Gideon v Population Services International (IRC 174 of 2005 ) (174 of 2005) [2006] MWIRC 59 (23 May 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. 174 OF 2005


BETWEEN


GIDEON ………..………………………………………………………… APPLICANT


-and-


POPULATION SERVICES INTERNATIONAL… ………………..RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson
Applicant; present
Respondent ; absent no excuse
Gowa; Official Interpreter




ORDER IN ASSESSMENT OF COMPENSATION


Compensation-Justification-Just and equitable-Loss-Factors-Mitigation-Contributory fault-Heads-Immediate-Future.


Background

The applicant was employed in January 1996. Her services were terminated on 19 August, 2004 on grounds of ill health. She challenged the termination and the matter came for trial where it was found that: ‘On the facts of the instant case, the court finds that the reason for terminating the applicant’s services was not established. The termination was therefore substantively unfair for want of valid reason, which is contrary to section 57(1). The termination of the applicant’s services on grounds of ill health was also unfair for failure to follow a fair process of investigation and consultation, in the form of a fair hearing, an omission contrary to section 57(2). This action therefore succeeds on both substance and procedure’.


The matter came for assessment of compensation where the respondent did not attend and no excuse was given for failure to attend court. The matter proceeded in the absence of the respondent in accordance with section 74 of the Labour Relations Act.





Loss

The applicant gave evidence that she lost income due to the unfair dismissal. She was receiving a salary, house allowance and transport allowance every month. She since the termination is not able to get the money that she was entitled to under the contract.


Mitigation

The applicant told court that it was very difficult to secure alternative employment. She applied for a job at Banja La Mtsogolo and at the Ministry of Agriculture and several other places but in vain. It was her plea that she had tried to mitigate her loss but there was no job offer for her.


Factors to Consider

Section 63 of the Employment Act provides that where an employee succeeds in unfair dismissal claim she must get a remedy. Compensation is one of the remedies under that section. The factors to consider in assessing compensation are that the compensation must be just and equitable under the circumstances. The loss suffered must be considered in light of whether the employer caused the loss or not. In this case the applicant gave evidence that she lost an income through salary, house allowance and transport allowance and that this loss was due to the unfair conduct of the employer.


Contributory Fault

The next question is whether the employee contributed to the loss. In this case the applicant was afflicted by ill health which she had no control over. She attended to medical attention and was receiving treatment. Therefore it is found as a fact that the applicant did not contribute to the loss. The loss was wholly as a result of the respondent’s action in dismissing without proper investigation and consultation on the true medical fitness of the applicant.


Heads of Compensation

There are two heads of compensation that this court can award according to prevailing precedent on unfair dismissal cases (as distinguished from the common law cause of wrongful or unlawful dismissal). The employee must be considered for immediate loss which covers the period from time of dismissal to time of judgment where the employee has not secured alternative employment. In this case the applicant has shown that she has not been able to get alternative employment. She is therefore entitled to equivalent of salary from the effective date of termination being 31 September 2004 to 12 May 2006. The applicant’s last net salary was K6 472.49. The total loss in terms of salary is therefore that salary multiplied by the number of months from date of termination to date of judgment= MK122 977-31.


The applicant was entitled to housing allowance of MK 1941.74 per month, she is entitled to house allowance for the same period as in salary above because the applicant lost this allowance due to the unfair dismissal: MK36 893-06.


Transport allowance is also awardable because the applicant’s gave evidence and her pay slip showed that she was entitled to K 2750.00 as transport allowance. It is ordered that respondent compensate the applicant for the loss of the transport allowance for the same period as above. She is entitled to MK52 250-00.


Future Loss, an employee may also be awarded future loss where it can be proved that her chances of securing alternative employment were completely diminished due to factors like age, the economy or skills of the employee. The applicant is a fairly young lady, clever by her standards. It is likely that with luck in this hostile economic environment the applicant will eventually secure employment. The court therefore does not find good justification for an award of future loss beyond what has already been awarded.


Order

The applicant is therefore awarded a total of MK212 120-37 as compensation. This order is with immediate effect. Payment must be made to the Industrial Relations Court.


Any party aggrieved by this decision is at liberty to appeal. Appeal lies in the High Court on points of law and jurisdiction only and must be lodged within 30 days of this decision in accordance with section 65 (2) as read with Rule 27 of the Industrial Relations Court (Procedure) Rules 1999.



Pronounced in open court this 23rd day of May 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON