IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 121 OF 2005
MWAPASA . . APPLICANT
CROWN FASHIONS LIMITED . . ..RESPONDENT
CORAM: R. Zibelu Banda (Ms) Chairperson
Chima, for the Respondent
Chinkudzu; Official Interpreter
ORDER IN ASSESSMENT
Remedies for unfair dismissal-Reinstatement-Practicability-Compensation-Heads of compensation-Factors-Age-Retirement-Employability-Contributory fault.
Upon hearing both parties to this case and upon going through the court record, the court finds that the applicant could not be reinstated because the relationship between him and management had deteriorated so much that it would not be practicable to continue the employment relationship. The applicants alternative remedy is compensation.
Compensation is awarded where the court finds that the employee had suffered some loss. The applicant was employed in June 2004 as driver, in July 2004 he was assigned to personnel duties till February 2005 when his services were terminated due to what the respondent called incompetence. The court found that the termination was unfair because the applicant was not given the particulars of his incompetence so that he could improve.
The Employment Act section 63 (4) provides that an award of compensation shall be such amount as the court considers just and equitable in the circumstances having regard to the loss sustained by the employee in consequence of the dismissal in so far as the loss is attributable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal.
In the instant case the applicant had his services terminated unfairly therefore he lost an income in the form of wages. This loss is directly attributable to the action of the respondent. It is therefore found that the applicant be compensated by the respondent for this loss.
The loss that the applicant suffered in monetary terms must be just and equitable taking all the circumstances of the case into consideration. In this case, the court notes that the applicant had worked for less than 12 months, therefore his loss is not as great considering that he could easily have been a target of redundancy having been a new comer to the enterprise. In other jurisdictions this is a factor to consider in compensation cases.
However for purposes of our law the nearest that one gets in terms of compensating for loss of employment are the awards in severance allowance, section 35 where, according to that section a persons compensation is calculated in accordance with the number of years served. The lesser number of years served the lesser the compensation. The minimum period to qualify for severance allowance is 12 months.
In this case, taking all circumstances into account, I find that the equivalent of one month salary is just and equitable as compensation. I therefore order that the applicant be paid one month salary of a Personnel Officer.
The applicant also claimed for notice pay, I order that the applicant be paid notice pay that is applicable to Personnel Officers at the respondents company.
The applicant also prayed for unpaid leave days. I order that the respondent calculates leave pay proportionate to the months worked at the rate of Personnel Officers salary.
The applicant prayed for balance of salary of Personnel Officer. I order that the respondent calculates the salary of Personnel Officer less Drivers salary and pay the balance to the applicant from July 2004 to February 2005.
The applicant also prayed for Over Time pay. The respondent is ordered to calculate the Over Time pay accrued to the applicant and pay the applicant accordingly.
These orders are effective seven days from the date of this order. The calculations and the money to be submitted and paid into court within seven days of this order.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this date. Appeals lies only on matters of law or jurisdiction, section 65 (2) Labour Relations Act 1996.
Pronounced in Open Court this 27th day of January 2006 at BLANTYRE.
R Zibelu Banda (Ms.)