Kaunda v Catholic Relief Services (RC 198 of 20033 ) (198 of 20033) [2006] MWIRC 23 (09 March 2006);

Share
Download: 



IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 198 OF 2003


BETWEEN


ZEBEDIA KAUNDA …………………………………………………... APPLICANT


-and-


CATHOLIC RELIEF SERVICES ………………………………… RESPONDENT



CORAM: R. ZIBELU BANDA (MS), CHAIRPERSON
Makhalira of Counsel for the Applicant
Kalasa of Counsel for the Respondent
Ngalauka – Court Clerk

Makhalira: At last sitting we were instructed to amend our IRC Form 1, under item 6 of the Statement of Claim. The amendment was made. It now reads compensation for loss of income for April, 2002 period to March, 2003 period amount to K390000.00. I submit that my client is entitled to this money with compliance in provisions of section 63 (1) ( c ) and (4) of the Employment Act. The basis of our claim is on section 63 (1) (c ) providing for just and equitable compensation.


Kalasa: I would like to apologise for not attending the first sitting. I was not aware that the matter was coming up. I was approached by my colleague that the issue concerned certain items which were admitted and wish to inform the court that part of the claim has been settled hence the limitation to the claim for compensation.


The respondent’s position is that the applicant is not entitled to compensation for loss of income for the paid in question. Before the contract which the applicant signed was for a period ending 31st March 2002. I am not sure whether you have on record on date the services were terminated. These were terminated before 31st March 2002 – that was when notice was given. At the point of the applicant’s renewal of contract, he was not in the respondent’s employment, he was free to take up any job.


Section 63 (4) of the Employment Act refers to loss suffered by employee in consequence of the dismissal. The applicant would’ve been out of job anyway after 31st March 2002. It was up to him to find an alternative job. The respondent feels the applicant has been properly compensated for being paid from period of suspension to end of contract.


The applicant was not dismissed but the contract expired – it just happened that at the expiry of contract the criminal case was still in progress. I wish to emphasize that the applicant has been adequately compensated by payment made him to 31st March 2002. During suspension period. I wasn’t here last time I am not sure whether the contract was tendered as part of the applicant’s evidence to 31st March 2002.


The applicant is claiming K390000.00 as compensation but section 63 (5) of the Employment Act stipulates that the amount to be paid shall not be less than that stipulated in Employment Act if the court is of the view that the applicant is entitled to compensation despite that he was not dismissed I pray that his compensation be that in section 63 (5) (d).


Court: The issue of compensation comes after a finding of unfair dismissal. Therefore first it must be established that the dismissal was unfair.


Applicant: Takes oath and states: I am Zebedia Kaunda, C/o Mr. Makhalira, Box 1527, Blantyre. I know the respondent. They employed me in April 2001 to March 2002. I was working as Warehouse Supervisor. My last salary was K32300.00 per month.


Events


I was on leave in January 2002. There was a burglary at the warehouse in Limbe. On 14th January 2002 my immediate boss Mr Kandulu asked me to go back to work to relieve my colleague. I was also told that Auditors were coming and that we should prepare our records. However instead of going to Limbe for stork taking, I was taken to Limbe Police by my immediate boss. On 15th January 2002 I was granted bail by police. I was reporting for my bail till March 2003 when the case was concluded. I was acquitted on 14th March 2003. I received a suspension letter for theft – without pay till conclusion of the case.


Looks at letter – suspension letter. 17th January 2002 –


Court: ‘AP 1’


The letter stated that after the conclusion of the case my employer would deal with me.


Conditions of services – Looks at document –


Court: ‘AP 2’


Two months later in March 2002 I received the dismissal letter.


Looks at document – letter of dismissal.


Court: ‘AP 3’


I got the letter at my house. I did not go to the office after I received this letter. I was waiting for the conclusion of the case.


Employment > I was not informed that the job I was doing was on contract basis. I signed a contract of employed.


Looks at document – contract between myself and respondent I signed it.


Court: ‘AP 4’


After I was acquitted I took the court report to my employer but my employer said they could not retain me because they had employed some one to take my place.


Looks at document – court record.


Court: ‘AP 5’


My claim is not settled. The contract was unfairly terminated. It was renewable upon successful completion. I was assured of renewed contract. I was unconfirmed in employment.


Looks at document – letter of confirmation.


Court: ‘AP 6”


My complaint is that my contract was unfairly terminated and I need compensation. I was on suspension till case resolved in court of law. I therefore was still in the hands of the employer till conclusion of the criminal case. The contract was renewable upon successful completion.


The settlement is for:-


  • Accrued salary from January – March

  • Two months notice pay

  • Leave days

  • Gratuity and

  • Leave grant


I did not owe the respondent any money at the time of my leaving employment. The money has been with the respondent for too long. I need the court to look into the two queries (1) Advance – was not owed (2) Interest on admitted sums.


XXN: Article 1.6 – renewal of contract was subject to mutual agreement. The respondent did not renew my contract. The respondent employed another Warehouse supervisor to replace me meaning that my skills were still required and there was funding for the organization. My performance was good and that is how I knew the contract would be renewed. The respondent was free to employ somebody else. The respondent was not under legal obligation to employ me. The termination letter did not disclose any reason. Gratuity is payment but I don’t know what for. I rendered good service to respondent and the gratuity was paid as a thank you. The letter does not talk about theft. I did not collect my money immediately after termination because I choose not to collect it when it was ready.


Re examin: I did not collect my money immediately because the letter only mentioned gratuity – they owed me more money. I did not get the money because the criminal case was still on going. The suspension letter said a decision would be made after conclusion of case. I had the impression that the contract would be renewed according to performance. I was performing well.


Question by Court: I was working as Warehouse Supervisor. I was arrested in January 2002 till March 2003 when the case was concluded. It was not possible for the respondent to operate without Warehouse Supervisor. The respondent could not operate without Warehouse Supervisor. There was another Warehouse Supervisor. Other officers could operate in the absence of Warehouse Supervisor further my immediate boss could also work in the Warehouse.


Kalasa: I have two witnesses to call.


Court: Matter is adjourned to a date to be fixed for continued hearing.



R. Zibelu Banda (Ms)

CHAIRPERSON

10/02/2005


CORAM: R. ZIBELU BANDA (MS) – CHAIRPERSON

Makhalira of Counsel for the Applicant

Kalasa of Counsel for the Respondent

Chinkudzu – Official Interpreter


Kalasa: The Matter is coming for respondent’s case. I am ready with one witness.


RP: Takes oath and states: I am Chrissie K. Banda, CRS MW, Private Bag of B319, Lilongwe 3. I am the Executive Secretary to the Country Representative and Personnel Officer. I joined the respondent 2nd February 1998. I know the Applicant. He was our employee based at Blantyre Office. His services were terminated on 31st March 2002 – after his contract expired. He was on one year contract which was expiring on 31st March 2002.


The contract was renewable based on the availability of funding and other factors. The respondent was not interested in renewing the contract. The respondent was not interested because we no longer required his services. There was no specific reason given for not renewing the contract. They had the right not to renew the contract. The applicant was working as Warehouse Supervisor. The applicant was not the only Warehouse Supervisor. There were two. The respondent continued operating without his services.


XXN: The applicant was alone at the Warehouse at the time of termination because the other had died. Based on the applicant’s performance, the contract would’ve been either renewed or not. During probation the applicant had credit on performance. This non renewal of the contract was not based on the Applicant’s performance. The respondent was able to perform without the Applicant’s services. The respondent did not recruit a replacement immediately. The Logistics Officer was the one responsible for the Warehouse at the time the Applicant was away.


We eventually recruited other Warehouse Supervisors. We increased salaries for Warehouse Supervisors not based on performance but economic reasons. The Applicant was dismissed with benefits – he was asked to collect his benefits. I know Lora Mc Cathy – I don’t know whether she prevented the Applicant from reporting to our offices till the conclusion of the criminal case.


Kalasa: No re-examination.


Makhalira: Relief sought is loss of income which the Applicant would’ve earned from April 2002 to March 2003.


Court: Written submissions 7 days from today – not more then 3 pages – long.



R. Zibelu Banda (Ms)

CHAIRPERSON

09/03/06



CERTIFIED TRUE COPY OF THE ORIGINAL RECORD



R. Zibelu Banda (Ms)

CHAIRPERSON