IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER
NO. IRC 195 OF 2005

BETWEEN

MEDI
……………………………………………………………………
APPLICANT

-and-

JAKUKUMA
…………………………………………………………
RESPONDENT

CORAM: R.
ZIBELU BANDA – CHAIRPERSON

Malijani;
Employers’ Panellist

Padambo;
Employees’ Panellist

Applicant;
Present

Respondent;
Absent no excuse

Chinkudzu;
Official Interpreter

JUDGMENT

1. 
   Specific
   claims-Leave pay-Overtime pay-T o
   be specifically proved
2. 
   Burden
   of proof-Employee-To prove that money was earned and is owed

3. 
   Severance
   allowance-Follows termination-Nature of termination determines
   whether severance allowance is payable

Facts

The
applicant was employed on unknown date in 2003. He was suspended in
November pending criminal investigations and trial. In March
2005 he
was dismissed from employment. The
applicant claimed that he was not paid leave grant, overtime,
severance allowance, wages for some months and that he was
not given
certificate of termination.

The
respondent did not attend court. A notice of hearing was sent to
them. In the absence any reason for failure to attend court,
the
court invoked the provisions of section 74 of the Labour Relations
Act and proceeded to hear the applicant.

The
Law

In this
claim it is clear that the applicant had his services terminated.
Section 35 of the Employment Act provides
that an employee whose services are terminated unilaterally by the
employer is entitled
to severance allowance unless he is disqualified
under section 35((6) of the Act. It is the duty of the employer to
show court
whether an employee is disqualified from receiving
severance allowance or not. In this case no evidence was given to
preclude the
applicant from claiming severance allowance. The court
orders that the applicant be paid severance allowance representing
two weeks
wages calculated based on the monthly wage at time of
termination. This amounts to MK 2
499.36.

The
applicant claimed that he was not paid leave grant. The court found
that this claim was not substantiated. It therefore fails
for lack of
proof.

The
applicant also claimed that he worked overtime but was not paid. The
applicant did not produce any evidence to prove that he
earned
overtime and that he was not paid. This claim fails.

There
was contradicting evidence relating to unpaid wages for some months.
The applicant seemed to suggest that after he was suspended
from duty
he was not paid wages. Yet in his pleadings in IRC Form 1 which is
the Statement of Claim the applicant indicated that
he was paid all
his wages. This claim fails on the basis that there was no proof that
the applicant was not paid during the period
that he was on
suspension. The onus was on the applicant to show that he was not
paid wages. In this instance the applicant’s
evidence was
unreliable.

The
applicant is entitled under section 31 of the Employment Act to a
Certificate of Termination. The respondent is ordered to make

available to the applicant a Certificate of Termination immediately.

Finding

The court finds that the
applicant succeeds in his claim for severance allowance. He also
succeeds in his claim for certificate
of termination but he fails in
the specific claims of leave pay, overtime and unpaid wages for lack
of proof. The orders made in
this judgment are with immediate effect.

Any
party dissatisfied with this decision is at liberty to appeal to the
High Court in accordance with the provisions of section
65 of the
Labour Relations Act.

Pronounced
this day 30^th
day of January, 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Maxwell
R Padambo

EMPLOYEES’ PANELIST