Chipinga v New Building Society (IRC 97 of 2002 ) (97 of 2002) [2006] MWIRC 103 (03 August 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


THYOLO REGISTRY


MATTER NO. IRC 97 OF 2002


BETWEEN


CHIPINGA.………………….….………………………………………… APPLICANT


AND


NEW BUILDING SOCIETY…..…….…………….…………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms) Chairperson

Mwala of Counsel for the Applicant

For the Respondent, absent without excuse

Chinkudzu; Official Interpreter


ORDER IN ASSESSMENT

Remedies for unfair dismissal-Compensation-Heads of compensation-Principle-Just and equitable-Factors-Contributory fault.


Background

On 9 March 2006 this court found that the respondent had valid reason for dismissing the applicant but they failed to comply with the law by failing to afford the applicant the opportunity to be heard and defend himself before he was dismissed. The dismissal was therefore found to be unfair on technicality. The respondent did not comply with section 43 and section 31 of the Constitution on fair administrative action and fair labour practices.


The Law

Where a party succeeds in a case of unfair dismissal, the court is empowered to award that person a remedy. These remedies are provided in section 46 of the Constitution. However before awarding any remedy the court must assess the case from the facts to determine an appropriate remedy. As such remedy is not automatic and is not uniform, as the remedy will always depend on the circumstances of each case.


Compensation is awarded where the court finds that the employee had suffered some loss. The applicant was employed on 8 February 1991. He was dismissed on 30 March 1999. The applicant took three years to complain. No reason was given as to why it had to take him that long to take his complaint to court for a remedy.


He stated that in 2001 he engaged in small businesses as a means of earning a living. It is this court’s view that the applicant slept on his rights. It was only after the going got tough that he decided to complain about his termination. This was inordinate delay which must be considered to the detriment of the applicant in assessment of a remedy.


It is further the court’s view that the applicant contributed to his dismissal because if there were no allegations of the nature alleged against the applicant, he could still be in employment. In other words, the respondent had a reason for termination, the only unfairness came in after the applicant was not given a chance to explain his side and defend himself. Contributory fault is a factor used in assessment of compensation where the fault attributed to the applicant is deducted from the total award.


Order

The court finds that a just and equitable compensation in this case is the equivalent of the applicant’s last salary in 1999 being MK11 343.75 less PAYE. The total compensation is MK7 758.12. The court orders that this amount be paid within seven days of this order into the Industrial Relations Court.


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


Pronounced this 3rd day of August 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIPERSON.


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