IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 67 OF 2005
SINGINI.... . . . APPLICANT
MALAWI REVENUE AUTHORITY . ..RESPONDENT
CORAM: R. Zibelu Banda (Ms) Chairperson
Respondent, absent without excuse
Bondo; Official Interpreter
ORDER IN ASSESSMENT OF REMEDY
Remedies for unfair dismissal-Reinstatement-Section 63 Employment Act-Primary remedy
Compensation-Alternative to reinstatement
Where employer refuses to reinstate employee-Special compensation
Severance allowance-Natural consequence of unilateral unfair dismissal by employer
Failure to attend court-Postponement-Governed by law- Application to postpone matter in IRC to be in accordance with the IRC procedures-Rule 17 Industrial Relations Court (Procedure)Rules.
On 8 September 2006 this court found that the respondent had unfairly terminated the services of the applicant. The court ordered that the matter should come for assessment of compensation. The applicant was confused as he had applied for reinstatement in his pleadings in IRC Form 1 and in his examination in chief. It was found that this was a typographic error on the part of the typist.
The court rectified the typographical error by ordering the matter to proceed to assessment of reinstatement. The respondent did not attend court but the matter proceeded on the basis of section 74 of the Labour Relations Act. An order for reinstatement was made to substitute an order for assessment of compensation.
Reinstatement is the remedy of first consideration in cases of unfair dismissal. A court must consider first the remedy of reinstatement before considering any other remedy: section 63 of the Employment Act. In considering this remedy the wishes of the applicant are an important factor and so too the circumstances of the dismissal. A court must also consider whether the applicant contributed to his dismissal. All these factors taken into account, the court found on 13 December 2006 that reinstatement was an appropriate order in this matter.
The respondent did not comply with the order of reinstatement alleging that there were two orders on file. They preferred the earlier order of compensation that was made erroneously in the judgment of 8 September 2006.
The applicant made an application for contempt of court for the failure of the respondent to comply with an order of reinstatement. A reading of section 63(6) of the Employment Act provides that where an employer fails to comply with an order of reinstatement, the employee shall be entitled to a special award of equivalent of 12 weeks wages, in addition to a compensatory award under section 63(4) and (5), also see Stanbic Bank Ltd v Mtukula [MSCA Civil Appeal Number 34/ 2006 (unreported)] SCA.
The court held that the applicant has since termination not been able to mitigate his loss. He has applied for alternative employment but has not been successful. He has remained unemployed from the date of effective termination to-date. The respondent did not contradict the applicant. In fact the respondent in their usual fashion according to the record, did not turn up for hearing. No reason was given nor any application made for an adjournment in accordance with the rules of procedures of this court.
The effective date of termination was 28 December 2001 taking into account the three months notice period. The applicant has lost salary and benefits amounting MK 14 000-00 per month according to his statement of claim and uncontested evidence.
The applicant is entitled to and is awarded wages and benefits calculated at a rate of MK 14 000-00 per month for a period from 28 December 2001 to date of this judgment, that is; 23 July 2007. The applicant is awarded a further sum equivalent to twelve weeks wages under section 63(6) of the Employment Act.
It is further ordered that the applicant is entitled to severance allowance for the same period, because had it not been for the unfair dismissal, the applicant would have been entitled to severance allowance which is mandatory under the law in cases of this nature, unless the applicant was caught in exceptions under section 35(6) Employment Act. An award of severance allowance is difference from and independent of an award of compensation, see Stanbic Bank Ltd V Mtukula supra.
The total award in this case is MK 1 015 000- 00 representing compensation for loss of benefits for 67 months, twelve weeks mandatory award under section 63(6) and severance allowance for five years under section 35 Employment Act. This order is with immediate effect.
Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this date. Appeal lies in matters of law or jurisdiction, see, section 65 (2) Labour Relations Act 1996. A notice of intention to appeal does not on itself stay any order of this court, see section 65(3) Labour Relations Act and see Heiner v Giant Clothing Company Ltd [Matter Number IRC 292/2003 (unreported)]
Made this 23rd day of July 2007 at MZUZU.
Rachel Zibelu Banda