Nyasulu v Air Malawi Ltd (IRC 21 of 20033 ) (21 of 20033) [2006] MWIRC 141 (13 December 2006);

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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.