INDUSTRIAL RELATIONS COURT OF MALAWI
NO. IRC 14 OF 2005
LAND O LAKES
Zibelu Banda (Ms) Chairperson
For the Respondent,
absent without excuse
ORDER IN ASSESSMENT OF COMPENSATION
for unfair dismissal-Compensation-Heads of
compensation-Principle-Just and equitable-Section 63 Employment Act.
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.
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.
assessment a lawyer was sent to court by the respondent when the
respondent had not been granted leave to be represented
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
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.
applicant prayed for compensation for loss of salary from time of
dismissal to when the contract would have been fairly terminated.
contract was to run for another 24 months. The applicant did not
contribute to his dismissal. He tried to mitigate his loss
could not find alternative employment.
The court finds that a just
and equitable compensation in this case is the equivalent of the
applicants 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
less any lawful deductions like tax if applicable. The
applicant could not prove that he was entitled to life insurance
this claim fails. The applicant stated that bonus was
earned and received at the end of the year. In this case the
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.
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.
this 13th day of December 2006 at MZUZU.