Mazinga v Field Publishing Of South Malawi Of the Seventh Day Adventist Church ((23 of 2009)) [2010] MWIRC 15 (05 November 2010);

Share
Download: 
 



IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL REGISTRY SITTING AT THYOLO
MATTER NUMBER IRC TO 23 OF 2009
BETWEEN

SAMUEL NEDSON MAZINGA.............................................................................APPLICANT

-AND-
FIELD PUBLISHING OF SOUTH MALAWI FIELD OF THE SEVENTH DAY ADVENTIST CHURCH.................................RESPONDENT

CORAM
J N'riva Deputy Chairperson
D Z Namandwa Employers' Panel
Ms E Mtenje Employees'
Panel
Applicant present and represented by Chumachiyenda
Ntchetche for the respondent
Ms R Ngalauka Court Clerk and Official Interpreter

JUDGMENT
N'riva DCP delivering the Court's Unanimous Decision:

The Claim
According to the amended statement of claim, the respondent employed the applicant in August 1995, as an evangelist and a preacher. Among his duties were preaching and sale of gospel literature. He was getting a monthly salary of twelve thousand kwacha. The respondent had knowledge that the applicant had already passed the retirement age. However, they allowed him to work for fifteen years. After he had worked for twelve years, the respondent's main committee recommended that all the employees who were over sixty years should retire with full pension benefits and the applicant qualified for that. At the same time, a medical practitioner had also recommended that the applicant had to retire. However, the respondent did not retire the applicant. Instead, they terminated his services and paid him forty-one thousand kwacha as his terminal dues. The applicant argues that since he was on pensionable terms, the respondent underpaid him. Further, he strongly feels that he is entitled to severance pay. He also feels the termination was unfair dismissal. He therefore claims one-month salary in lieu of notice, severance pay, accrued leave days, full pension benefited and compensation for unfair dismissal.

Respondent's Reply
According to the respondent's statement of reply, the applicant was not a preacher but a commissioned colporteur and that he was not on a salary. The respondent further challenged the applicant to produce a payslip, a letter of appointment and a letter of dismissal.

Issues for Determination
According to the minutes of the pre-hearing conference, the issues for us to determine are-
-whether the applicant was a volunteer or a salaried employee
-whether the dismissal was fair or unfair
-whether the applicant is entitled to severance pay, notice pay, pension, and two hundred and sixteen days leave pay.


The Evidence
Our approach is to decide the first issue first. In simple terms, the question is whether between the applicant and the respondent there was an employment relationship. Only if the answer were that the applicant was an employee would the question of unfair dismissal arise. The same also applies if the claimed benefits are claimable. At the end of the day, the issue before us is purely of facts. The applicant suggests that he was an employee whereas the respondent states that the applicant was not an employee. The question is which version of the story is true. We therefore, proceed to examine the evidence produced in the court. The applicant testified that he went to the respondent...to ask for a job as a literature evangelist. When he joined, they offered him pension but he informed them that he had already retired from Eastern Produce (an estate). When he started the work, he was selling books and he was getting forty-five percent of every sold book. The respondent kept the remainder (fifty-five percent) for his pension. The books were free and all the money went to the evangelist. Fifty percent went to pension and ten percent was for tithe. The applicant went on to state that after he worked for ten years, some Zambians proposed that those who were over sixty years should apply for pension. The applicant went to a doctor who gave him a document stating that he was qualifying for pension. The respondent accepted to award him pension but another body known as the conference refused to pay him the pension. The respondent paid him forty-one thousand kwacha without a breakdown. There was no document to clarify the issue.

The applicant asserted that he was working everyday for eight hours. He had also not gone on leave. Therefore, he is claiming his pension contribution at Old Mutual. He claims all the employees in Thyolo make pension contributions to the Old Mutual. He argued that he was not on commission. A person cannot, in his argument, work for twelve years on a commission's basis.

In cross-examination, the applicant said: he was being paid twelve thousand kwacha every month; that was forty-five percent of what he was selling. Every month he was selling between twenty and thirty books. That was coming to twelve thousand kwacha a month. He said he had no letter of appointment. He also said he had no evidence that all companies (in Thyolo) send seven and a half percent of pension contribution to Old Mutual. He further said that one Mr Chikunde Phiri brought him a pension form. He also said he was on what he called a credential and therefore he had become a pastor. When the respondent's representative asked for evidence of the credential, he said the evidence was the books he was selling. It is worth noting that the applicant presented book sale receipts as his evidence of pension.

According to the evidence of Pastor Ntchetche on behalf of the respondent, the applicant was a volunteer. On each book he sold, he was getting forty-five percent commission. The respondent has several categories of book vendors. Others are beginners. They have to be less than fifty years old. They work eight hours a day. They are given goals upon reaching which they get credentials. Upon getting the credentials they become employees. They are treated the same way the respondent treats pastors. The witness said he doubted if the applicant had a credential. After all, h e was over fifty. Therefore, he concluded that the applicant had no credential. The applicant had not shown the credential and he (the witness) had not shown the credential. When the applicant got sick, the respondent (Southern Malawi Field) suggested to assist him purely on humanitarian grounds. They gave him forty-one thousand kwacha considering the time he dedicated to the ministry. He, however, disputed the allegation that the field was paying him twelve-thousand kwacha a month. He also said it was not true that the applicant was on a pension scheme. He also refuted the allegation that the respondent dismissed the applicant. In cross-examination, the witnesses stated that they advised the applicant that he was not entitled to retirement. He also said they keep record for the employees but they do not employ persons above fifty.
In further cross-examination by Mr Chumachiyenda, the witness reiterated that they keep record for persons under their employment. Whilst all the employees receive commission, others are on full-time employment others are volunteers. He further said all the literature evangelists buy books at a lower price and sell at a higher price of which they gain the profit. He further said the employees worked eight hours a day while the volunteers worked on their own volition.

Analysis and Finding
Having narrated the evidence, we make the following findings: we fail to agree with the applicant that the respondents employed him. Rather on the totality of the evidence before us, he was a volunteer working on a commission. It seems to us that the applicant totally misunderstood his relationship with the respondent. The applicant has not exhibited that he was an employee, that he was under a pay and that he was on a pension scheme. The applicant has also not shown that he was accredited. The applicant has shown records of sales as evidence of his salary as well as pension. To say the least, there is no logic in this assertion. The respondent has, on the other hand, shown that indeed they had an employment setup. They had employees who were selling books. But apart from the employees they had volunteers. These included persons over fifty years old. They had a policy not to employ persons aged fifty and above. Persons above that age joined the respondent on a voluntary basis. They were under no control of the respondent. They worked on their own accord and volition. On the other hand, the employees, when accredited, received the same treatment as pastors. In other words, they were accorded some benefits from the respondent. In all this we fail to find that the applicant was in an employment setup. He could not, therefore, and he was not dismissed. He was under no pension scheme and the issue of leave does not arise. He had to work as he wished. He was not, unlike the employees, supposed to work eight hours a day.
The applicant has a right to appeal against the decision within the next thirty days.

MADE this day of
5th November 2010





J N'riva
Deputy Chairperson


D Z Namandwa
Employers' Panellist


E Mtenje
Employees' Panellist