Namikungulu v Eastern Province (MW) Ltd (IRC 343 of 2004 ) (343 of 2004) [2006] MWIRC 24 (13 March 2006);




MATTER NO. IRC 343 OF 2004





CORAM: R. Zibelu Banda (Ms) Chairperson

Applicant; Present

Respondent; Absent (No excuse)

Gowa; Official Interpreter


Termination-Reason-Unilateral by the employee-Resignation-Constructive dismissal-Ill treatment-Working over time-Unpaid wages for over time-Whether this constitutes reasons for constructive dismissal-Section 60 Employment Act-Employee to prove the he worked over time-Severance allowance-Whether payable where employee resigns-Whether payable in constructive dismissal-Section 35 Employment Act.

The applicant gave evidence in the absence of the respondent who failed to appear on the appointed day and no reason was given for failure to attend court. The court heard that the applicant resigned from the services of the respondent because of ill- treatment. The ill- treatment was that the applicant was working more hours than stipulated either in the contract or the Employment Laws. He asked for wages for working over time on several occasions but the respondent did not pay. This according the applicant rendered his working conditions so unbearable than he could not continue with the employment contract but rather resign and claim constructive dismissal.

Section 60 of the Employment Act provides for constructive dismissal in the following terms:

‘An employee is entitled to terminate the contract of employment without notice or with less notice than that to which the employer is entitled by any statutory provision or contractual term where the employer’s conduct has made it unreasonable to expect the employee to continue the employment relationship’.

In terms of this section, the burden is on the employee to show that the employer’s conduct was so unreasonable that the employee could not be expected to continue with the employment relationship. The employee must show this through acts or omissions of the employer rendered against or to the disadvantage of the employee. As to what constitutes unreasonable conduct, therefore, depends on circumstances of each case. It is a case by case assessment. The determining factor was raised in Western Excavating (ECC) Ltd V Sharp [1978] IRLR 27 CA, Per Lord Denning MR: An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once.

Examples of unreasonable conduct:

In Fernandes V BIC Malawi (Pty) Ltd [Matter No. IRC 308 of 2002 (unreported)], the court found that the relationship between the employer and the employee had irretrievably broken down due to some misunderstandings emanating from the unilateral demotion of the applicant from managerial position, that it was unreasonable to expect the employee to continue in the employment relationship.

In Western Excavating (ECC) Ltd V Sharp [1978] IRLR 27 CA, Per Lawton LJ: Sensible persons have no difficulty in recognizing conduct by an employer which under law brings a contract of employment to an end. Persistent and unwanted amorous advances by an employer to a female member of his staff would, for example, clearly be such conduct.

In FC Gardner Ltd V Beresford [1978]63 EAT

In most circumstances it would be reasonable to infer a contractual term along the lines that an employer will not treat his employees arbitrarily, capriciously or inequitably in matters of remuneration.

In Stokes V Hampstead Wine Co Ltd [1979] IRLR 298 EAT

It was held that a refusal to pay over time payments for over time hours worked was a breach going to the root of the contract of employment entitling the employee to claim constructive dismissal.

In the instant case, this court is persuaded by the above decisions that failure to pay wages for over time is a material breach of a fundamental element in the contract of employment that goes to the root of the contract of employment entitling the employee to claim constructive dismissal.

Whether over time was worked

The applicant did not show the over time worked nor the money due. It is for the employee to show the details of over time worked, as remuneration is paid for work done. Therefore although the court has found that failure to pay overtime is ground to claim constructive dismissal, the onus is on the employee to prove on a balance of probabilities that over time was in fact due.

Since the applicant was unrepresented and probably unaware of the requirements of proof, the court offers him an opportunity to come back to court on a date which he should secure from the Registry for proof of his over time hours.

The court shall not determine the issue of severance allowance due to the applicant at this stage as it must be shown first that the applicant had accumulated over time hours and was not paid. The law provides in section 35 of the Employment Act, that severance allowance is payable in cases of unilateral termination by the employer. In cases where a court finds that there was constructive dismissal, the employer would be obliged to pay severance allowance. Where an employee resigns on his own freewill, severance allowance is not payable: Chimimba V Christian Health Association of Malawi [Matter No IRC 453 of 2002 (unreported)].

Pronounced in open court this 13th day of March 2006 at BLANTYRE.

Rachel Zibelu Banda