Makondetsa v Minibus Owners Association (IRC 395 of 2002) (395 of 2002) [2005] MWIRC 75 (21 November 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 395 OF 2002


BETWEEN


MAKONDETSA…………….….………………………………………… APPLICANT


AND


MINIBUS OWNERS ASSOCIATION…………….…………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms) Chairperson

Salima of Counsel for the Applicant

Gulumba of Counsel for the Respondent

Chinkudzu; Official Interpreter


RULING

Employment-Proof employment-Contract-Relationship resembling more like of an employee than independent contract-Economic dependence-Under obligation to perform work-Section 3 Employment Act


Upon hearing both parties to this case and upon going through the court record, the court finds that the applicant was not at any time employed to work for the respondent in a capacity of Treasurer or any other capacity.


The applicant alleged that he was employed by the respondent but was not able to produce any evidence in any form as proof of his employment. The applicant produced a letter purportedly depicting that he was dismissed from employment on 2 August 2002. However, a careful examination of this letter which was produced and marked as AP1 only buttressed the respondent’s case that the applicant was an elected member of the respondent’s executive committee. The letter tendered as termination letter was in fact an expulsion letter from the executive committee.


Indeed it is trite law that he who alleges must prove. In this case the applicant failed to prove on a balance of probabilities that he was employed by the respondent. In any case the evidence as adduced by the applicant does not in any way show that the applicant was in an employment relationship with the respondent. The relationship they had does not fit the relationship of employer/ employee envisaged in section 3 of the Employment Act. As such the applicant can not claim unfair termination. This action is therefore dismissed in its entirety.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this date. Appeals lies only on matters of law or jurisdiction, section 65 (2) Labour Relations Act 1996.


Pronounced in Open Court this 21st day of November 2005 at BLANTYRE.


R Zibelu Banda (Ms.)

CHAIPERSON.