Court name
Industrial Relations Court
Case number
IRC Matter 51 of 2001

Wadabwa v Union Transport (IRC Matter 51 of 2001) [2005] MWIRC 64 (20 October 2005);

Law report citations
Media neutral citation
[2005] MWIRC 64

IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI




PRINCIPAL REGISTRY



MATTER
NO. IRC 51 OF 2001




BETWEEN:




WADABWA………………………………………...…………………….
APPLICANT




-and-




UNION TRANSPORT…………………………………………………
RESPONDENT






CORAM: R.
Zibelu Banda (Ms.) Deputy Chairperson


Tembenu/ Mambulasa
of Counsels for respondent


Dzonzi of Counsel for
applicant


Chinkudzu; Official
Interpreter






ORDER IN
ASSESSMENT OF COMPENSATION





Back ground


The applicant got judgment
at this court in his favour on 22 February 2005. The applicant
succeeded on technicality because although
the respondent might have
had a valid reason for terminating the services of the applicant, the
termination was unfair in that
the allegation was not properly
investigated nor was he given a fair opportunity to be heard.




The Law


In cases where the
termination is unfair on technical grounds ie failure to comply with
the right to be heard and defend oneself,
the court asks itself the
question whether if the procedure was complied with the applicant
would have been dismissed anyway, in
which case no compensation would
be awarded? See Slater V Earl & Wheeler (Airlyne) Ltd [1973]
1 WLR 51. This finding is necessary to avoid undue punishment on an
employer who had a valid reason to terminate but omitted
to carry out
some procedure. In this case because the allegation was not
established it cannot be assumed that if a hearing was
given the
applicant would have been dismissed anyway.




In this
particular case, the respondent operates commercial transport
business. The applicant was one of its drivers. It is in the

interests of the respondent in this case to ensure that its fleet of
vehicles is properly managed by its drivers and all other
concerned
persons. If the respondent was not vigilant in ensuring the proper
management of its trucks, its operations would run
down and its
investment would go down the drain. This factor is important to
stress because the role of the labour court is to
protect and
promote the workers interests and the employer’s investment and
operational interests.




In his
submissions the respondent stated that the goods on the applicant’s
truck were damaged due to careless driving. However
the respondent
did not state the loss occasioned due to the actions of the applicant
in this particular incident. The respondent
did not show whether the
applicant had similar previous misconduct. In assessing compensation
these factors are crucial as they
go towards the employee’s
contribution if any in the termination and reduces the award of
compensation accordingly: See section
63 (4) Employment Act.




Another
factor to consider is whether the applicant has tried to mitigate his
loss since the termination. This factor is incorporated
in section
63(4) Employment Act, where it refers to the compensation being just
and equitable. Just and equitable in this case
refer to both the
employer and the employee. A court can not and should not award
compensation to a litigant who just sits at home
without doing
anything to mitigate his loss: See generally Malawi Environmental
Endowment Trust V Kalowekamo
[Civil Cause (Appeal) Number 49/2004
(unreported)]HC.




A further
factor to consider is that the compensation must not be below the
minimum set by section 63(5) Employment Act. This proviso
does not
set a guideline or formula for calculating compensation, it only
tells the court never at any time to award compensation
below the
minimum set by the law: See Malawi Revenue Authority V Mpaso
[Civil Appeal Number 59/2004 (unreported)] HC. If anything this
can only be a ground where a party who succeeds to an award of
compensation
is awarded less than the minimum set in section 63 (5).
Therefore this court is not obliged at this stage to consider section
63
(5) because it is not the intention of this court to violate that
proviso and award the applicant less than the minimum.




Severance
allowance
is not part of compensation: See section 35 (5)
Employment Act. Therefore where an applicant proves that he was not
paid severance
allowance it ought to be awarded as a separate order.
In this case however the applicant testified that he received his
long service
pay for six years, which constitutes severance
allowance. Therefore the issue of severance allowance does not arise.



Other
benefits


The applicant informed
court that he received notice pay therefore the applicant would not
be awarded any notice pay. In reference
to Counsel for the
applicant’s submissions, the court finds that there is no basis for
the award of house allowance, leave grant
and transport allowance as
these were not pleaded. Remember the rule to plead and prove
specific damages?




Compensation:
The applicant through its Counsel applied for the minimum award of
compensation under section 63(5). Accordingly the court awards
the
applicant MK12150-00 as compensation for unfair termination.




The
respondent is ordered to pay this amount MK12150-00 to the
applicant through court or through his Counsel within seven days of
this order.


Reinstatement: In a
successful case of unfair termination, the court is obliged under
section 63 Employment Act to consider first the remedy of

reinstatement. The remedy must be considered in view of the
employee’s wishes. In this case although the applicant pleaded for

the remedy of reinstatement, he did not pursue it at the assessment
nor did his Counsel made any reference to it in his written

submissions. As such, it is assumed that the applicant did not wish
to pursue this remedy and it is not considered in this order.




Any party
aggrieved by this order is at liberty to appeal to the High Court
within 30 days of today in accordance with section 65
(2) Labour
Relations Act.




Pronounced
in Open Court
this 21st day of October 2005 at LIMBE.






Rachel
Zibelu Banda


CHAIRPERSON.