Court name
Industrial Relations Court
Case number
IRC Matter 14 of 2005

Ngwira v Land O Lakes Malawi (IRC Matter 14 of 2005) [2006] MWIRC 140 (12 December 2006);

Law report citations
Media neutral citation
[2006] MWIRC 140

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI




MZUZU
REGISTRY




MATTER
NO. IRC 14 OF 2005




BETWEEN




NGWIRA....………………….….…………………………………………
APPLICANT




AND




LAND ‘O’ LAKES
MALAWI..…….…………….…………………..RESPONDENT






CORAM: R.
Zibelu Banda (Ms) Chairperson


Applicant; present


For the Respondent,
absent without excuse


Namponya; Official
Interpreter




ORDER IN ASSESSMENT OF COMPENSATION



  1. Remedies
    for unfair dismissal-Compensation-Heads of
    compensation-Principle-Just and equitable-Section 63 Employment Act.


  2. Legal
    representation-Leave would not be granted as the applicant was not
    represented by legal counsel-According to section 73
    of the Labour
    Relations Act leave is only granted where the other party is either
    a lawyer or is represented by a lawyer.




Background


On 31 August 2006 this
court found that the respondent had unfairly terminated the services
of the applicant. There was no valid
reason for dismissing the
applicant and there was procedural unfairness as the applicant was
not even heard. At that hearing the
respondent did not attend court
and no excuse was given for failure to attend to court.



At this
assessment a lawyer was sent to court by the respondent when the
respondent had not been granted leave to be represented
by legal
counsel. In any case, leave would not be granted as the applicant was
not represented by legal counsel and according to
section 73 of the
Labour Relations Act, leave is only granted where the other party is
either a lawyer or is represented by a lawyer,
see Cement and
others V Shoprite Trading (Mw) Ltd
[Matter IRC 49/2005
(unreported)].




Compensation


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 63 of the Employment
Act. However before awarding any remedy the court must assess 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.




The
applicant prayed for compensation for loss of salary from time of
dismissal to when the contract would have been fairly terminated.
The
contract was to run for another 24 months. The applicant did not
contribute to his dismissal. He tried to mitigate his loss
but he
could not find alternative employment.



Order


The court finds that a just
and equitable compensation in this case is the equivalent of the
applicant’s salary for the remaining
part of his contract which is
24 months at a salary of USD 1 300-00 per month. The applicant is
also entitled to 80% equivalent
of his salary as medical contribution
for the remaining part of his contract. This is because had it not
been for the unfair dismissal
the applicant would be enjoying this
benefit. The court also orders that the respondent pays the applicant
USD 260 as salary increment
for the remaining part of his contract.
The amount was arrived at after considering that the applicant had
salary increment in
the previous year and the likelihood was high
that he would get a raise in the remaining part of the contract. All
these amounts
less any lawful deductions like tax if applicable. The
applicant could not prove that he was entitled to life insurance
therefore
this claim fails. The applicant stated that bonus was
earned and received at the end of the year. In this case the
applicant could
not be awarded bonus as it was dependent on
performance of the enterprise. The successful amounts must be paid
within seven days
of this order.




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 13th day of December 2006 at MZUZU.






Rachel
Zibelu Banda


CHAIRPERSON.