IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 53 OF 2006
MWANZA(MS) . .... APPLICANT
- WORLD VISION MALAWI .. RESPONDENT
- CORAM: R. Zibelu Banda (Ms.); Chairperson
Majamanda; of Counsel for the Respondent
Bondo; Official Interpreter
ASSESSMENT OF REMEDY
Unfair dismissal-Remedies-Reinstatement-Principal remedy
Fixed contract-where contract expires-Expiry date terminates contract
Reinstatement not appropriate where contract expires before judgment
Compensation-Alternative remedy-Must be Just and equitable
Special compensation- Where reason for dismissal is discriminatory- Prohibited under section 57(3) Employment Act
Marital status-Falling pregnant out of wedlock-Not valid reason for termination of employment-Prohibited under section 57(3) Employment Act
Pregnancy-Not ground for dismissal-prohibited under section 49 Employment Act
The applicant was employed on a fixed term contract as Data Entry Clerk. The contract was to run for four years from 10 January 2001 expiring on 10 January 2005. On 22 December 2003 her services were terminated. The reason for termination was that she had committed an act of misconduct by falling pregnant out of wedlock. It was summary dismissal according to the letter of termination dated 22 December 2003. However salary for three months was paid in lieu of notice and other terminal benefits were paid up to date of effective termination.
The applicant challenged the dismissal and took out this action against the respondent. The respondent conceded that the reason for termination was not valid. They asked that the matter proceed to assessment of an appropriate remedy.
Assessment of remedy
The applicant asked for the remedy of reinstatement. Reinstatement is the principal remedy in cases of unfair dismissal. In this case however it was not the appropriate remedy because at the time of the assessment the applicants fixed contract had already expired by lapse of time. The contract expired on 10 January 2005. According to Kalowekamo v Malawi Environmental Endowment Trust (MEET) [MSCA Civil Appeal Number 28/2005 (unreported)] SCA, a fixed contract is brought to an end at the lapse of the time fixed or completion of the task. Therefore in this case, the contract was terminated on 10 January 2005 and hence the applicant would not be reinstated.
Compensation is the alternative remedy. Section 63 (4) provides that compensation shall be just and equitable. In a fixed contract as this case, compensation would cover the lost benefits for the unexpired period of the contract. Under the circumstances of this case, there was no contributory fault on the part of the applicant therefore compensation must be made in full as the respondent contributed wholly to the loss of income of the applicant.
The court therefore awards the applicant lost benefits for period from effective date of termination 22 March 2004 to 10 January 2005 as follows:
Salary at the rate of MK16 456-00 per month for the unexpired period;
House allowance at a rate of MK 5 760-00 per month for a similar period;
Medical aid contribution at a rate of MK 620-00 per month for the same period;
Utilities at rate of MK 1 300-00 per month for the same period;
Leave grant at 40% of the salary for a similar period; and
Gratuity calculated at 25% of the salary for the same period
The court held that the respondent effected increments each year that the applicant was in service and even after she had been dismissed. The increments varied from year to year. An average increment was calculated at 17%. The court awards 17% increment on the six entitlements tabulated above.
The court makes additional award of compensation pursuant to section 63(5) (d) as read with section 57(3) of the Employment Act and section 49 of the Employment Act. Section 57(3) prohibits discrimination on the basis of ones sex, marital status and other status. Dismissal on grounds of pregnancy is prohibited under section 49, see Chisowa v Ibrahim Cash & Carry [Matter Number IRC 259/2003 (unreported)] IRC. Further dismissal on ground of marital status is discriminatory and prohibited, see, Mwanamanga v Malamulo Mission Hospital [Matter Number IRC 124/2003 (unreported)] IRC.
Having considered the gravity of the discrimination and having considered the circumstances of the case, for instance that the respondent readily conceded liability, the court awards the applicant additional compensation calculated at equivalent of three months benefits as tabulated above for a period of twelve months. These benefits should be calculated taking into account the 17% increment.
The Assistant Registrar of the High Court Mzuzu to calculate the compensation as ordered in this judgment. These two orders are with effect 7 days from the date of this judgment.
It may be noted that the worst that may have come out of a case of this nature would have been a criminal prosecution under section 49 of the Employment Act which attracts a fine of MK 200 000-00 after converting the fine and to imprisonment (probably of the officer who made the decision) for five years. This would be over and above any compensation and other orders stipulated in section 49(3) and subsection (4) of the Act.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment in accordance with section 65(2) of the Labour Relations Act. The lodging of an appeal against this decision does not in itself stay this order; see section 65(3) of the Labour Relations Act.
Made this 23rd day of July 2007 at MZUZU.
Rachel Zibelu Banda