IN THE INDUSTRIAL RELATIONS COURT OF
NUMBER IRC 122 OF 2004
LINK BUILDING PRODUCTS .. . ...RESPONDENT
ZIBELU BANDA (MS); CHAIRPERSON
Salimu; Finance &
Administration Manager; for the Respondent
IN ASSESSMENT OF COMPENSATION
in favour of the applicant was delivered on 8th day of
November 2007 at Blantyre. The court found that the dismissal was
unfair on grounds that the reason was not justified. The
for assessment of compensation. The applicant gave evidence. The
respondent was in attendance. The court found that
the applicant is
entitled to compensation.
relevant law in assessment of compensation is section 63 of the
Employment Act. Subsection 4 provides 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
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, see Mwafulirwa v
Manic Malawi Ltd [Matter Number IRC 34 of 2004 (unreported)]IRC.
The burden of proving loss is on the employee; see Chiume v SS
Rent A Car [Matter Number IRC 149 of 2000 (unreported)] IRC.
Just and Equitable
factor to consider when assessing compensation is that it must be
just and equitable. It must be just and equitable to the
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 of MK2 900-00 per month and house allowance of
MK200-00 per month. Since he has not secured
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 finding
of the court of 8 November 2007.
The court 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 and it is trite law 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.
instant case the burden was on the employee to show that he had tried
in vain to seek alternative employment or any gainful
mitigate his loss. The court was informed that the applicant was in
gainful employment where he was earning about
MK5 000-00 per month.
circumstances of this case and having considered the above factors,
the court must determine the compensation to be awarded
applicant. 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
someone who had served his employer for 19 years.
instant case the applicant had worked for 3 years for the respondent.
The court awards the applicant the equivalent of two
weeks salary and
two weeks house allowance for a period beginning the effective date
of termination (after notice period) being
27 May 2004 to date of
judgment being 8 November 2007. This is because the applicant has not
completely lost out. He is in gainful
business which is mitigating
the loss caused by the loss of a job. The total award calculated is
MK 62 000-00.
The respondent is ordered
to pay the applicant MK62 000-00 representing compensation for
equivalent of half pay for 20 months representing salary and house
allowance. This order is effective
within 14 days of this day.
party aggrieved by this decision is at liberty to appeal to the High
Court within 30 days of this Order.
day of May 2008 at BLANTYRE.