INDUSTRIAL RELATIONS COURT OF MALAWI
NO. IRC 28 OF 2007
KWAKUPOKERA PVT SECONDARY SCHOOL
- CORAM: R. Zibelu
Banda (Ms); Chairperson
Director/ Proprietor; for respondent
allowance-Section 35 Employment Act-Mutual or unilateral termination
termination by employee-Not entitled to severance allowance
allowance-Calculations-First schedule to section 35 Employment
Act-One year minimum period of service
Notice pay-served or
payment in lieu of service-section 30 (3) Employment Act
hearing the applicant and upon hearing the response from the
respondent the court finds that the applicant is not entitled
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
employer, see Chimimba v Christian Health Association of Malawi
[Matter Number IRC 453/2002 (unreported)] IRC. Therefore this claim
applicant further alleged that he was not paid severance allowance
under the second contract where he had served for four months.
reading of the First Schedule to section 35 of the Employment Act
shows that severance allowance is calculated from service of
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.
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 It was withdrawn.
The applicants 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.
this 23rd day of July 2007 at MZUZU.