Kaduya v Tea Research Foundation (IRC 139 of 2033 ) (139 of 2033) [2005] MWIRC 57 (20 September 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 139 OF 2003


BETWEEN


KADUYA…….……………………………………………… APPLICANT


-and-


TEA RESEARCH FOUNDATION…………………....... RESPONDENT



CORAM: R. Zibelu Banda; Chairperson
Katuya; for Respondent
Applicant; present
Nyabanga; Official Interpreter


JUDGMENT

  1. Dismissal-Summary-Reason-Gross Negligence-Loss of company property-Misconduct-Practicing witchcraft at company premises- Unlawful demands on money from employees

  2. Procedure- Rules of natural justice-Right to be heard and defend oneself

  3. Terminal benefits-Severance pay-Notice pay-Employer’s pension contributions-Overtime pay.


FACTS

The applicant was employed on 11 January 1993. He was dismissed on 27 February 2003 for gross negligence and misconduct. He was summarily dismissed after full hearing and an investigation into all three allegations. The applicant’s claim is for severance allowance, full pension benefits, notice pay, overtime pay. The respondent denied owing the applicant any money as claimed.

The Issue

Whether the applicant upon being summarily dismissed was entitled to severance allowance (long service pay), company’s pension contributions, notice pay and overtime pay.




THE LAW

Summary dismissal is reserved for very serious acts of misconduct and gross negligence, see section 59 of the Employment Act. In this case the applicant was charged with serious acts of gross negligence that resulted in loss of company property, conducting unauthorized rituals at company premises and obtaining money from fellow employees in order to carry out the said unauthorized rituals and inciting fellow employees to destroy or damage company property. The court finds that these were serious acts of gross negligence and misconduct entitling an employer to dismiss summarily.

The applicant was heard on all the allegations, therefore the respondent complied with section 57(1) and (2) of the Employment Act on the need to furnish the employee with reasons for any adverse action and allowing the employee to answer to the allegations and defend himself.


The next issue is whether having been summarily dismissed the applicant was entitled to severance pay also known as long service pay. The answer is that where an employee is fairly dismissed for a reason relating to his conduct severance pay is not payable; section 35 (6) (b) Employment Act. In this case therefore, severance pay was not payable. This head of claim is therefore dismissed.


The following issue is whether the applicant was entitled to the employer’s pension contributions towards his pension benefits. Pension is a matter of contract and different pension schemes have different rules and conditions. It is not trite as alleged in the respondent’s Counsel submissions that persons whose contract of employment is terminated before retirement or whose contract is terminated fairly for reasons relating to conduct forfeits employer’s pension contributions. The pension rules must provide what happens under those circumstances, it can not be assumed as averred by Counsel. In the absence of any proof on a balance of probabilities that the rules of pension did not mprovide for employer’s pension contributions in the circumstances of the applicant’s termination, the court finds that the applicant must be paid the employer’s pension contributions. This head of claim succeeds.


The next head of claim is notice pay. The applicant averred that the respondent owed him notice pay in lieu of notice. This being summary dismissal, it was not practicable to serve notice. Section 59 (2) of the Employment Act provides that summary dismissal means dismissal without notice, therefore notice pay was not payable. This claim is dismissed.


The applicant also claimed overtime pay for 66 days. This was a specific claim for a sum of money. It is trite law that specific claims of money must be strictly proved. In this matter the applicant was not able to show whether or how he earned this overtime pay. In the absence of records or proof that overtime was earned this claim fails and it is dismissed.

Finding

The applicant has succeeded on the claim for pension contributions. The respondent is ordered to calculate the pension benefits being contributions from the employer and pay the applicant through this court in Limbe seven days from the date of this order.


The applicant has failed on the rest of the claims.


Pronounced in Open Court this 20th day of September 2005 at Mulanje.




R. Zibelu Banda (Ms.)

CHAIRPERSON