Dambolachepa v Royal Insurance Company (Cont Record Assessment) (IRC 263 of 2005 ) (263 of 2005) [2006] MWIRC 12 (06 February 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 263 OF 2005


BETWEEN


DAMBOLACHEPA …………………………………………………… APPLICANT


-and-


ROYAL INSURANCE COPMANY ………………………………. RESPONDENT



CORAM: R. ZIBELU BANDA – CHAIRPERSON
Hara of Counsel for the Respondent
Applicant – Present
Gowa – Official Interpreter


ASSESSMENT


AP: Takes oath and states: I am P. Dambolachepa, Box 888, Blantyre. I lost salary – K43000.00 per month, loss of medical aid – 90% of the contribution – K5160 per month; I am demanding balance of K69000.00 on the severance allowance the employment deducted some money which they paid to me …… company contribution-


I did not lodge my complaint to the District Labour Office as I had lodged the matter with the court.


Court > Dismiss the claim – section 35 (8) I was entitled to 20 days leave per year. I am claiming 26 leave days for 2003 and 2004 – which and did not get paid for – pension scheme – I was paid less K69294.00 –


Annual increment for 2005 – I am claiming 13% of my salary – about K5590.00 which I was supposed to get at the beginning of January 2005.


Overtime for 438.25 hours for working on week ends and public holidays. I was not paid all my dues for these overtime. I claim the launch of K114301.01 – for the period 2000 – 2003 – I queried the employer while I was there but if did not work.


I did not make his claim in the statement of claim I lodged with the court. I want like to amend the statement of claim to include this claim.


Court: Amendment allowed – to be served on the respondent in the usual manner but to appear in the form close to IRC Form 3.


Damage – of reputation –


Court : We don’t award compensation for damage to registration.


  • I lost a cell phone – it was ………. for K25000.00. I do not have a police report -

  • I lost K114000.00 – the basis for the claim is that the company cancelled my policies – without any explanation.

  • I am claiming K50000.00 for use of my vehicle by the company. The basis of this claim is that I am used his seriously to take advantage of my car.


The total claim > K391301.01.


XXN: I was contributing 10% to medical scheme – K200.00 per person total – contribution – K600.00.


Pension – I was paid K234828.80 balance is K69294.00. I was supposed to be paid K304122.80 leave pay – 6 days accrued in 2003; 20 days accrued in 2004 – I was asked to go on leave in January 2005 – I went on leave for the 26 days – I was getting my salary during this time – I was asked to go on leave – by December 2004 – the 26 days had accrued – the company paid me everything up to date of termination. May 2005 I was paid for the 2005 proposition of leave.


Overtime – Accrued between 2000 – 2003 I don’t have any proof that I claimed at the company. I did not raised this issue in the statement of claim – I was underpaid in overtime – I did not work overtime in 2004. Salary increment > I was entitled to an increment in January 2005 – this was the practice – I had been getting this increment every year – this is also in the conditions of service –


Court: Practice > > basis > >


Insurance Policy > These were contracts between myself and Royal Insurance. They were not employment benefits – they had terms and conditions – I was not given a reason for the cancellation of the policies.


Court: Insurance contract – civil court. Use of car > the house belongs to Royal Insurance – the General Manager asked me to use my vehicle for temporary building materials to his house. I did not query him on the use of my car. He was my boss. He used my vehicle as an employee of Royal Insurance.


K50000.00 – basis – I used my car for over 20 times using my car – it suffered new and tear.


Re examin: Since June 2005 I have suffered loss due to the termination. I would like to ask for payment up to this month.


RP: Takes oath and states: I am Damiano Phiri, c/o Royal Insurance, P. O. Box 442, Blantyre.


Leave pay – the applicant was paid accordingly. Leave days which were accrued for 2005 were paid to him on the 26 days he is talking about – were clearly taken by him. There was no accumulation of leave days. I have a letter which was written to the applicant on the leave days –


Court: RP 1


Pension withdrawal – we had paid the applicant in full – we wrote the applicant on 29th June, 2005 informing him that he had received the payment from Old Mutual – amounting of K165535.33 after tax.


Court: RP 2


On 29th July, 2005 the applicant was paid a cheque of K69294 represent 50% of his entitlement of the employing contribution.


Court: RP 3


The applicant was paid in full pension benefits.


Salary increment: we review staff salaries on 1st June of each year. In 2005 the applicant’s salary was reviewed and he attained 0% increment. The applicant’s behaviour was poor hence the 0% increment.


Overtime – 2000 – 2003 – during this period we had a fixed rate for overtime – K60 per hour. Nobody was forced to work overtime – it was voluntary –


Policies – The insurances that the applicant to …….. from Royal were hike of other insurance and end policy was cancellation clause in this particular case, the Royal Insurance cancelled the policy. The claims raised by the applicant were made after the policy was cancelled therefore they should not arise at all.


Use of car – The arrangement was between myself and the applicant and not between the applicant and Royal Insurance. If the applicant has a claim it should be directed to me.


Medical scheme – After termination of employment the medical benefit cannot be sustained. The applicant deserved a dismissal therefore he could not claim any benefits.


Pension claim – We would like to get a copy of the computation that the applicant got from MRA on his pension benefits. Looks at letter – from Old Mutual confirming the with drawal benefits of the applicant –


Court: RP 4


Looks at letter – 22nd June, 2005 – addressed to Royal on pension benefits – calculation by Old Mutual.


Court: RP 5


XXN: We got K224463.34 employees K184657.97 employer’s contribution.

Total - K412385.79

Tax - K108262.99 Royal and Employee tax –

Net - K304122.80


There was no need for us to send you computation on your pension withdrawals – we paid your benefits.


The withdrawal tax is on both contributions from the employer and the employee.


Overtime - Fixed amount of K60 for overtime during the period 2000 – 2003. We used because conditions of service are supposed to be reviewed.


Policy – Cancellation was done and a clause was referred to. Your policies were independent of the employment contract. The cancellation of the policies was in the same document as the employment issues – operational – RP 1. The letter was several sections in it. RP 1 was addressed to me as an employee.


Review of salaries – You were paid increments between 2000 – 2004. Reads letter – on bonus for 204 – for best performance.


Court: AP 1 – 18th March, 2005 – Bonus.


26th January 2005 – Increments were due in January. The letter AP 1 was written in January 26. You were not entitled to any salary increment. A bonus refers to a previous year – 2004.


Re examin: The bonus is in three sections – target fulfillment (2) profit (3) expenses – if not, exceeded budget. Total bonus depend on the three elements if all are attained 10%. The bonus awarded to the applicant was full 100% across the board. The bonus was paid to all employees from top to bottom. It was team work and not individual performance. Terms of conditions of service-


Court: RP 6 – section on overtime clause 8 –


Court : Questions: The applicant was not given a reason for not getting a salary increment in 2005.


Court: Reason should have been given.


Dambolachepa – I have problems financially – since the termination. I have not done anything to mitigate my loss. I attended interviews at several companies – I don’t have any letter of regret on job seeking. MEET vs Kalowekamo –


Hara – I will make written submission.


Court: Written submissions in 7 days time to be filed at the court in Blantyre – Order of Assessment 21 days from today.





R. Zibelu Banda

CHAIRPERSON

06/02/06