Katuma v Development Aid from People for People (DAPP) (IRC 221 of 2003 ) (221 of 2003) [2006] MWIRC 130 (01 November 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 221 OF 2003


BETWEEN

KATUMA…………………..…………………...….………………………………………… APPLICANT

AND


DEVELOPMENT AID FROM PEOPLE TO PEOPLE (DAPP)….…………………..RESPONDENT


CORAM: R. Zibelu Banda (Ms); Chairperson

Madise S; Representing the Applicant

Respondent; absent no excuse

Chinkudzu; Official Interpreter


RULING

Employment-Contract of employment-Terms and Conditions-Parties to carry out contractual obligations-Party alleging a contractual term to prove-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 applicant agreed with the respondent that a maximum of applicant’s four children would be entitled to school fees of not less than MK5 500-00 per child per term, see exhibit ID 7. The respondent failed to honour this obligation. The court finds this to be a breach of employment contract and contrary to fair labour practices as provided in section 31 of the Constitution. This claim succeeds and the respondent is ordered to pay the withheld allowances with immediate effect as calculated by the applicant.


The applicant prayed for accumulated leave pay which he did not receive for the period he worked. This claim succeeds because the applicant was entitled to one month pay as leave grant each year, see ID 7.


The applicant further prayed for 50% of his salary during his foreign missions. This claim was not supported by evidence therefore it fails.


The applicant further claimed personal grant upon reaching five years. The applicant did not plead this claim in the statement of claim therefore it fails. 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 applicant was denied fair labour practices through failure by the respondent to carry out their contractual employment obligations. This action therefore succeeds in part. The applicant to prepare an order of liquidated sums on the successful 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.