Chitate and Another v Avery Berkel (MW) Ltd (IR 205 of 20055 ) (205 of 20055) [2006] MWIRC 128 (01 November 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 205 OF 2005


BETWEEN

CHITATE AND ANOTHER.….………………………………………… APPLICANT

AND


AVERY BERKEL (MW) LTD………….………….…………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Chayekha; of Counsel for the Applicant

Mpaka; of Counsel for the Respondent

Gowa; Official Interpreter


RULING

Employment-Contract of employment-Terms and Conditions-Parties to carry out contractual obligations-Court hearing-Parties to attend court-Failure to attend court without valid excuse-Court to proceed in accordance with section 74 Labour Relations Act.


It is trite law that parties to a contract are bound by the express or implied terms of the contract unless it can be shown otherwise, see Salimu V Bestobell (Mw) Ltd [Matter Number IRC 25/2005 (unreported)] and Gomiwa and another V Malawi revenue Authority [Matter Number IRC 329/2005 (unreported)]. In this case the applicants agreed with the respondent that they would receive salaries for their work, increment on the salaries, bonuses, gratuity and leave. The agreements appeared in the contract letter, and some correspondences between the applicant and management in the respondent’s company as exhibited in AP1 to AP 10. However after a trade dispute the respondent failed to pay the first applicant Mr Chitate salary for some months and bonuses. In the case of second applicant Mr Sibanda, the respondent did not pay him salaries for some months, gratuity, leave and bonuses.


The respondent was given an opportunity to defend themselves in court but they failed to appear on the appointed date of hearing and the reason for failure to attend court was not valid. The matter had to proceed in accordance with section 74 Labour Relations Act.


In the absence of any contrary evidence, the court finds that the applicants’ were denied fair labour practices through failure by the respondent to carry out their contractual employment obligations. This action therefore succeeds. The applicants to prepare an order of liquidated sums on the claims.


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


Pronounced this 1st day of November 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.