Court name
Industrial Relations Court
Case number
IRC Matter 21 of 2003

Nyasulu v Air Malawi Ltd (IRC Matter 21 of 2003) [2006] MWIRC 141 (12 December 2006);

Law report citations
Media neutral citation
[2006] MWIRC 141

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI




MZUZU
REGISTRY




MATTER
NO. IRC LL 321 OF 2003




BETWEEN:




NYASULU .……………………………………………….
……………...APPLICANT




-and-



AIR MALAWI LTD…….....………………………...…………………RESPONDENT






CORAM: R.
Zibelu Banda (Ms); Chairperson





Applicant; present

Respondent;
absent no excuse


Namponya;
Official Interpreter







JUDGMENT



  1. Employment-Wrongful
    and unlawful termination-Date of cause of action- determines the
    applicable law- Pre 2000 employment-Governed
    by contract under
    common law-Terms of employment-Wrongful termination-Damages-Notice
    period.

  2. Fair labour
    practices-Constitutional-Sections 31 and 43-Violations to attract
    remedy under section 46.



Background


The applicant
was dismissed by Air Malawi the respondent in February 1995. Before
the termination he appeared before a disciplinary
hearing in Blantyre
to answer to certain allegations. He presented his case after which
he was dismissed. The court finds that
the employer by inviting the
applicant to a hearing to answer charges of engaging in fraudulent
activities complied with fair labour
practices under section 31 of
the Constitution and section 43 of the same.




It
remains now for the court to determine whether the dismissal was
wrongful under the contract of employment. The applicant showed
the
court a service contract prevailing at the time. It provided that any
party would terminate the contract of employment upon
giving the
other three months notice or salary in lieu thereof. In this case the
applicant informed court that he was not given
this three months
notice. The respondent did not attend court to contradict this
testimony.




The
court therefore finds that this termination was wrongful under the
law of contract of employment prevailing at the time. It
is therefore
ordered that the applicant must be paid the equivalent of three
months salary in lieu of notice, in accordance with
common law
principles of damages for wrongful dismissal as also enunciated in
various case law including the recent
Council
of the University of Malawi V Mkandawire

[MSCA Civil Appeal Number 38/2003 (unreported)]



The
court having found that the termination was fair under the
Constitution, the applicant could not be awarded any damages for

violation of his labour rights. Therefore this case is
distinguishable from other cases arising from the same constitutional
period
but where there was a departure from the common law principle
of damages.




ORDER


The respondent is ordered
to pay the applicant MK 5 592-00 within seven days of this order
being three months salary as damages
for wrongful dismissal. Since
the matter has taken too long to conclude, due to judicial
technicalities the court invokes Chawani V Attorney General
[MSCA Civil Appeal 18/2000 (unreported)] and orders a 20% to be added
on the amount to cover for inflation and devaluation of the
currency.




Right
of appeal


Any party aggrieved by this
decision is at liberty to appeal to the High Court within 30 days of
this judgment in accordance with
section 65 (2) of the Labour
Relations Act.








Pronounced
in Open Court
this 13th day of December 2006 at MZUZU.






Rachel
Zibelu Banda


CHAIRPERSON.