Makande v Malawi Telecommunications Ltd (IRC 67of 2001 ) (NULL) [2007] MWIRC 74 (31 December 2007);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NUMBER IRC 67 OF 2001


BETWEEN



MAKANDE……..……...……………………………...………………….. APPLICANT


-and-


MALAWI TELECOMMUNICATIONS LTD………….…………...RESPONDENT



CORAM: R ZIBELU BANDA (MS); CHAIRPERSON

MRN PADAMBO; EMPLOYEES’ PANELIST

JE CHILENGA; EMPLOYERS’ PANELIST

Ngwira; of Counsel for the Applicant

Chokotho; of Counsel for the Respondent

Nyabanga; Official Interpreter



RULING


ORDER IN ASSESSMENT OF COMPENSATION

Background

Judgment in favour of the applicant in the Industrial Relations Court (IRC) was delivered on 12 September 2003. The matter however did not proceed to assessment of compensation because the respondent appealed to the High Court. On 15 August 2005 the High Court upheld the decision of the IRC and ordered that the court should assess damages accordingly in compliance with section 63 of the Employment Act. The matter did not come for assessment because the respondent appealed further to the Malawi Supreme Court of Appeal where after upholding the lower court’s decision on 7 May 2007 ordered that the IRC should assess damages.


The matter came for assessment of damages. The applicant Mr. Makande gave evidence. The co-applicant did not attend court. Counsel for the respondent made submissions on behalf of the respondent. The question before the court is what amount of compensation must the applicant be awarded?


The High Court ordered that damages must be assessed in accordance with the provisions of section 63 of the Employment Act. The court will therefore revert to that section. The relevant part provides in subsection 4 that: An award of compensation shall be such amount as the court considers just and equitable in the circumstances having regard to the loss sustained by the employee in consequence of the dismissal in so far as the loss is attributable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal.


Just and Equitable

The key factor to consider when assessing compensation is that it must be just and equitable. It must be just and equitable to the employee as well as to the employer. The court has wide discretion to determine what is just and equitable. However this discretion must be exercised judicially. In the instant case it is important to consider first whether there was any loss caused to the applicant due to the dismissal. The answer is provided by the applicant who stated that since his termination he has lost an income. While employed he was entitled to a salary, to house allowance and medical aid. Since he has not secured any alternative employment the applicant has continued to experience this loss of income and benefits.


Secondly the court must consider whether the applicant contributed to the termination. The answer is to be found in the decisions of the court. The court of first instance found that the applicant did not contribute in any way to the termination. Therefore the respondent takes full 100% contribution to the loss that the applicant has suffered.


Thirdly, the court has implied in assessment of damages cases that an aggrieved person will seek to mitigate his loss. In Malawi Environmental Endowment Trust v Kalowekamo [Civil Cause Number 49 of 2004 (unreported)] HC. The court alluded to the fact that an employee who loses his job must make attempts to mitigate his loss. In that case the court found that the applicant did not have anything to show as a way of mitigating loss. In this instant case the burden was on the employee to show that he had tried in vain to seek alternative employment or any gainful enterprise to mitigate his loss. The court was not convinced that the applicant had at all tried to look for employment elsewhere or that he has attempted to engage in gainful business and failed. The court finds that the applicant did not mitigate his loss.


Under the circumstances of this case and having considered the above factors, the court must determine the compensation to be awarded to the applican. The Supreme Court of Appeal in Stanbic Ltd v Mtukula [MSCA Civil Appeal Number 34 of 2006 (unreported)] SCA, considered the equivalent of 57 months salary as adequate compensation for someone who had served his employer faithfully for 19 years. In that case the court found that the applicant had contributed to the dismissal.


In the instant case the applicant had worked diligently for 12 years for the respondent. During this period he has served the employer well. He had no warnings, he had not contributed to the dismissal and but for the unfair dismissal would still be employed now. Therefore the court awards the applicant salary, house allowance and medical aid portion that was paid in by the employer for a period beginning the effective date of termination (after notice period) being 8 June 2001 to the date of this judgment 31 December 2007.


For lack of mitigation the applicant forfeits any compensation that he may have been awarded from date of judgment to retirement as pleaded. The applicant could not show that he has failed to secure alternative employment. He is therefore not entitled to any future loss of benefits that cover period up to retirement.


Parties are to calculate the award as ordered based on the applicant’s last salary and benefits. 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 judgment.


Made this 31st day of December 2007 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON



Maxwell RN Padambo

EMPLOYEES’ PANELIST



Joel Evalisto Chilenga

EMPLOYERS’ PANELIST