Buhendwa v Dignitas International (IRC 360 of 2005 ) (360 of 2005) [2006] MWIRC 143 (14 December 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


IRC MATTER NUMBER 360 OF 2005


BETWEEN


BUHENDWA …………………..………………………………………… APPLICANT


-and-


DIGNITAS INTERNATIONAL …………………………………….. .RESPONDENT


CORAM
R Zibelu Banda (Ms.):Chairperson
Msungama; of Counsel for the Applicant
Tembenu; of Counsel for the Respondent
Ngalauka; Official Interpreter

Assessment of Remedies

Section 63 of the Employment Act provides that where a person succeeds in an unfair dismissal claim, he shall be entitled to a suitable remedy. Counsel on both sides made submissions regarding the remedy. The Applicant prayed for reinstatement, which the principal remedy that a court must consider in any unfair dismissal case. In assessing this remedy, the court is compelled to consider factors like circumstances in which the dismissal took place and contributory fault.


The court has read the affidavits from both parties and it transpires that there were indeed serious allegations on impropriety against the Applicant. The allegations on sexual harassment and dishonesty and circumventing procurement procedures were quite serious. The court did not delve into whether the allegations were proved or not. However, the fact is that it would be unreasonable to expect the Applicant to work with the Respondent under the circumstances in which their relationship was severed. The relationship would be impractical. Especially because the Applicant was a senior officer who reported directly to Head office in Canada from the look of things.


As an alternative to reinstatement, compensation is awarded under section 63(4) of the Employment Act. The factors to be considered are that it must be just and equitable. What is just and equitable is determined taking all factors into consideration, including the circumstances in which the dismissal took place, contributory fault, mitigation and minimum compensation under section 63(5).


There have been divergent decisions on compensation for unfair dismissal from the High Court. The most recent one whose views are shared by a number of other decisions is: DHL International Ltd V Nkata [Civil Appeal Number 50/2004 (unreported)]. The Honourable judge, acknowledged a number of Supreme Court decisions including Chawani V Attorney General [MSCA 18/2000 (unreported)] and stated that this case was based on common law. Although this court is bound by decisions of superior court it is not prevented in exercising its own judicial independence from distinguishing such superior court decisions. Clearly if Chawani was a common law decision, the issue must have been addressed by the Supreme Court as orbiter. Because the issue in Chawani case was not unlawful dismissal basing on failure to give proper notice, but rather that the Respondent dismissed the Applicant without following proper procedure provided in Section 27(1) of the Public Service Act and Section 43 of the Constitution. The finding of the Supreme Court was consistent with this claim. If this was a case based on common law, there was no way that the Supreme Court would have awarded the Applicant, Dr Chawani, any tambala more than what he would have been entitled to under common law damages for unlawful dismissal: equivalent of notice pay.


In laying down the principles of compensation for unfair dismissal under section 27(1) of the Public Service Act which is similar materially to Section 57(2) of the Employment Act both of which derive from Section 43 of the Constitution, Tambala SC. JA, said:


We must now apply the principles relating to the measure and assessment of damages which we have considered in order to determine the appropriate damages to which the appellant is entitled. In the light of the cases of Lavarack V Woods of Colchester Ltd, Gunton V Richmond Boirough Council and Hill V CA Parsons and Co Ltd, the appellant would have been entitled to damages equivalent to salary for three months being the notice period, and no more. However, the legal position has changed in the light of Section 43 of the Constitution and also Section 27(10 of the Public Service Act. These sections have taken away the power of government to terminate employment of civil servants without giving justified reasons, by merely giving three months notice.


Damages equivalent to salary covering the notice period are granted to an employee who is wrongfully dismissed, on the assumption that that is the period at the end of which an employer has power to terminate the contract of employment lawfully. We must now consider whether taking into account Section 43 of the Constitution and Section 27(1) of the Public Service Act, the government had power to terminate lawfully the employment of the appellant earlier than the date of his mandatory retirement.


The court having found that government had no power to terminate the contract of the Appellant by mere notice, then went ahead and discussed the measure of damages for a person whose services were terminated contrary to the spirit of Section 43 of the Constitution and Section 27(1) of the Public Service Act which is the equivalent of Section 57(2) of the Employment Act.


Considering the remarkable success which the appellant achieved during his career in the Civil Service and considering the period of time which remained before he could attain the age of mandatory retirement, we take the view that Government could not properly terminate the appellant’s contract of employment earlier than the time when he would attain the mandatory retirement. He is therefore entitled to damages covering the period between the date of wrongful termination to the date of the appellant’s mandatory retirement.


Chilumpha text summary


Therefore Chawani V Attorney General was a case which according to DHL International might have discussed common law but only as orbiter as this was not the issue for consideration. Hence this court distinguishes DHL International Limited V Nkata and holds that Chawani is a clear case that should guide this court when assessing compensation for dismissal that did not follow rules of natural justice as enshrined in section 43 of the Constitution and codified in Section 57(2) of the Employment Act.


To further buttress this point, a later Supreme Court decision in Council of the University of Malawi V Mkandawire [MSCA Civil Appeal Number 38/2003 (unreported)] the Supreme Court clearly decided the matter basing on common law. The decision of the court is consistent with common law principles of damages for unlawful dismissal. In fact that case was later assigned to the Constitutional Court to determine the issue of unfair dismissal under the Constitutional provisions. The Constitutional case did not determine the merits of the case, preferring to transfer it to the Industrial Relations Court to determine the case on the basis not of common law as determined by the Supreme Court but on the basis of fair labour practices under the Employment Act, which Act fulfills the Constitutional right to fair labour practices under sections 31 and 43.


Having distinguished the superior decisions above, the court is now ready to assess the compensation due to the Applicant in this case. The factors to consider have already been alluded to.


The Applicant was on a fixed term contract expiring in July 2007. He was dismissed on 16 October 2005. He still had 21 unexpired months to the end of his contract. In the interim the Applicant secured alternative employment to mitigate his loss. (a) The court therefore finds that the Applicants compensation is the equivalent remuneration for 21 months less any amount that he is receiving in his current job. (b) The Respondent had valid reason for which they could have fairly disciplined the Applicant. Therefore the court finds that the Applicant contributed to his dismissal. The court assesses his contribution to 50%. Therefore whatever amount was recoverable under (a) above must be reduced by 50%.



Order

The court orders that the parties must calculate the compensation due as found in this judgment. The grand sum due must be paid to the Applicant within 7 days of this Order.



Any party aggrieved by the whole or any part of this decision is at liberty to appeal to the High Court in accordance with section 65 of the Labour Relations Act.






Pronounced this 14th of December 2006 at BLANTYRE




Rachel Zibelu Banda

CHAIRPERSON