Fungatira v Auction Holdings Ltd (RC 374 of 20055 ) (374 of 20055) [2006] MWIRC 26 (16 March 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 374 OF 05



BETWEEN


FUNGATIRA ……………………………………………………. ……APPLICANT


-and-


AUCTION HOLDINGS LTD ……………………………………… RESPONDENT




CORAM: R. ZIBELU BANDA - CHAIRPERSON
Likongwe of counsel for respondent
Gulumba of counsel for applicant
Chinkudzu – Official Interpreter


App 1: Takes oath and states : I am J. Fungatira Box 5970, Limbe. I was employed on 1/11/78 by respondent as permanent employee till 2004. In 2004 I was employed on three year contract.


Looks at document - contract – dated 23/02/04 - it’s a 3 year contract


The contract was terminated after 2 seasons


Clause 16.2 – termination


Court: APP 1


Looks at document – restructuring – date 2/08/2005 - This time tobacco selling had been completed at Limbe, but was continuing in other floors. The transaction in the other floors had no connection with the Limbe floors.


Court: AP2 – letter of termination I was on contributory pension scheme.


Terminal benefits – I only got severance allowance – pension was not paid. We were surprised that some got both while some of us only received severance allowance. For example Mrs Phoya told me that she received both pension and severance allowance. I did not know that I was overpaid. I was not aware that I had been paid more. I did not play a role with the calculations of severance allowance. The respondent indicated that they paid tax deducted from my severance. I wasn’t aware that they were deducting tax.


Looks at document – severance computations


It does not show any tax deductions


Court: AP3

Looks at document - Pension computations


It mentions tax – deducted from the pension


Court : AP4

Looks at document - Pension benefits for Mrs D. Phoya –( a colleague )


Court :AP5


Looks at document - restructuring Mrs Phoya - severance allowance


Court: AP6


XXN: The season in Limbe was over as of 2/08/05 – the season was over as at 2/08/05. I received notice pay.


Severance allowance - I got my severance allowance but not pension


This was January 2004. I was supposed to be paid either pension or severance allowance. I complained in 2005 because those who received later got both pension and severance allowance


AP5 – 7/09/2004

AP6 – 2/08/2005


I was not on pension in August 2005. Mrs Phoya was not retrenched in January 2004. the time of retrenchment between myself and Phoya was different. Laws I don’t know whether the law had changed at this time. I received K2.7 million – severance allowance. I did not expect anything else after this.


I was employed in November 1978. My salary then was around………… I cant remember.


Looks at document – in 1982 – my salary was K3966 per annum


Looks at document - salary progression from 1981 – Its possible that between 1981, I was getting less.


Tax – it has not been deducted from my severance allowance.


Looks at AP4


Total contributions – on AP4

Less tax


This was lower than we got as severance allowance


Re - Exam Letter of 2/08/05 – termination


Letter to Mrs Phoya – 2/08/05


Reasons for termination were restructuring – they are the same reasons as those in the Phoya case.


There was no consultation.


There was no consultation on tax deduction


Question By Court: January 2004 - we were given the letter terminating our permanent contracts. We got severance allowance in January 2004.


Mrs D. Phoya – she got her severance allowance in August, 2005. Her contract was not terminated in January 2004


Termination 2/08/05

Terminal benefits gratuity

Severance pay

Leave pay

Notice pay

Days worked


Court: Written submissions - not more than 3 pages long


Ruling - 21 days




R.Z.Banda

CHAIRPERSON


16/03/06


CERTIFIED AS A TRUE COPY OF THE ORIGINAL