Chalira v ADMARC Investment Holdings Ltd (IRC 33 of 005)) (33 of 005) [2006] MWIRC 83 (03 July 2006);

Share
Download: 


IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 33 0F 2005


BETWEEN


CHALIRA ………………………………………………………………... APPLICANT


-and-


ADMARC INVESTMENT HOLDINGS LTD ……………………… RESPONDENT



2.25 P.M. 22/08/05


CORAM: M. TEMBO – DEPUTY CHAIRPERSON

Applicant – Present
Kalua of Counsel for the Respondent
Chinkudzu – Official Interpreter

Court: Can we proceed with applicant’s testimony.

Chalamanda: I’ve one witness.

Kalua: I’ve two witnesses. They are not present. They are in Lilongwe since last week and couldn’t come because we got the notice of hearing a bit late.


Court: The applicant can testify.

AP 1: Adult/male sworn and states in English. I am Dr Zaki Chalira of P. O. Box 30999, Chichiri, Blantyre 3. I started working for respondent on 1st August 2003 as a General Manager for respondent and its groups of companies. I’d an offer of employment letter signed by the then Chair of the respondent’s of Board Director Dr Chipala. I tender the offer letter in evidence.


Court: The offer letter shall be Exhibit AP 1


AP 1: The employment was for 3 years contract effective 1st August 2003 and was expected to run to 31st July 2006 I’ve a copy of my contract of employment and I tender it in evidence.


Court: Contract of employment shall be Exhibit AP2


AP 1: I stopped working for respondent on 1st December 2004. I was called by the Chair of the respondent 2 days before 1st December 2004. Mr Mwale was the chair then. He informed me that himself and then Respondent’s Board had received instructions from Dr Bingu Mutharika, through the Chief Secretary of Public Service Dr Matabwa, to terminate my services immediately. So later the same day I received a letter from Mr Mwale confirming what he’d told me. I’ve a copy of the letter of termination. I tender this in evidence. I was told to leave within 2 days .


Court: Letter of termination shall be Exhibit AP 3


AP 1: I’d also like to offer an evidence a letter from Dr Matabwa to the Chair of Respondent instructing him to terminate my services. I tender this in evidence.


Court: The letter of instruction to terminate shall be Exhibit AP 4


AP 1: Before the termination I wasn’t called to explain my side of the story neither was I given reasons of the termination. Actually the chair of respondent said that when the respondent Board met they resolved to write Dr Matabwa to write me giving reasons for termination.


The Chair confirmed the writing and faxing of such letter to Dr Matabwa in OPC. Two Directors Mr Jafu and Dr Mvula repeated this when I went to say bye to them that they wrote and faxed Dr Matabwa on the reasons. I want this court to consider me on the termination, without any reasons. I got my last salary of November 2004. Now 9 months later I’ve nothing.


My contract was to run up to July 2006. I seek appropriate compensation for the remaining contract period and of now since I am going through a lot of hardships I ask for some kind of relief immediately. End of XN of AP 4 by Chalamanda.


XXN of AP 2 BY KALUA:


I voluntarily signed this contract of employment. Exhibit 2. I read its contents. I knew that this contract would be terminated before July 2006 in accordance with its provisions and those of the laws of Malawi the Constitution of Malawi. I knew that this contract would be terminated on payment of 3 months notice. The termination was confirmed to me by the Respondent’s Board Chair on instruction from the President.


Terminal benefits for me were calculated and I didn’t agree with them. I don’t recall what respondent was to pay me as per the calculations. I don’t recall the exact sum I owed the respondent but it was just over K1 million. End of XXN for AP 1.


XXN of AP1 by Chalamanda: None.


End of XXN of AP1


Court: This matter is adjourned to Friday 26th August 2005 at 8.00 a.m.



M. Tembo

DEPUTY CHAIRPERSON

22/08/05



8.20 a.m. 26/08/05


CORAM: M. TEMBO – DEPUTY CHAIRPERSON

Chalamanda – Counsel for the Applicant

Kalua – Counsel for the Respondent

Chinkudzu – Official Interpreter



Court: Are the respondent’s witnesses present?


Kalua: My witnesses are not around there is a reason for that. Initially I decided to call members of the respondent’s Board to testify. Last time the proposed witnesses were in Lilongwe. I later found out that there was a reshuffle of boards of parastatals and those people have since been relieved of their duties. Then we settled on one witness then Acting General Manager of respondent Miss E. Mwapasa. She is not here now. I was trying to reach her but I cant get hold of her. Maybe the decision to switch witnesses took her by surprise. There was a short notice. As such I seek this courts guidance if its kind enough to adjourn this matter further. Otherwise, the respondent is desirous of concluding this matter without any further delay.



Chalamanda: Its unfortunate that we cant proceed with the respondent’s witnesses given the fact that we had to apply for an expedited hearing since applicant has to go to RSA – I think the respondent weren’t serious enough in summoning their witnesses. The delay will now be inordinate and prejudicial to our client. I leave it in this court’s hands to adjourn this matter or to decide on the evidence before this court.


Court: The absence of the respondent’s witnesses is most unfortunate. Nevertheless every person has to be given a reasonable opportunity to be heard as per the underpinning principles of civil procedure that this court follows. This court appreciates the changes to the Board of government enterprises that’ve taken place and recognizes that the same might have had an effect in the present case.


In the circumstances this matter shall be adjourned one more time if the respondent doesn’t appear this court shall decide on the evidence before it. The adjournment shall be to next week on 2nd September, 2005 at 10.00 a.m. for continuation of hearing.


M. Tembo

DEPUTY CHAIRPERSON

26/08/05



10.22 A.M. 02/09/05


CORAM: M. TEMBO – DEPUTY CHAIRPERSON

Chalamanda – Counsel for the Applicant

Kalua – Counsel for the Respondent

Chinkudzu – Official Interpreter


RP 1: Adult/female sworn and states in English. I am Evelyn Mwapasa of c/o Admarc Investment , Private Bag 76, Blantyre. I am Acting General Manager. I have been about in this capacity since 1st December 2004. I know the applicant. He is my predecessor he was General Manager of respondent up to around 30th November 2004. Then I was Finance Manager. After applicant ceased being General Manager I became a Acting General Manager (shown Exhibit AP 2).


I know this document its’ a contract of employment between respondent and the applicant entered into in 2003. (referred to clause 5). This contract was to be terminated as per clause 5 (reads) clause 5 – 1, 5 – 2). This contract was terminated according to clause 5 – 1 and that provision was complied with, the respondent paid the applicant in lieu of notice. End of XXN of RP 1 by Kalua.


XXN of RP 1 By Chalamanda


Applicant was employed as General Manager of respondent. He was employed by the respondent. Respondent would fire the applicant I don’t think anybody else would fire the applicant apart from the respondent (shown exhibit AP 3 and AP 4). Exhibit AP 4 was written by the Chief Secretary for Public Service. The termination of applicant’s employment was on the State President’s direction through the Chief Secretary to the President and Cabinet. The two are not on the of Board of Admarc. The two directed the termination of the employment of applicant. The respondent then terminated the applicant’s employment. The termination came after the directive from the President.


I don’t know if the applicant was given any reason for the termination but in the contract no reason was to be given. I was Finance Manager at time of termination of applicant employment. End of XXN of RP 1 by Chalamanda


XXN of RP1 by Kalua


The applicant’s contract of employment was terminated by respondent. The termination was done by paying to applicant 3 month’s salary in lieu of notice plus gratuity in keeping with the contract of employment. End of XXN of RP1 by Kalua.


Court: Is there any other witness?


Kalua: None.


Court: In this case this court finds on the evidence so far that the termination of employment herein was unfair as the respondent did not have a valid reason to terminate the applicants’ employment neither did the respondent give the applicant a chance to explain himself on the reasons proffered against him on the termination. This was in direct contravention of the provisions of section 57 Employment Act which requires an employer to terminate employment only for valid reasons to do with conduct and only after giving an employee a chance to be heard on such reasons. The assessment of compensation due shall be assessed at a later date. And a fully reasoned decision of this court shall be delivered within the next 21 days.



M. Tembo

DEPUTY CHAIRPERSON

02/09/05



CORAM: R. ZIBELU BANDA – CHAIRPERSON

Chalamanda of Counsel for Applicant

Kalua of Counsel for Respondent

Chinkudzu – Official Interpreter


Kalua: I appear for the respondent and we have filed a notice of appeal – we are appealing against the whole decision of the Deputy Chairperson. We would therefore like to seek for stay of assessment.


Chalamanda: I object this application on these grounds – (1) the appeal has come late, (2) the successful litigatant cannot be denied of the fruits of his litigation (3) there’s no likelihood of success on appeal (4) the appeal is to the High Court therefore therefore this application should’ve been lodged to the High Court.


Court: It is by law that appeals from this court should be lodged within 30 days of the decision according to section 65 Labour Relations Act and according to Industrial Relations Court (Procedure) Rules 1999, this time limit can not be abridged, secondly, indeed a litigant should not be denied fruits of his litigation (numerous very current supreme court decisions to this effect) further, It is also by statute that the lodging of an appeal against the decision of this court does not stay any execution of the decision being appealing against.


I therefore order that assessment should proceed.


Chalamanda: We are ready to proceed.


AP: Takes oath and states: I am Dr Zaki Chalira, Box 30999, Chichiri, Blantyre 3


Heads of compensation.


Terminal benefits –


  • Salary from 1st December 2004 – 31st July 2006 when the contract would have ended normally. My last salary was K357273.00 per month including salary adjustments from 1st June 2005 at 15% - cost of living adjustment – this raises my salary to K410864.00 per month from 1st June 2005 to 31st July 2006.

  • Housing allowance – m 1700000.00 from 1st June 2004 to 31st July 2006 at K85000.00 per month.

  • Gratuity – from 1st August 2003 when contract commenced to 31st July 2006 – this is K28330255.00 – 1st 6 months 25% of salary of this was taxable; after 1st 6 months it was tax free – 25% of salary.

  • School fees for children – 2005 – 2006 amounting to K3570750.00 – I was entitled to school fees and incidentals for up to three children at designated schools.

  • Leave days – accrued and remaining days – 84 leave days basing on the monthly salary this cover to MK1035836.60 – totals into account the salary adjustment.

  • Telephone use – I was entitled to limitless us of telephone K718184.84 – from arrears up to December 2004 to time of actual end of contract.

  • Cell phone – I am claiming arrears and bills up to end of contract totaling K935703.63.

  • Water allowance – I was entitled to all water bills limitless K406007.63 –

  • Electricity allowance – K164999.25 it was limitless allowance.

  • Medical benefits – I am claiming K327678.00 based on actual bills paid to the medical institutions –

  • Directors fees – I am claiming K602761.00 – I was sitting on boards.

  • Club membership – I am claiming K29500.00 –

  • Motor vehicle use – K799958.33.


Looks at document – contract I would like to tender the contract of employment –


Court: APP1


The medical bills withdrawn.


AP: I am not working. I am an Economist and have also done banking. I am a professional and skilled and highly experienced. I am not working because my services were terminated, I tried to apply for jobs but I was not picked. I applied for jobs at Malawi Red Cross Society of Chief Executive – I applied at Stanbic, I applied at Nedbank, I’ve applied to several international institutions and some NGOs – the response has been mixed – I was phoned by Mr Chisala of Stanbic that I might have been over qualified – I have not received any formal responses other than those –

High Court decision suggests that one has to prove negative responses from prospective employers as a mitigating factor – MEET vs Kalowekamo.


XXN: No cross examination. I however would like to request for the submissions from the applicant on the heads of compensation. I will need a couple of days to respond in written submissions. I would like to apply for an adjournment of the matter so that I can call a witness.


Chalamanda: I understand that we will need to adjourn.


Court: The matter is adjourned to a date to be fixed for continued hearing. My clerk will try to get you a specific date. Adjourned to a date to be fixed.



R. Zibelu Banda

CHAIRPERSON



CORAM: R. ZIBELU BANDA – CHAIRPERSON

Dr Chalira – Present

Respondent – Absent no excuse

Chinkudzu – Official Interpreter


Dr Chalira: I would like to proceed in the absence of my lawyer. I am the one who is suffering. I am here, I waited for the hearing which is today.


Takes oath and states: I am Dr Zaki R. Chalira, Box 30999, Blantyre 3 – I was employed 1st August 2003. Termination on 1st December 2004.


Relief > I made submissions on 4th December 2005 – the defence intimated to bring a witness there was an adjournment. We came to court for continued hearing only to find a stay of proceedings. The stay was thrown out at the High Court judgment – the matter was coming to day for continuation of assessment. No one is here.


Court: Matter will proceed to an order because the applicant gave evidence. The respondents were given an opportunity to XXN and to bring witnesses but they have not complied with that order, they have decided not to utilize the right to a hearing or response to the applicant’s case as such the matter will proceed to an order basing on the evidence on record – order of assessment in 21 days time.


R.Zibelu Banda

CHAIRPERSON

20/10/03/06


CERTIFIED A TRUE COPY OF THE ORIGINAL RECORD


Rachel Zibelu Banda

CHAIRPERSON 3 July 2006