Mtambula v SOS Childrens Village of Malawi Trust (Matter No. 9 of 2002) ( of ) [2002] MWIRC 32 (24 June 2002);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE REGISTRY

MATTER NO. 9 OF 2002



BETWEEN:


ENEMIA MTAMBULA………………………………….....APPLICANT

and

SOS CHILDREN VILLAGE OF MALAWI TRUST..…RESPONDENT


CORAM:   HON. M.C.C. MKANDAWIRE, CHAIRMAN
                  Applicant – Present
Respondent – Present
Mr. Davie Mpakani – Official Interpreter


J U D G M E N T

Matters in Issue : Withholding of long service benefits.

         Introduction:

         The Applicant in this case Miss Enemia Mtambula filed this matter against the Respondents SOS Children Village. In her Statement of Claim, she discloses a trade dispute of withholding of long service benefits. The Respondents have denied her claim.

         Survey of Evidence

         The Applicant was employed in 1994 as a SOS mother. From the totality of the evidence on record, between 1994 and 2001, the Applicant was warned on several occasions because of her unbecoming conduct. There are letters tendered in this Court which reflect such warnings. For example, RES Ex No.1, is a warning dated the 5th of March, 1996. On the 28th of August, 2000, she had another warning which is exhibited RES No.3. Another warning came on the 12th of February, 2001 through a letter RES Ex No.4. This was in relation to negligence of duty by the Applicant. In between, there were two disciplinary meetings held in the Respondent’s Boardroom. The first one was held on the 22nd of August, 2001. The Minutes of that meeting are tendered as RES Ex No.6. The second meeting was held on the 30th of August, 2001 and is tendered as RES Ex No.10. After the meeting of 30th August 2001, the Applicant got a letter of termination which is RES Ex No.11.

         The Applicant told the Court that it is from this letter of termination of her employment that she was claiming for her long service benefits having worked for 7 years. She went on to sate that her employment was terminated after 7 years yet all she got was her own contribution of pension.

         The Respondents’ representative Mr. Tangoyetsa Chiwaya who is the Accountant told the Court that despite all these warnings that the Applicant got, she still maintained her job. But later on she was found with a shortage of K7,178:22 on the money she was keeping as a mother. She only paid back K600:00 leaving a balance. The shortage is tendered as RES Ex No.7. A decision was finally made to terminate the Applicant’s employment. The Applicant was thus paid her pension benefits which comprised of her own contributions and those of the Respondents. This payment is tendered as RES Ex No.8. The Applicant was also paid money in lieu of notice. From these payments the Respondents deducted the shortage which the Applicant had with them.

         Analysis

         This is a case of termination of employment. Initially, the Applicant had filed a trade dispute of withholding of long service benefits. From the totality of the evidence, the Applicant thinks that what she was paid by the Respondents is not enough. Before I finally looked at this, my attention was brought to the way her employment was terminated. The law is now very clear that before the employer can terminate the employment of an employee, there are two statutory requirements that the employer has to satisfy. These two statutory requirements are well explained in Section 57 of the Employment Act. These are:-

(a)     
That the employer should have a valid reason in relation to the conduct or capacity of the employee.

(b)     
That the employer should have given the employee chance to be heard.

In the instant case, on the 30th of August, 2001, there was indeed a disciplinary meeting. In this meeting, the Respondents confronted the Applicant with allegations of her conduct at work as well as fraud at the workplace. The Applicant explained her side of the story and thereafter a decision to terminate her employment was made. The letter of termination does refer to the hearing of the 30th of August, 2001. The Court found that the termination of her employment was fairly done.

In relation to her long service benefits, the Court finds that she was on a contributory scheme. The Respondents released both her and their contribution. This was again a fair handling of her case. They later on deducted the money which was a shortage she incurred at her place of work. There is nothing wrong with that. The Court does not see what other benefits the Applicant was entitled to. In a case where there is fair termination of employment, the employee is not at all entitled to severance allowance. I say this in case the Applicant was anticipating payment of severance allowance for the 7 years she had worked for the Respondents. All in all, therefore, I find that her claim cannot be sustained by this Court. They fail in their entirety.

DELIVERED this 24th day of June, 2002 at Lilongwe.






M.C.C. Mkandawire
HON. CHAIRMAN