Chiomba v Mtsogolo (IRC 227 of 2002 ) (227 of 2002) [2005] MWIRC 65 (24 October 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 227 OF 2002


BETWEEN:


CHIOMBA...………………………………………………. ……………...APPLICANT


-and-

BANJA LA MTSOGOLO....………………………...…………………RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Ngwira; of Counsel for the Applicant

Kanyenda; of Counsel for the respondent

Johansen; Research Assistant

Chinkudzu; Official Interpreter


JUDGMENT

Wrongful and unlawful termination-Damages-Notice period-Pleadings-Special damages to be specifically pleaded.


The background

Upon going through the court file the court noticed that the applicant who was represented by legal Counsel throughout had lodged a claim founded in common law action of wrongful and unlawful termination. The court inquired from Counsel for the applicant whether they wished to amend the cause of action to read unfair termination under the new cause of action in the Employment Act. Counsel for the applicant submitted that they did not wish to amend the statement of claim. He informed court that it was their wish to institute the claim as it was in the statement of claim and the remedies sought were damages for wrongful and unlawful termination. The matter therefore proceeded on that basis.


The Law

Upon hearing the evidence from both parties it transpired that the applicant had in fact already received her notice pay. “It is now long established that damages equivalent to a salary in lieu of notice are awarded to an employee whose services will have been wrongfully terminated and that that is because the period of notice is the period at the end of which an employer may lawfully terminate an employment.” See Council of the University of Malawi V Mkandawire [MSCA Civil Appeal Number 38/2003 (unreported)]


The applicant having received her notice pay she could not be allowed to turn around and claim that her services were wrongfully and unlawfully terminated. This claim is therefore dismissed.


Severance allowance and Pension: The applicant in her oral evidence prayed for severance allowance and pension benefits. These reliefs were not pleaded in the statement of claim. Under the standard IRC Form 1 being the statement of claim , in item 5, the applicant is specifically and expressly asked to write down the particulars of relief sought. The applicant who had the services and advise of legal Counsel did not plead these reliefs under that item in the IRC Form 1. This omission is fatal, as it is trite law that special damages must be specifically pleaded. The position would have been different if the applicant was not represented by legal Counsel and was not as seemingly knowledgeable as the applicant in this case. The omission is not a mere technicality which can be cured, because the duty to plead and provide particulars of special claims can not be over emphasized nor overlooked. These claims must therefore fail on that basis.


Finding

The action on wrongful and unlawful termination is dismissed on ground that the termination was in fact not wrongful and unlawful as the applicant received her notice pay in lieu of notice. The claims for severance allowance and pension benefits fails on ground of failure to plead and provide particulars of the said reliefs as required by law. The whole action fails and is accordingly dismissed.


Right of appeal

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




Pronounced in Open Court+ this 24th day of October 2005 at LIMBE.



R Zibelu Banda (Ms.)

CHAIRPERSON.