Chembezi v Kasinthula Grain Growers Ltd (IRC 295 of 2006 ) (295 of 2006) [2006] MWIRC 13 (28 February 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


CHIKWAWA REGISTRY


MATTER NO. IRC PR 294 OF 2006


BETWEEN


CHEMBEZI ……………………………………………………………….APPLICANT


-and-


KASINTHULA CANE GROWERS LTD…………………………… RESPONDENT



CORAM: R. ZIBELU BANDA (MS); CHAIRPERSON

Malijani; Employers’ Member Panellist
Kajombo; Employees’ Member Panellist
Namata; General Manager for the Respondent

Applicant; Present

Gowa; Official Interpreter

JUDGMENT


Facts

The Respondent employed the Applicant on 16 November 1999 as Radio Operator. Applicant resigned from employment in June 2006 for what he claims ill-treatment by the Respondent’s Operations Manager. However his resignation was not accepted by the respondent because he had given a shorter notice than what was applicable in the Respondent’s conditions of service. Further the Respondent suspected that the Applicant resigned to escape from some anomalies in the Applicant’s handling of requisitions for fuel. The Respondent convinced the Applicant to withdrawal his resignation and the Applicant obliged. Meanwhile the Respondent invited auditors from Securicor (Mw) Limited to audit the Applicant’s office. The auditors reportedly found anomalies in the way the Applicant conducted his duties especially in the requisitioning and issuance of fuel. The Applicant was not called to respond to the anomalies found by the auditors. Subsequently the Respondent told the Applicant that his resignation had now been accepted. Applicant claims the following terminal benefits:


  1. Pension benefits

  2. 4 years leave pay

  3. Recalculation of severance allowance claiming it was underpaid

  4. Overtime

  5. Rentals and utility bills for the period after termination until repatriation

  6. Pay for period not working until repatriation.


Issue

The issue is whether or not the Applicant was entitled to terminal benefits claimed?


The Law

Since the applicant had withdrawn his resignation, it could not subsequently be accepted. It took almost four months between the times that the Applicant tendered his resignation and when the resignation was accepted. It is found as a fact that there was no resignation. Therefore this was a unilateral termination by the Respondent. The Applicant did not challenge the manner of termination but rather the terminal benefits. In a termination such as the one in this case the Respondent was under legal obligation to pay the Applicant terminal benefits in accordance with the Employment Act and the Terms and Conditions of Employment. The Applicant claimed the above benefits.


Some claims made by the Applicant namely; house rentals and utility bills, repatriation and salary for the period after termination have no basis and cannot be entertained. Salary is earned and in a case where an employee is out of employment through an unchallenged termination, salary and other benefits are not earned and therefore not payable.


Further, the Applicant was not able to show the court how much overtime he had worked and how much was due to him. Just as he was not able to show how much leave he had accrued and how much in monetary terms he was entitled to. Being specific claims the burden of proof fell on the Applicant to prove that he was entitled to a specified figure in overtime and leave pay.


The Applicant also claimed balances in severance allowance and pension. He claimed that he was underpaid and that he demanded the balance. However the Applicant was not able to show the court how much he had actually received and how much if any was the balance. This is a specific claim and the Applicant bore the burden of proof. It was also noted that these claims were not pleaded in the Statement of Claim. This action fails in its entirety and is dismissed.


Pronounced this 28th day of February at CHIKWAWA.



Rachel Zibelu Banda

CHAIRPERSON



Aiman Malijani

EMPLOYERS’ PANELLIST



Nick Chifundo Kajombo

EMPLOYEES’ PANELLIST