Ngoma v Kwakupokera PVT Secondary School (IRC 28 of 2007) (28 of 2007) [2007] MWIRC 45 (23 July 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI



MZUZU REGISTRY



MATTER NO. IRC 28 OF 2007



BETWEEN

NGOMA…….……………...........................................................................APPLICANT


-and-

KWAKUPOKERA PVT SECONDARY SCHOOL…………………RESPONDENT


CORAM: R. Zibelu Banda (Ms); Chairperson
Applicants; present
Stirling; Managing Director/ Proprietor; for respondent
Bondo; Official Interpreter

ORDER

  1. Severance allowance-Section 35 Employment Act-Mutual or unilateral termination
  2. Resignation-Unilateral termination by employee-Not entitled to severance allowance
  3. Severance allowance-Calculations-First schedule to section 35 Employment Act-One year minimum period of service
  4. Notice pay-served or payment in lieu of service-section 30 (3) Employment Act


Upon hearing the applicant and upon hearing the response from the respondent the court finds that the applicant is not entitled to severance allowance under the first contract with the respondent. The reason is that the applicant resigned from employment. This was a unilateral termination at the initiative of the employee. Section 35 of the Employment Act only covers unilateral termination by the employer, see Chimimba v Christian Health Association of Malawi [Matter Number IRC 453/2002 (unreported)] IRC. Therefore this claim is dismissed.


The applicant further alleged that he was not paid severance allowance under the second contract where he had served for four months. A reading of the First Schedule to section 35 of the Employment Act shows that severance allowance is calculated from service of one year. This makes sense because the essence of severance allowance is to award long serving employee, see, Japan International Cooperation Agency v Jere [Civil Appeal Number 25/2002 (unreported)] HC. It follows that any employee who serves for a period less than 12 months is not entitled to severance allowance. This claim is therefore dismissed.

Counterclaim

The respondent counter claimed from the applicant for notice pay. She alleged that the applicant took off without serving notice. However she did not wish to pursue the counter claim. It was withdrawn.


Finding

The applicant’s claims for severance allowance are dismissed because they do not have merit in law. Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: See section 65 (2) of the Labour Relations Act 1996.


Made this 23rd day of July 2007 at MZUZU.



Rachel Zibelu Banda

CHAIRPERSON