do not
award any costs in this case. I therefore order that the Respondent
should pay out the severance allowance to the
Applicant as prayed
for. The Respondent should deduct any tax that is lawfully levied if
any. I would advise here that before they
do that, they should liaise
with the Malawi Revenue Authority as to whether such an allowance
attracts any tax.


DELIVERED this
30th day of November 2001 at Lilongwe Industrial Relations
Court of Malawi.


M.C.C. Mkandawire


HON. CHAIRMAN