Wadabwa v Union Transport (IRC 51 of 2001 ) (51 of 2001) [2005] MWIRC 64 (21 October 2005);






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



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

Tembenu/ Mambulasa of Counsels for respondent

Dzonzi of Counsel for applicant

Chinkudzu; Official Interpreter


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