Changa v SS Rent A Car 2000 Ltd (IRC 37 OF 2005 ) (NULL) [2007] MWIRC 18 (13 February 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI



PRINCIPAL REGISTRY



MATTER NO. IRC 37 OF 2005



BETWEEN


CHANGA...……………………………………………………………….. APPLICANT



-and-



SS RENT A CAR 2000 LTD……………………………………………RESPONDENT



CORAM: R. Zibelu Banda (Ms), Chairperson

Applicant; Present
Respondent; Absent without excuse
Chinkudzu; Official Interpreter



ORDER IN COMPENSATION


On 14 December 2006 this court found that the applicant had proved on a balance of probabilities that his dismissal was unfair in terms of section 58 of the Employment Act. The court advised both parties to attend the assessment of a remedy but only the applicant attended court on the appointed day. There was no word from the employer’s representatives. This was consistent with the previous conduct of the respondent in this matter. The matter proceeded to disposal in accordance with section 74 of the Labour Relations Act that mandates this court to proceed with hearing in the absence of a party who fails to attend court without any reason.


Assessment of remedy

The applicant resigned after a pattern of verbal abuse from his employer that made continuation of the work relationship impossible. Where a court finds that a case of unfair dismissal is well founded it can award one of several remedies including reinstatement, re-engagement and compensation. In determining the appropriate remedy, a court must first consider the remedy of reinstatement, section 63 of the Employment Act. It was obvious from the conduct of Mrs Singh, who represented the respondent that she did not want to have anything with the applicant. It would be impractical to make an order of reinstatement in such a case.

Where reinstatement is not practicable the court must consider compensation. The applicant prayed for this remedy. The applicant has tried to mitigate his loss through seeking alternative employment to organisations like CEAR and SKIPCO but he could not be employed. The applicant did not contribute to his dismissal. He had worked diligently for the employer without any warnings or acts of misconduct. The applicant has Diploma in Accounting; he is 52 years old and in poor health.


The Supreme Court of Appeal approved 57 months salary as just and equitable compensation in Stanbic V Mtukula [MSCA Civil Appeal Number 34 of 2006 (unreported)]. In that case the circumstances of the complainant were not as bad as the circumstances in this case as outlined. It is noteworthy that in assessment of compensation, each case must be assessed according to its own facts. It was also held in the Mtukula case that appellate courts should be slow in interfering with the assessment of compensation of trial courts. Section 63(4) of the Employment Act talks of just and equitable compensation in relation to the consideration of the trial Court. It states in the relevant part: “An award of compensation shall be such amount as the Court considers just and equitable in the circumstances…..”


Taking all factors into consideration in awarding compensation under section 63; the court awards the applicant the equivalent of 72 months remuneration representing loss of remuneration from January 2004 when he was dismissed to date of this assessment. A further period representing three years from date of assessment representing future loss is added. The applicant was receiving MK 19 000-00 as salary and house allowance. Total award under this head is MK 1 368 000-00.


The court has come up with this award because the applicant has since prior to the termination suffered bouts of ill health which have eventually prevented him from securing any employment. Further his chances of securing any employment have diminished due to age because at 52 years now, it is unlikely that the applicant could compete favourably with the younger and energetic job seekers holding similar qualifications as him.


It was held in Fougere V Phoenix Motor Co Ltd [1976] IRLR 259 EAT; that in estimating the length of time that a successful complainant is likely to remain unemployment for the purpose of assessing compensation for unfair dismissal, an Industrial Court should take into account as one of the circumstances the personal characteristics of the person dismissed, such as that he was elderly or in poor health, provided these characteristics existed at the date of dismissal.


This order of compensation of MK1 368 000-00 is with immediate effect. Any aggrieved party is at liberty to appeal to the High Court within 30 days of this order.


Pronounced this 13th day of February 2007 at BLANTYRE.


Rachel Zibelu Banda

CHAIRPERSON