Msiska and Others v Central Poultry (2000) Limited (I.R.C Matter No. 47 of 2015) [2018] MWIRC 10 (28 February 2018);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU DISTRICT REGISTRY

I.R.C. MATTER NO. 47 OF 2015

(Being Matter (Lilongwe) I.R.C. NO. 70/2013) BETWEEN

JANET MSISKA AND 7 OTHERS ... .............      . ...................      .. .. . ...... ...... .... ........ APPLICANTS

AND

CENTRAL POULTRY (2000) LIMITED...... .......... . ................        ..... .. . ... ...... .. ........ RESPO NDENT

 

CORAM:         KINGSLEY D. MLUNGU         DEPUTY CHAIRPERSON

MISS CECILIA T. NYIRENDA             EMPLOYERS' PANELIST

M R. ALEXANDER LUNGU                EMPLOYEES' PANELIST

MR. WESLEY MWAFULIRWA            COUNSEL FOR THE APPLICANT

MR. W. KAMWELA                              RESPONDENTS ' REPRESENTATIVE

MR. W. MWENELUPEMBE                 COURT CLERK
 

 

ORDER ON ASSESSMENT OF COMPENSATION

This court found that the applicants were unfairly dismissed. Our task is thus to consider the appropriate quantum of compensation for the applicants in relation to the dismissal here in. Counsel for the applicants has filed written submissions wherein he has argued that the applicants be paid an amount equivalent of a salary of two years at R30, OOO per month.

He submits that the said R30, OOO was a promise made by the respondent to the applicants a s the  monthly  salary upon  being  employed,  after  their successful completion of traineeship, as managers. He argues that the said R30,000.00 be paid in Malawian kwacha equivalence and the amount multiplied by 24 months representing the two years they could have worked for the Respondent of the initial contract was not tampered with. He further prays that the applicants also be compensated for the money they worked for from 26th April, 2012 to the date of dismissal as per the Respondent's own admission that the applicants were not paid this amount. He concludes by saying that at that time the applicants were being paid K60, 000.00 per month.

ANALYSIS OF THE LAW AND THE FACTS

In our critical assessment of the evidence tendered, there is nowhere where the amount of R30, 000.00 is appearing. The amount in Rands which appears in this case is R20, 000.00 in paragraph 1 .6 of the witness statement of Medicine Dazilone (MAD 1). The said paragraph reads as follows:

"It was agreed that my salary would follow the scale of the other managers at that time which was in South African currency about R20, 000.00 per month although this part was not established in writing"

Again the amount of R20, 000.00 is also appearing in the evid ence of James Mponela, during re- examination, at page 6 of the handwritten court record as follows:

"The details which were not in the agreement, which we had agreed verbally, were the  issue of salary, which was pegged at 20,000.00 Rands as what our expatriate counter parts were getting ."

Thus, it will be seen that the amount in Rands being talked here is R20, 000.00 and  not R30,000.00 as put by Counsel.

Be that as it may, our assessment of the evidence was that this was just a verbal promise not reduced in writing as per the applicants own admission. We thus found that it will not be prudent to use this amount in determining the damages as the same has not been proved to our satisfaction, regard being had to the requisite standard of proof in such cases.

Having said that, a careful reading of case law on unfair dismissal, will point to the conclusion that such heads of claim do not succeed in employment law. The remedies which are available are the ones in section 63 of the Employment Act.

See: JAMES MTHETO A. CHIMA -V- THE DEVELOPMENT CENTRE Matter No. 41 of  2001

(1.R.C.) (Lilongwe) where Hon. M.C.C. Mkandawire, chairman of the court, as he was then, said 

"It would actually be absurd for the law to allow such remedies because it would mean a person getting two salaries and separate benefits once that person lands into another job within that same period. Certainly, that is not fair."

Going by exhibit MAD 2, subjects as 'Appointment as Trainee Manager,' the salary per month there is MK60, 000.00 and 10% Housing allowance. This is also shown in the pay slip dated 25/02/2012 and exhibited as MAD 3, although there the actual figure is

K66, 000.00 Basic salary.

The court therefore finds that the suitable remedy here is that of compensation as put in section 63(5) of the Employment Act, for the matter herein, which stipulates that:

"The amount to be awarded under subsection (4) shall not be less than

  1. one week's pay for each year of service for an employee who has served for not more than five years"

Going to the CHIMA Case, it was thus stated:

"This statutory remedy is therefore pegged at one year as a minimum period for compensation ...." The Judge then went on to say that:

"Before I do award the compensation, I have looked at the manner in which this termination was effected. The applicant was on a 24 months contract, which was well paying. All his legitimate expectations were thus thrown into the sea. This was such unfair dismissal to which the applicant did not contribute at all. It was wholly at the instance of the respondent.

The court therefore finds that it is necessary to impose such an award that does reflect the magnitude of this unfair dismissal." Thus, in the instant case I award the applicants compensation which would amount to two months wages for each year of service. Since the other year was not completed as the applicants worked only for six months this would be awarded as a month wage so that in total theapplicants will get a three months wage as compensation, i.e. K60, 000.00 x3 = Kl 80, 000.00

ON WITHHELD WAGES/SALARY:

On record, we do not have proof that the Respondent paid the applicants sa la ries from 26th April, 2012 to the date of dismissal. Even the Respondent admitted that the applicants were not paid this amount. I therefore order that the same be paid accordingly.

ON NOTICE PAY

If the same was not paid to the applicants, a one month salary ought to be paid to them considering that the employer did not comply with the provisions of section 57  ( 1) and (2) of the Employment Act which demand that before unilateral termina tion of a contract by an employer takes place, the employee must be furnished with valid reasons and in cases of misconduct or incapacity, the employee must be afforded an opportunity to be heard.

See: R. S. SIKWESE, LABOUR LAW IN MALAWI, (Lexis Nexis) 2010 page 125.

In total therefore each applicant gets Kl 80, 000.00 compensation; K60, 000.00 notice pay and the withheld salary up to 1Oth May, 2012, the date the dismissal was effected. The same to be paid 14 days from the date  hereunder.

Made the 281h   Day of February, 2018.

 

K.D. MLUNGU

DEPUTY CHAIRPERSON

 

C.T. NYIRENDA

EMPLOYERS' PANELIST

 

ALEXANDER LUNGU

EMPLOYEES' PANELIST