Chiomba v Mtsogolo (IRC 227 of 2002 ) (227 of 2002) [2006] MWIRC 84 (03 July 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 227 OF 2002


BETWEEN


CHIOMBA …………………………………………………………… APPLICANT


-and-


BANJA LA MTSOGOLO …………………………………………. RESPONDENT



CORAM: R. ZIBELU BANDA – CHAIRPERSON
Ngwira of Counsel for Applicant
Kanyenda of Counsel for Respondent
Karen – Research Assistant
Chinkudzu – Official Interpreter

Court: I notice that the claim is for wrongful or unlawful. The remedies for these are under the common law: notice pay equivalent. Is this what you are claiming or you’re claiming under the cause of action of unfair dismissal, in which case you should amend the statement of claim?


Ngwira: My client’s claim is for wrongful or unlawful termination as indicated in the statement of claim and we do not intend to amend, we will proceed on the basis that this is a wrongful/ unlawful dismissal.


Court: In that case we will proceed on the basis that this is a claim for wrongful or unlawful termination.


AP: Takes oath and states: I am Hariet M. Chiomba, Box 2164, Blantyre. I was employed in September 1998, as Nurse Provider after two years I was promoted to Clinic Manager. I went to Head Office in December I thought I was going to be appraised. I found the Director and Human Resource Manager. The Director said if I told the truth, I would be saved. They accused me of writing anonymous letters and giving false news to the press. He asked me to explain. I said I did not know anything. They suspended me there and then. Suspension letter 15th November 2001- I did not attend the meeting mentioned in this letter.


Court: ‘AP 1’


I was on suspension for 15 days.


Looks at document – 30th November 2001. It’s a serious warning – I asked why I was warned when I had been told that I was innocent on the allegations that led to my suspension.


Court: ‘AP 2’


Looks at document – letter from myself to the Banja La Mtsogolo Management – 4th December 201 – I was asking for management to withdraw the serious warning to me.


Court: ‘ AP 3’


I worked up till January 2002 – I went on leave in February – while on leave I got the letter of termination.


Looks at letter – No reason of termination Hearing – None.


Court: ‘AP 4’


Relief: Pension and severance allowance.


XXN: On 16th November 2001 I met management and they gave me the suspension letter. The allegation was that I was authoring anonymous letters and that I had given information to the press about Banja La Mtsogolo. I told them that I knew nothing about what they were talking about. I was given reasons why I was being suspended. I was paid notice pay 3 months salary.


Severance allowance – I did not lodge a claim on severance allowance to the District Labour Office. I am claiming severance allowance for the three years that I worked for. I joined September 1998 to February 2002.


Pension – I don’t know how much money was due to me on pension.


Re examn: None


Kanyenda: I have one witness –


RP 1: Takes oath and states: I am Boniface Msesa, Box 3008 Blantyre. I work for Banja La Mtsogolo as Team Development Manager. The applicant was a member of the pension scheme. She was entitled to K10556.84 as pension. I am not sure whether the applicant received this money or not. I have to check with the office. I have a discharge certificate on pension.


Court: ‘RP 1’


XXN: I am not sure whether the applicant was paid pension or not. The applicant was supposed to sign that she had received the money. The applicant was supposed to sign the form.


Ngwira: This is the close of my case.


Ngwira: The applicant was not given an opportunity to be heard nor were the reasons for termination given to her. It is her prayer that damages be awarded to her. Further she was not given all benefits due to her. Some of the benefits have been held by the respondent for 3 years and this is unfair. We therefore pray to this court that damages be awarded to the applicant.


Kanyenda: The applicant was afforded an opportunity to be heard in relation to the ground for termination on 16th November 2001. She was confronted in relation to the allegation and she made her representations. In the event that the respondent is held liable for wrongful dismissal damages to cover the period she would have served notice had the respondent unlawfuly terminated the contract. This position is found in Chawani vs A/G; Urban Mkandawire vs MSCA, Giant Clothing.


In the instant case the applicant disclosed that she was duly paid her 3 months notice. On the strength of authorities the applicant cannot claim anything – our prayer is that the applicant’s claim be dismissed.


CT: Severance allowance – The applicant has conceded that she did not present her claim to the Labour Office – this court in Kungaume vs Steel Supplies IRC 269 of 2003 following Sokalankwazi V SUCOMA (High Court) – held that where an applicant wishes to make claims for severance allowance, it must first be made before the District Labour Officer – section 35 (8) failure to comply with this condition is fatal and the court is obliged to dismiss the claim. On the facts and applicable law, the applicant is not entitled to claim severance allowance before lodging her claim with the Labour Office.


Pension: - There is no evidence on this aspect regarding whether or not be applicant was paid her pension contributions. There are indications that the respondent might have paid the applicant’s contribution. Perhaps this is an issue that must be reserved for assessment to enable both parties to adduce document evidence.


Action is dismissed on the basis that notice pay was paid in accordance with the contract. The dismissal was therefore neither unlawful nor wrongful. A written judgment to follow.


R. Zibelu Banda 21/09/2005


CERTIFIED A TRUE COPY OF THE ORIGINAL RECORD



Rachel Zibelu Banda 3 July 2006

CHAIRPERSON