THE MALAWI JUDICIARY

INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU REGISTRY
I.R.C. MAITERS NUMBER 16, 21, 22, 23 AND 24 OF 2015

BETWEEN

CHIFUNDO KAMWANI ................................................................. 1sT APPLICANT

SAMSON WALOTA ....................................................................... 2ND APPLICANT

FABIANO CHANDAMA ................................................................. 3RD APPLICANT

BENSON TEMB0 .......................................................................... 4TH APPLICANT
TIMOTHY DOMBA ....................................................................... STH APPLICANT
GEORGE B0LA ............................................................................. 6TH APPLICANT

AND
ILLOVO SUGAR (MALAWI) LIMITED ........................................ RESPONDENT

CORAM: H/HON. KINGSLEY DON. MLUNGU, DEPU1Y CHAIRPERSON

MISS CECILIA T. NYIRENDA, EMPLOYERS' PANELIST
MR. ALEXANDER LUNGU, EMPLOYEES' PANELIST
WILLIAM CHIWAYA, APPLICANTS' COUNSEL
ZEROS MATUMBA, RESPONDENTS'COUNSEL

- WASHINGTON MWEN ELU PEM BE, OFFICIAL INTERPRETER

Page I1
 ., ,

JUDGEMENT
The applicants herein, Chifundo Kamwani, Samson Walota, Fabiano Chandama, Benson
Tembo, Timothy Donda and George Bula were all front managers for the respondent
corporation and they were all summarily dismissed on the grounds of dishonesty, fraud,
theft and uttering false accommodation receipts to the respondent upon their return from
Mzuzu where they had undergone a driving test exercise between the 10th and 12th
September, 2014.
:I The applicant's did appeal this initial dismissal decision to the Respondent's Appeals
Committee dismissals but the dismissals were upheld. Being dissatisfied with the Appeals
Committee dismissal's confirmation, the applicants commenced these proceedings claiming
damages for unfair dismissal and withheld terminal benefits in the form of notice pay,
severance allowance, leave grants, performance related bonus and a fJth cheque.

The respondent disputed the applicants action contending that there were valid reason for
the applicants' dismissals and that they were afforded a fair hearing such that they are not
entitled to the reliefs sought.
ISSUES
(a) Whether the applicants were unfairly dismissed or not in the circumstances of the
case.
(b) Whether the applicants are entitled to all or any of the withheld termination
benefits.
APPLICANTS EVIDENCE
All the applicants had separately filled their witness statements but since the cause of
action and the claims are substantially similar and thus the basis of having the claims heard
together, it was decided and agreed amongst the applicants themselves that only two of
them should testify on behalf of all the six applicants, in the name of Chifundo Kamwani
and George Bola.
The witnesses adopted their witness statements and also gave oral evidence. In their
evidence, they stated that they believe that their dismissals were unfair and that they are
entitled to damages thereof in the grounds, interalia;

(i) That their right to prepare and defend themselves at the disciplinary hearings
was violated in that the notices to attend the disciplinary hearing lacked
sufficient particulars of the charges. For example, Chifundo Kamwani stated that
she was going to the hearing not knowing how dishonesty she had been, what
she had stolen and how much and what document she had falsely uttered and
how.
(ii) That the disciplinary hearing committee was not impartial and independent as it
was being controlled by the respondent's management in the way the hearing
was being conducted and more likely on the verdicts reached. For example, it

Page I2
 was stated that the chairman had communicated and promised that a trip will be
made from Dwangwa to Mzuzu to allow the applicants confront/ cross - examine
the owners of Lodges/Receptionists but the chairman communicated on the date
he gave the verdicts that that arrangement was turned down by the respondent.
(iii) That their right to confront their accusers in this case, the Lodge owners and
receptionist were violated.

,, (iv) That the disciplinary hearing relied on the hearsay and unreliable evidence of KK
Security especially the report purportedly written by Pater Botha. The applicants
stated that they challenged the evidence in that it was largely obtained from the
Lodge owners and not the receptionists who had dealt with them and that the
same was obtained after intimidating the Lodge staff.
(v) That the disciplinary committee took into account irrelevant considerations in
dismissing the applicants. For example, one of the reasons for dismissing the
applicant was that Sugar was not selling and the respondent was operating
under borrowing and the interest rates were high. The applicants wondered what
relevance this fact had on their charges as they opined that the respondent only
,} wanted to get rid of some of the staff in order to save finances if indeed sugar
was not selling.
(vi) That the reason for dismissals were just a mere sham as the applicants never
acted in a dishonest and fraudulent manner, stole anything and uttered a fake
document considering that the evidence that was before the disciplinary hearing
never established the charges.
(vii) That the summary dismissal was unfair in the circumstances considering that
other employees who had been charged with similar charges before, were only
asked to pay back the allowances.
The applicants' witnesses further told the court that following their summary dismissal, the
respondents withheld the termination benefits herein claimed yet the said benefits were
covered under their contracts of employment.
THE RESPONDENT'S EVIDENCE

; The respondent paraded two witness in the name of Mr. Joseph Kamsesa (Human
Resource Officer) and Mr. Gabriel Ngwira (who was working for KK Security and was
stationed at the respondent's Dwangwa station at the material time).
With regard to Mr. Joseph Kamsesa, his evidence in chief was the one as contained in his
witness statement which he adopted. He essentially maintained that the dismissal was fair
in the circumstances as the report by KK Security that was presented showed that the
receipts were fake and that the applicants were called to a disciplinary hearing and their
appeals were dismissed. •
Mr. Gabriel Ngwira testified that he was the one who organized an investigation team and
went to the Lodges to investigate the matter. He tendered in the evidence a report which

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 he said was presented to the respondent wherein it was alleged that the receipts were
fake.
THE APPLICABLE LAW

Section 31 of the Republican Constitution provides that:

"Every person shall have the right to fair dismissal and safe labour practices and to fair
remuneration."
<'1 Section 57 of the Employment Act provides:

(1) The employment of an employee shall not be terminated by an employer unless

there is a valid reason for such termination connected with the capacity or conduct
of the employee or based on the operational requirements of the undertaking.
(2) The employment of an employee shall not be terminated for reasons connected with
his capacity or conduct before the employee is provided an opportunity to defend
himself against the allegations made, unless the employer cannot reasonably be
expected to provide the opportunity.

Section 58 provides that a dismissal is unfair if it is not in conformity with section 57 or is a

constructive dismissal pursuant to section 40.

Section 59 of the Employment Act provides as follows:

(1) An employer is entitled to dismiss summarily an employee on the following

grounds:-
a. Where an employee is guilty of a serious misconduct inconsistent with the
fulfilment of the expressed or implied conditions of his contract of employment
such that it would be unreasonable to require the employer to continue the
employment relationship;

(2) In subsection (1), "Summary dismissal" means termination of the contract of

employment by the employer without notice or with less notice than that to which
the employee is entitled by any statutory provision or contractual term .

ON BURDEN AND STANTARD OF PROOF

At the very outset this court would like to state that in a civil matter, ordinarily the burden
of proof lies on a party who substantially asserts the affirmative of the issue, or put in
other words, on a party who asserts the truth of the issue in dispute.

The standard of proof is on the balance of probabilities.

See: COMMERCIAL BANK OF MALAWI -V- MHANGO M.S.C.A. Civil Appeal No. 8 of 2001

MIKEYASI - V- AARO CHING'AMBA AND OTHERS Civil Cause No. 2726 of 1999
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 Section 61 of the Employment Act states that:

(1) In any claim or complaint arising out of the dismissal of an employee, it shall be for
the employer to provide the reason for dismissal and if the employer fails to do so,
there shall be a conclusive presumption that the dismissal was unfair.
(2) In addition to providing that an employee was dismissed for reasons stated in
section 57 (1), an employer shall be required to show that in all circumstances of
the case, he acted with justice and equity in dismissing the employee.
ANALYSIS OF THE EVIDENCE AND THE LAW

On argument number one of the applicants which border on an aspect of procedural

fairness, the law is to the effect that not only the charges must be known by the accused
person but that they should be set down with sufficient particularities to allow him/ her to
properly prepare his defence. Failure to do this would lead to a miscarriage of justice.

This proposition of law was held in the case of LAMECK MOYO -V- NATIONAL BANK OF
MALAWI, Matter number I.R.C. 257 of 2007 .
.•
Again in CHAKHAZA V. PORTLAND CEMENT COMPANY (2008) MLR 118, AT 127, Potani, J.
quoted with approval the following statements by Lord Denning in KANDA -V-
GOVERNMENT OF MALAYA (1962) AC 322:

"If the right to be heard is to be real which is worth anything, it must carry with it a right
of the accused man to know the case which is made against him. He must know what
evidence has been given and what statements have been made affecting him, and then he
must be given a fair opportunity to correct or contradict them."

Furthermore, in STATE -V- COUNCIL OF UNIVERSITY OF MALAWI Exparte MSUKUMWA,

Misc. Civil Cause No. 50 of 2006 the court held as follows:

"If one is to answer any charge, particulars of the same should be given to afford the
accused a clear outline of the charges so that he is able to ably defend himself or herself. I
say to ably defend himself to mean to equip oneself with the necessary ammunition. It is
not enough to give someone the right to be heard or to defend himself if he all she was
deprived of adequate notice to ably defend oneself or the charge was so general that the
accused fails to make a meaningful defense. One should not say, I understand I have a
charge, they will make it clear to me during hearing time. Before the time of hearing, the
accused must be clear in his mind about the nature of the charge. Just to say come and
answer the charges ... and no more is so lacking and inadequate since it is devoid of
particulars."
And in ILLOVO SUGAR COMPANY LIMITED -V- MR. PHIRI Civil Appeal No. 60 of 2008,
Chikopa J. stated as follows on the same:

" ..... what matters in our view is whether or not the party to be heard was made sufficiently
aware of the charge against him and was given a decent chance to put across their side of
the story."
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 In the instant case, the applicants' witnesses tendered in .court the notices to attend · a
disciplinary hearing which they had received and was confirmed as such by Mr. Joseph
Kamseka. The charges stated as follows: "Dishonest, thelt fraud and uttering a false
document." No any particulars were provided therein.

The Respondent's Disciplinary Code and Procedure on clause 4.2.3- Preparation of

Documents provides as follows: Complaint Form H.R.10:
This must be completed by the complainant and then forwarded to an officer of the Human
l Resources Department for investigations so that a disciplinary hearing can be initiated. A
copy of the complaint form must also be given to the employee who has allegedly
committed an offence.
Clause 4.2.4. Investigations by the Human Resource Department provides thereunder as
follows: " ....The case Dossier will be forwarded to the Department Official whose task will
be to study the Dossier and to decide whether or not to proceed with the case.

If the Departmental Official decides to convene a hearing the Human Resources

Department will complete a notice of Disciplinary Hearing (Form H.R.9) and the employee
concerned will be given notice to attend a disciplinary enquiry.

Thus a closer reading of this Disciplinary code and procedures will reveal that much as the
complaint form is part of the Disciplinary hearing, the particulars of the charge ought to
appear on the Notice of Disciplinary Hearing as per the way the form is designed and also
per the fact that there can be instances when a complainant may fill a complaint form to
which a copy is given to an accused employee, but a disciplinary hearing cannot be had if
the investigations leading to a case Dossier has not necessitated the need for disciplinary
hearing or it has found insufficient evidence against an accused employee. In other words,
this court is of the view that the complaint form cannot replace the need for the particulars
being made on the Notice of Disciplinary hearing.

To that end it can be concluded that this failure on particulars amounted to unfair labour
practice and led to miscarriage of procedural justice as the applicant right to ably prepare
and defend themselves was adversely affected.

The other argument advanced by the applicants also connected to their right to be heard is
that the tribunal which made the decision ought to have been impartial and to act
independently and without any other outside influence. The applicants did cite the case of
KHOSWE -V- NATIONAL BANK OF MALAWI Civil cause number 718 of 2002 where the
High Court held that:

"It is also a general principle of law that a person who holds an enquiry must be seen to be
impartial. Justice must not only be done but must be seen to be done, that is if a
reasonable observer with full knowledge of the facts would conclude that the hearing might
not be impartial, that is enough. Even if the decision maker has not been biased at all, a
-
decision may still be quashed if they have any professional or personal interest in the
issues because justice must be seen to be done."
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 • . The applicants submit that in the present case, the chairman communicated to them that
/ his acceptance to the applicants' request of summoning Lodge owners/ Receptionists or
their travelling to Mzuzu for confrontation with the Lodge owners/Receptionists has been
overruled by management as it has seen no need for the same. They argued that the
chairman only cancelled the arrangement following such a direction from management
despite the chairman's own conviction that there was indeed a need to have the Lodge
owners/Receptionist cross- examined by the applicants. To them this shows that- the
chairman/ committee was not independent and was influenced by management in that its
(~ direction/decision of turning down the applicants requests indicated that the applicants
were guilty anyway. They cited the case of BUHENDWA - V- DIGNITAS INTERNATIONAL
I.R.C. matter number 360 of 2005 where the court held that:
"Where a body conducting the process has predetermined the decision or is prejudiced, the
right to fair procedure under section 57 (2) is violated."

This court do agree with this submission.

Thirdly, the applicants have argued that for the right to be heard to be real, the accused
person must have an opportunity to confront and cross- examine the accusers as per the
case of KHOSWE -V- NATIONAL BANK OF MALAWI (Supra) which held that:
"It is a fundamental principle of natural justice that where the duty to act fairly demand an
oral hearing, the right to cross- examine witnesses existed."

And also in BUHENDWA -V- DIGNITAS INTERNATIONAL (Supra) where the court stated
thus:
" ...... The allegations were serious enough to warrant an opportunity to cross- examine
witness and this opportunity was imperative in a case where the sole committee member
relied entirely on written witnesses' statements in controverted matters, see Lovlises Foods
Group Ltd (1990) IRLR 324 EAT."
They argued that in the present case the charges against the applicants followed a
purported investigation that did not at any point involve applicants and as such it was
imperative that at the disciplinary hearings the Lodge owners/Receptionist should have
been called / brought by the respondent itself for them to be cross - examined/confronted
by the applicants. Alternatively, when the applicants had requested for a trip to confront
them, the respondent should have obliged but this was not so as the committee's
acceptance to this request was overruled by the management.

To that end, the applicants submit that by not allowing them an opportunity to cross-
• examine their accusers, their right to be heard was and the principles of natural justice
were violated. The respondent got it wrong in thinking that Mr. Gabriel Ngwira was the real
accuser in that he was only reporting on what he had found in the alleged investigations
and hence the need for the Lodge owners/ Receptionist to be confronted by the applicants.
This court, again, entirely agree with this submission.

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 Fourthly, the applicants argue that generally the evidence supporting their guiltiness was
very weak such that no reasonable tribunal could have reached the verdict herein. They
submit that the respondent said that it used evidence largely obtained from the Lodge
owners and not Receptionists; that is at Kaka Motel and Tukumphire Lodge. It was at
Ndagha Lodge where Mr. Ngwira and his ·company met the Owner and Receptionist, Peter
Botha, whose only evidence was signing on the statement written by Mr. Ngwira the
investigator.

(
They say the above also need to be considered together with the complaint the applicants
had lodged about the intimidation of staff and Ndagha Lodge as per exhibit CK6 attached
to Chifundo Kamwani's witness statement.
To buttress their argument that if all the circumstances were to be considered, no
reasonable tribunal could have found the applicants guilty in the absence of following due
process, the applicants referred this court to the case of POLKERY -V- AE DAYTON
SERVICES LTD (1987) 3 ALLER 974 AT 983, where the House of Lords quoted with
approval the following observations of Neill L.J. sitting in the Court of Appeal in the same
case (1987) JALLER 984:

"Where an employee is dismissed for alleged misconduct and he then complains that he
was unfairly dismissed, it is to be anticipated that the industrial tribunal will usually need to
consider: (a) The nature and gravity of the alleged misconduct, (b) The information on
which the employer based his decision, (c) Whether there was any other information,
which that employer could or should have taken before he dismissed the employee."

Having duly exercised our minds on this argument/ point we are of the considered view
that there was some other information or steps which the respondent could have obtained
or undertaken before the applicants were dismissed namely the calling of the Lodge
owners and or the Receptionist or indeed granting the request of the applicants to go to
them to confront /cross - examine them in view of the circumstances of the case herein.
)

Furthermore, a decision maker is required to only take into account matters that are
relevant to the issue before him in making any decision especially one which will affect the
interests of people. A decision that is made upon taking irrelevant matters is considered
unreasonable and thus it can be quashed by a court of law.

In the case of JANA -V- ATIORNEY GENERAL I.R.C Matter Number 312 of 2005 (P.R), Her
Honor R. Zibelu Banda held that it was unfair labour practice for the employer to take into
account irrelevant considerations when treating an employee.

In the present case, the respondent when communicating the reasons for dismissing the
applicants stated that sugar was not selling and the respondent was operating under
borrowing and the interest rates were high. This was clearly an irrelevant consideration if
regard had to be had to the charges that were levelled against the applicants. The taking
into account of this consideration only showed that the respondent was bent at dismissing

Page I8
 the applicants at all cost and as a measure of saving its finances if the above circumstances
indeed existed.
Furthermore, the applicants argued that even if the finding of guilty was to be justified, in
the circumstances of the case, the decision to summarily dismiss them from employment
was very harsh and unfair. They put across an incident whereby Mr. Mkoko and Mr.
Chapoka (both employees of the respondent) were only asked to pay back the allowances
when the respondent doubted their receipts after they reported back from South Africa. To
that end they feel being discriminated against which is against section 20 of the Republican
Constitution.

In cross - examination, Mr. Joseph Kamseka refused to comment more except to just say
that the two cases were not the same but did not dispute that the two were not dismissed.
On this point, the case of JANA -V- ATIORNEY GENERAL (2008) MLR 391 is very crucial. It
was held in that case that:
"In claims for discrimination unlike in claims for unfair dismissal under section 61(1) of the
Employment Act, the burden is on She/he who alleged to show on balance of probabilities
that She/ He was treated un equally among peers. The burden then shifts to the
respondent to show that the act or omission was not based on discriminatory
consideration."
Thus, the respondent having failed to explain the differential treatment and explain how
different the cases were, the respondent failed to discharge its burden of proof.

Thus, having considered the applicants and the respondent's arguments, it must be stated
as follows:
In the case of DAVIE BANDA -V- FIRST MERCHANTS BANK, I.R.C Matter Number 19 of
2011, the court stated that:
"The court gives them credit for having afforded the applicant an opportunity to be heard
before they did condemn him on the issue of insubordination. But procedural fairness on its
own is not enough. There should be both a substantive justice (fairness) and procedural
justice (fairness) in order for a dismissal or termination to be called fair."

Further, in the case of SHOPRITE TRADING LTD -V- JOKINGS CEMENT AND OTHERS, Civil
Appeal No. 20 of 2012 (H.C, PR) it was held that when section 61 of the Act above is read
with section 57, we may safely conclude that the parliamentarian was deliberately
protecting the employee who is in a weaker bargaining position and that the employer no
longer enjoys the liberty to dismiss an employee at his pleasure without consequences.

- The courts are implored to search for a reason and for that matter a valid reason for
dismissal. .."
Again, in the case of SINGINI -V- B.C.A BESTOLBELL MALAWI Matter Number I.R.C. 274 of
2002, the court held that:

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'Where there is an allegation of dismissal, the burden is on the employer to show that
there was a valid reason for the dismissal and that the employer acted with fairness before
dismissal. The employer must substantiate the reason ·in court. In the absence of such
proof there is conclusive presumption that the dismissal was unfair ... ."

In the present case, the applicants stated that the reasons for their dismissal were not
valid at all. In the dismissal letters, the actual reasons for finding the applicants guilty were
not mentioned. However the same were read to the applicants when communicating the
verdicts and are as contained in the minutes of the disciplinary hearing, tendered as per
section 71(3) of the Labour Relations Act. In the minutes, therein is stated under Reasons
for the Decision: Sugar is not selling and we are operating under borrowing and the
interest rates are high.

This is an irrelevant consideration and it cannot be a valid reason for dismissing the
applicants.

Secondly, we have already made a finding on the inadequacy and unreliability of the
evidence of the investigators, KK Security Officers and the Lodge owners as per the fourth
point/ argument.

With regard to the nature and seriousness of the offences/charges, consideration of the
same could only became relevant if the charges herein were conclusively substantiated but
in the finding of this court, this has not been the case.

On the suspension of Peter Botha, the receptionist at Ndagha Lodge, this cannot be held to
be enough evidence of guilt on the part of the applicants who booked a room there. If
anything, the suspension of Botha was a pointer that it was Botha himself who had
deceived the applicants and his boss had discovered his crookedness or deceitful
malpractices.

Lastly, we agree with the applicant's submission that the truth of the matter could only
have been found upon full enquiry which among others included the calling of the
receptionists in front of the applicants.

All in all, the respondent herein had the onus of proving that the reasons for the applicant's
dismissal were valid and that it had acted with justice and equity in all the circumstances.
This burden was never discharged by them in as far as the evidence before this court and
the applicable law is concerned. To that end, it is the finding of this court that the
applicants were unfairly dismissed and are therefore entitled to damages of unfair dismissal
as prayed for.

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 I
I •'
';

A. ORDER OF COMPENSATION

1. On Burden and Standard Proof

The case of KACHIWANDA -V- EASTERN PRODUCE (MW) LTD (GOTHA ESTATE) [2008]
MLLR 161 held that the burden of proof rests on the party who substantially asserts the
affirmative of the issue.

In MATANDA -V- SALES SERVICES LTD AND OTHERS [1990] 13 MLR 219 (H.C) the court
( said, interalia, that:

"The burden in principle lies on the plaintiff to prove his case against the defendants. Of
course, this being a civil case, the standard of proof is one of what is probable."

WRONGFUL DISMISSAL -V- UNFAIR DISMISSAL

Common law rules and authorities on wrongful dismissal are not applicable on unfair
dismissal because the Labour Relations Act, 1996 created a new cause of action namely
the unfair labour practice or unfair dismissal.
See: TOURISM DEVELOPMENT AND TOURISM COMPANY AND ANOTHER [[2008] MLLR
314.
2. Loss of Salary and Benefits

In the case of KACHINJIKA -V- PORTLAND CEMENT COMPANY [2008] MLLR 61, the court
held that, making an award of wrongful termination and for loss of salary would be
technically and conceptually flawed.

At page 177, the court stated that:

"It would proceed on assumption that the plaintiff was never terminated which is not true.
It would also assume that the plaintiff...prayed for a declaration that he should be regarded
as having continued in his _position from the date of termination .. . which is not the case ....
We might. .. end up paying the plaintiff a salary that he has never in fact lost for the simple
reason that he was in gainful employment elsewhere .... And the correct way about it is not
to pay him salaries for which he did not work but to, as much as possible, award him
damages in the general damages mould for wrongful termination."

- In this case, the court declined to order that the plaintiff be paid retirement benefits
calculated on the basis of his retirement age of 60. The court said at page 178:

"The argument is that had he not been wrongfully terminated, he would have worked up to
the age of retirement, which in this case is 60, while enjoying these benefits (legitimate
expectations). Any way which you want to look at it such argument is untenable. The truth
of the matter is that not only has the plaintiff not worked up to retirement age with the
Page I 11
/ defendant's company there is no bankable guarantee that he would have worked up to
such age, the termination notwithstanding. He would have died. He would have resigned.
He would have been properly terminated. But even after this wrongful termination, it is
possible that the plaintiff would find another employment or gainful work before the age of
60 which will not only pay him a salary but also extend to him the same fringe benefits for
which the defendant would have paid him up to the age of 60 as compensation. The
immediate, foregoing, we think, should be enough to show the folly of paying the
wrongfully terminated employee benefits as if he retired at normal retirement age
whatever that might be."

3. Awarding Compensation
According to section 63 (4) of the Employment Act, the key element in determining
compensation are that it must be just and equitable. In deciding what is just and equitable,
the court shall consider the marketability of the plaintiff in the labour market. Qualifications
and experience of an employee may help determine whether an employee would have or
has had serious difficulty in securing alternative employment in his or her chosen
I'. profession after loss of a job with an employer ... where the court finds that the employee
contributed to the dismissal, a portion proportionate to the contributory fault shall be
deducted from the compensation. See: KAMAJA -V- BATA SHOE COMPANY LIMITED,
Matter Number IRC 235 of 2003 (Unrep.)
The case of BUTAO -V- UTATU WOYERA (PVT) SCHOOL Matter Number IRC 54 of 2003 is
also in point.

4. Proving Loss
On proving loss, the employee has the burden of proving economic loss suffered as a result
of the dismissal and must show that he loss is attributable to the action of the employer.

5. Mitigation of Loss
On mitigation of loss, it has been held that an injured party must take measures to mitigate
his or her loss. The High Court in MALAWI ENVIRONMENT ENDOWMENT TRUST -V-
KALOWEKAMO [2008] MLLR 237, demanded that the employee should demonstrate
through production of employment letters and negative responses there to that he had
tried to mitigate his loss. Since the employee was un able to produce the letters, the court
found that the employee had not attempted to mitigate his loss and awarded him the
equivalent of notice pay as compensation.

Thus, in the spirit of section 63( 4) of the Employment Act which provides that an award of •
compensation shall be such amount as the court considers just and equitable in the
circumstances ... ., this court proceeds to award the applicants compensation as follows:

Page I 12
 . ,,,
1· (a) Chifundo Kamwani
The applicant had worked for 3 years for the respondent from 2011 to 2014. We award her
an equivalent amount of 10 months salary:

MK 185,702.00 x 10 = MK 1,857,020.00
(b) Samson Walota
The applicant has worked for the respondent for 4 years. We award him an equivalent
( amount of 10 months salary as well.

MK 209, 748.00 x 10 = MK2, 097,480.00

(c) Fabiano Chadama
The applicant has worked for the respondent for 5 years. We award him an equivalent of
10 months salary.
MK (187,540.00 x 10) = MK1, 875,400.00

(d) Benson Tembo

The applicant had worked for the respondent for 1 year. We do award him a 5 months
salary equivalent amount.

MK 187,540.00 x 5 = MK937, 700.00

(e) Timothy Donda

The applicant had worked for the respondent for 14 years. We hereby award him an
equivalent of a 15 months salary.
Thus, (MK184,690 x 15) = MK2,770,350.00

(f) George Bola .

The applicant had worked for the respondent for 4 years. We hereby award him an
equivalent amount of a 10 months salary.
(MK 181,000.00 x 10) = MK1, 810,000.00

-
Page I 13
 B. WITHHELD TERMINAL BEN EFITS

(i) NOTICE PAY

Having looked at the applicants Employment contracts or offer letters, which were
tendered in court, the applicant's employment could only be terminated upon the
respondent giving them one month notice or one month salary. So the applicants herein
are entitled to be given a one month salary each in lien of notice as follows:
( • Chifundo Kamwani MK 185,702.00
• Samson Walota MK 209,748.00
• Fabiano Chadama MK 187,540.00
• Benson Tembo MK 187, 540.00
• Timothy Donda MK 184,690.00
• George Bola MK 181,000.00

I'
(ii) SEVERANCE ALLOWANCE
The applicants are entitled to severance allowances as per their contracts of employment
and as per section 35 of the Employment Act, calculated in accordance with Part 1 of the
First Schedule; a follows:

Weekly wage for purposes of severance allowance:

Basic salary x 12 months 7 52 weeks = weekly wage x Number of weeks x number of

years.

Thus:

(a) Chifundo Kamwani = MK 257,125.85

(b) Samson Walota = MK 387,227.07
(c) Fabiano Chadama MK 432,784.61 + MK 129,835.38 = MK 562,620.00
(d) Benson Tembo = MK 86,556.92
(e) Timothy Donda = MK 1,747,451.53
(f) George Bola = MK 334,153.85

- (iii) LEAVE GRANT

If the same was not given then the same ought to be given. The amount being claimed is
MK25, 800.00 each applicant and the same was not disputed by the respondent.

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 (iv) PERFORMANCE RELATED BONUS

The applicants were entitled to Performance Related Bonus under their respective
contracts. At the time of their dismissals, the respondent had not paid them. The amount
claimed is K234, 000.00 for each of the applicants.

As per the applicants offer letters, the same is normally payable in June of each year
provided pre- determined performance targets are achieved. If this condition was met,
then the applicants ought to be paid the same.
(v) 13TH CHEQUE

As per the applicants offer letters, a bonus in the form of a 13th Cheque is normally paid in
December of each year, provided the company is in a position to do so. Where a full year's
services have not been completed, then the bonus will be paid on a prorata basis if one
has served for not less than six months at the time it is being paid. Having recourse to the
applicant's dismissal letters, they are dated 3 rd December, 2014. When the applicants'
witness, Chifundo Kamwani was cross- examined on this issue, she said that the company
( was in a position to pay the bonus that year as all the staff were given the same.
We thus find that the applicants are entitled to this 13th Cheque. It is stated by the
applicants that the same corresponds to each applicant's monthly salary.
(vi) PENSION

The applicants pension benefits can be claimed from NICO Insurance as pension managers
in accordance with sections 64 and 65 of the Pensions Act, if the same has not been paid
to some of the applicants.
(vii) JUDGEMENT DEBT INTEREST

The applicants also called this court to consider awarding them interest on the above sums
in view of the fact that their dismissal was unjustifiable and the respondent unjustifiably
withheld the above benefits thereby depriving the applicants use of the same.
Section 65 of the Courts Act; Cap. 3: 02 of the Laws of Malawi, provides for interest on
f
judgement, as follows:

"Every judgement in civil proceedings shall carry interest at the rate of five per centum or
such other rate as may be prescribed."
As for the claim of interest on the late payment of dues, the law is very clear. Section 53 of
the Employment Act state that terminal benefits are payable within six weeks from the date

- of termination of the employment.

In the case of THOMPSON -V- LEYLAND DAR MALAWI LTD Civil Appeal Number 919 of
2004, the High Court awarded interest to the respondent on unpaid severance allowance
which was a judgement debt.

Page I 15
 Further, in the case of LIQUIDATOR, IMPORT AND EXPORT LIMITED -V- KANKHWANGWA
& OTHERS [2008] MLLR 219, the High Court also awarded interest to the respondent on
judgement debt. Thus interest is indeed payable in these cases.

In the instant case, after termination of employment the applicants were supposed to be
paid their benefits within six weeks from the 3rct day of December, 2014. However, this was
not followed.

To that end this court orders that an interest based on the normal rate of interest on a
judgement debt which is 5% per annum be paid.

Right of Appeal as per section 65 of the Labour Relations Act explained.

MADE this ............... ...... day of August, 2018 at Mzuzu.

!
K.D.::Z
DEPUTY CHAIRPERSON

C.T. NYIRENDA

EMPLOYERS' PANELIST

-
• ALEXANDER LUNGU

EMPLOYEES' PANELIST

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