Mbewe v Bestobell (MW)Ltd (IRC 265of 20044 ) (NULL) [2006] MWIRC 43 (12 April 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 11 OF 2004


BETWEEN:


CHABWERA……………………………………………. ……………...APPLICANT


-and-

MUNORURAMA INTERNATIONAL PASSENGER

TRANSPORT (PVT) LIMITED………………..…...…………………RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Kaukonde; of Counsel for the Applicant

Msusa; of Counsel for the respondent

Chinkudzu; Official Interpreter


JUDGMENT

Wrongful and unlawful termination-Damages-Notice period.


Background

The applicant was employed by the respondent in 1997. He alleged that he was dismissed on 11 August 2003. He challenged the dismissal and claimed damages for unlawful dismissal. A letter of termination was tendered by the applicant. The respondent challenged the letter but did not bring the signatory of the letter or the purported signatory to challenge the letter. The court finds as a fact that the applicant was dismissed. The dismissal was without notice. No valid justification was provided as to why the dismissal was without notice.


The Law

Upon hearing the evidence from the applicant and upon reading counsel for respondent’s submissions the court finds that the applicant was dismissed without notice. In Nkhwazi V Commercial Bank of Malawi [Civil Cause Number 233/1999 (unreported)], the court defined unlawful dismissal as a common law cause of action which entails that an employer acts unlawfully by terminating not according to the contract. A termination without notice, redounds to an action in damages.


In Council for the University of Malawi V Mkandawire [MSCA 38/2003 (unreported)] it was held that, ‘it is accepted that damages equivalent to a salary in lieu of notice are awarded to an employee whose services are wrongfully terminated. The reason is that the period of notice is the period at the end of which an employer may lawfully terminate an employment’.


In the instant case, the applicant not having received his notice pay the respondent was indeed in breach of the contract. The applicant has shown that he was wrongfully and unlawfully terminated. This claim therefore succeeds.


Damages

It has been held that: “It is now long established that damages equivalent to a salary in lieu of notice are awarded to an employee whose services will have been wrongfully terminated, see Council of the University of Malawi, above.


Finding

The court orders the respondent to pay the applicant K13 000-00 representing his one month salary as notice pay in lieu of notice. Please note that the claim in this case was unlawful dismissal and not unfair dismissal. For definitions and differences of the two, see, Kaunda V Catholic Relief Services [Matter Number IRC 198/2003 (unreported)].


Right of appeal

Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment in accordance with section 65 (2) of the Labour Relations Act.




Pronounced in Open Court this 12th day of April 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.