Mwantisi v United General Insurance Company Ltd (380 of 2002) [2010] MWIRC 16 (09 October 2010);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC PR 380 OF 2002

BETWEEN:

GENEST WHITE MWANTISI ………………………….. APPLICANT

AND

UNITED GENERAL INSURANCE CO. LTD ………. RESPONDENT

CORAM:
                  J. NRIVA DEPUTY CHAIRPERSON
                  D. Z. Namandwa Employers' Panelist
                  E. Mtenje Employees' Panelist
                  For Applicant M. A. Tembe
                  For Respondent Chidzonde
                  Court Official Ngalauka

JUDGMENT

Nriva DCP

The applicant commenced this action alleging constructive dismissal on the part of the respondent.

The question for determination is whether the applicant has proved constructive dismissal and breach of contract. Constructive dismissal amounts to unfair dismissal. The law provides for two forms of unfair dismissal. These are, on the one hand, dismissing a person without a valid reason and/or without procedural fairness and, on the other hand constructive dismissal. Section 58 of the Employment Act provided that
:

         A dismissal is unfair if it not in conformity with section 57 or is
         a constructive dismissal pursuant to section 60
And constructive dismissal is provided for under section 60 of the Act. The provision is in the following terms:

60.               An employee is entitled to terminate the contract of employment without notice or with less notice than that to which the employers is entitled by any statutory provision or contractual term where the employer's conduct has made it unreasonable to expect the employee to continue the employment relationship

Under the provision, an employee is entitled to terminate the employment without a notice as required by the statute. Alternatively, the employee may terminate the service with a shorter notice in circumstances where the acts or conduct of the employee makes it difficult or unreasonable for the employee to continue in the employment contract. What amounts to unreasonable conduct depends on circumstances of each case. See Ross Smyth & Company Limited v Bailey, Son & Company [1940] 3 AER 60 at 70. In Western Excavating Ltd v Sharp [1978] QB 76 1 the Court said, in respect of constructive dismissal:

``…if the employer is guilty of conduct which is significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminate the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled, in those circumstances, to leave at the instant without giving any notice of all.''

The facts of this case are consistent with the behaviour of an employer as outlined in section 60. First, in the uncontroverted acted in a manner as would be considered to frustrate his acquisition of a house from Malawi Housing Corporation.

They also refused hi8m a loan to acquire the house. Further to that we are convinced that the respondent demoted the applicant from an insurance clerk to a stationery handles. The respondent's witness stated that there was restructuring. We do not agree. There was in our view, no restructuring, the respondent did not consult the applicant. This is an internationally recognized requirement that whenever there is a restructuring, the employer must consult the employee. More to that, the respondent did not formally communicate to the applicant about the change.

In all these circumstances we find that the applicant has shown that he was entitled to terminate the employment with less or no notice because the respondent's conduct had made it unreasonable to expect him to continue in the relationship.

The applicant has, thus, proved constructive dismissal under section 60 of the Employment Act. The employer conduct was a significant breach of the contract.

The respondents made a counter claim of the amount of K23,320.00 being house rent. The respondent has not proved the allegation. We therefore dismiss the counter-claim.

We therefore find the respondent liable of unfair dismissal under section 57 of the Employment Act. The Court will, on a date to be appointed by the Registrar, proceed to determine the appropriate remedy to award the applicant.

Made this 9th day of October 2010.




J. Nriva
DEPUTY CHAIRPERSON




D. Z. Namandwa
EMPLOYERS' PANELIST




E. Mtenje
EMPLOYEES' PANELIST