Mwenelupembe v MANDA (IRC 28 o 2006)) (NULL) [2006] MWIRC 199 (13 December 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 28 OF 2006


BETWEEN

MWENELUPEMBE………..….………………………………………… APPLICANT

AND


MANDA……………………….………….………….…………………..RESPONDENT

CORAM: R. Zibelu Banda (Ms); Chairperson

Applicant; present

Respondent; present in own capacity

Namponya; Official Interpreter


RULING

Employment-Contract of employment-Terms and Conditions-Parties to carry out contractual obligations-Fixed contract-To perform specific task-Section 25 Employment Act-Payment upon completion of specific item-Employee to show work completed-Employer to prove on balance probabilities that payment was made on completed task.


The Law

This was a specific contract to perform a specific task covered by section 25 of the Employment Act. It is trite law that parties to a contract are bound by the express or implied terms of the contract unless it can be shown otherwise, see Salimu V Bestobell (Mw) Ltd [Matter Number IRC 25/2005 (unreported)] and Gomiwa and another V Malawi revenue Authority [Matter Number IRC 329/2005 (unreported)].


In this case the applicant agreed with the respondent to do certain works at a building construction site. The applicant would get paid for any completed task. The employer would pay upon satisfaction that work was done. There were two agreements. The first agreement was adopted by the applicant after the principal contractor was not able to perform the work. The applicant drew up a bill of quantities which was given to the respondent. The respondent accepted the bill of quantities which according to his evidence he used to obtain a loan from a bank. The work was done but no payment was made. The applicant produced AP 1 as evidence of the work he performed and completed but the respondent was not able to show that he paid for the work. The respondent admitted that he did not pay the applicant some money but put the applicant to strict proof to show that he was not paid at all. The applicant reiterated that he got nothing for the first contract and AP 1 was his proof of the work done. The respondent confirmed that the task under the first contract was completed. None of his two witnesses contradicted the applicant regards his claim under the first contract.


The court finds that the applicant performed his part of the contract but the respondent did not honour the agreement. The court orders that the respondent should pay the applicant MK 264 331-00 being lump sum for various tasks performed by the applicant under instruction of the respondent.


The second contract was for MK394 800-00 including labour and materials for specific works. The applicant claimed that of this amount he was only paid some but not all the money. He admitted that he did not complete the work because he had faced some problems. He claimed that the balance was MK 64 500-00. The respondent was able to show signed evidence that the applicant was paid some money under this contract. The respondent was also able to demonstrate with the support of his two witnesses that the applicant did not complete the work under the second contract.


The respondent further showed that he paid the applicant MK 50 000-00 as advance payment for labour and materials but the applicant failed to account for this money. The applicant confirmed that he was paid some money but he did not complete the work.


It is found that the applicant was entitled to MK64 500-00 being balance under the second contract less MK 55 825- 00 which he was paid but could not account for. The balance for the applicant to receive under the second contract therefore is MK 8 675-00.


ORDER

The total dues to be paid by the respondent to the applicant therefore comes to MK255 006-00. The court orders that this amount 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 only on matters of law or jurisdiction; section 65 (2) Labour Relations Act 1996.


Pronounced this 13th day of December 2006 at MZUZU.



Rachel Zibelu Banda

CHAIRPERSON.