Kumwenda v Mkandawire - Matter No. 102 of 2001 (102 of 2001) [2002] MWIRC 9 (29 April 2002);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU REGISTRY

MATTER NO. 102 OF 2001

BETWEEN:

ELVIS GEORGE KUMWENDA……………………...…..APPLICANT

-and-

MR. C.C.M. MKANDAWIRE

(Managing Director)……………………………..………..RESPONDENT

CORAM: 

HON. M.C.C. MKANDAWIRE, CHAIRMAN

Applicant, Present

Respondent, Absent

Mrs. Namponya/Mrs. Kalirani – Official Interpreter

R U L I N G

This is an appointment to assess damages following a default judgment, which the Applicant herein obtained in his favour on the 18th of December 2001. The Respondent was served with the notice to assess damages. He did not turn up for hearing. No reasons were given for such a failure. I therefore went ahead to assess the damages on behalf of the Registrar of the Industrial Relations Court.

Briefly speaking, the Applicant was first employed by Bambino Private Schools in the City of Lilongwe before the Respondent who owns Chimaliro Private Schools persuaded him to leave Bambino and join him. In order to attract the Applicant, the Respondent personally travelled to Lilongwe and held very serious discussions with him. At the end of the day, the Applicant immediately left Bambino Schools for Chimaliro Private Schools. Amongst the so-called greener pasture conditions at the new place of employment were the following:-

(1) That the Respondent would pay school fees for the Applicant’s son at any school in the City of Mzuzu where Chimaliro Private Secondary School is. On top of that, that the Respondent would pay half the son’s school fees for the nephew to the Applicant.
(2) That the Respondent would pay half the water and electricity bills that the Applicant incurred whilst working for Chimaliro Private Schools.
(3) That the Respondent would pay one months salary in lieu of notice to Bambino Private Schools.
(4) That the Respondent would pay to the Applicant one month of leave which the Applicant had forfeited with Bambino Private Schools as a result of his sudden move to Chimaliro Private Schools.

The Applicant was dismissed by the Respondent after having worked only for 6 months that is from June to November 2000. The Applicant said that the dismissal itself was unfair and that by the time he was dismissed, the Respondent owed him money on school fees, water, electricity, forfeited leave grant at Bambino and one month notice pay.

This, as I have already said is an assessment following a default judgment. There being default judgment, it means that the issue of liability has been settled. I should also point it out on the onset that the claims made by the Applicant were straightforward and to the point.

The Court after having looked at the calculation made by the Applicant found that the Applicant should be paid as follows:-

(1) K5,250 for school fees.
(2) K876.66 for water
(3) K475.00 for electricity
(4) K9,000 for one month pay withheld.
(5) K8,300 for one month leave forfeited at Bambino.

In total therefore, I order that the Respondent do pay the sum of K23,901.66.

Coming to the issue of compensation for unfair dismissal, I have taken into account that the law governing such award is as put under Section 63 (4) of the Employment Act which provides:-

"An award of compensation shall be such amount as the Court considers just and equitable in the circumstances having regard to the loss by the employee in consequence of the dismissal in so far as the loss is attributable to action taken by the employer and the extent, if any, to which the employee caused or, contributed to the dismissal."

Since the Respondent herein has not put any defence, the Court takes it that the blame squarely rests on the employers’ shoulders for the dismissal herein.

The Court has taken into account that the Respondent had to follow the Applicant all the way to Lilongwe where the Applicant had a stable job. Not only a stable job but was Headmaster for the secondary section. The Respondent using his silver tongue promised the Applicant the moon; just to damp him after only six months. Certainly, the Applicant was humiliated and did sustain loss.

Awards for compensation for unfair dismissals are further regulated by Section 63 (5) of the Employment Act. This section provides:-

"The amount to be awarded under section (4) shall not be less than-
one weeks pay for each year of service for an employee who has served for not more than five years."

Here the Applicant had only served for six months. I do award him two weeks pay as his compensation for the unlawful dismissal which is K4,500 since his monthly salary was K9,000. All these amounts I have awarded thereof amount to K28,401.66 which has to be paid immediately through the Court.

MADE this 29th May of April 2002 at Mzuzu.

M.C.C. Mkandawire

HON. CHAIRMAN