Ngwira v Land O Lakes Malawi (IRC 14 of 2005 ) (14 of 2005) [2006] MWIRC 140 (13 December 2006);

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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.