IN THE INDUSTRIAL RELATIONS COURT OF
MALAWI

PRINCIPAL
REGISTRY

MATTER
NUMBER IRC 122 OF 2004

BETWEEN

ZINGWA……..……...……………………………...……………………..
APPLICANT

-and-

LINK BUILDING PRODUCTS………………..………….…………...RESPONDENT

CORAM: R
ZIBELU BANDA (MS); CHAIRPERSON

MRM PADAMBO;
EMPLOYEES’ PANELIST

JE CHILENGA;
EMPLOYERS’ PANELIST

Applicant; Present

Salimu; Finance &
Administration Manager; for the Respondent

Chinkudzu;
Official Interpreter

ORDER
IN ASSESSMENT OF COMPENSATION

Background

Judgment
in favour of the applicant was delivered on 8^th day of
November 2007 at Blantyre. The court found that the dismissal was
unfair on grounds that the reason was not justified. The
matter came
for assessment of compensation. The applicant gave evidence. The
respondent was in attendance. The court found that
the applicant is
entitled to compensation.

The
relevant law in assessment of compensation is section 63 of the
Employment Act. Subsection 4 provides that: An award of compensation

shall be such amount as the court considers just and equitable in the
circumstances having regard to the loss sustained by the
employee in
consequence of the dismissal in so far as the loss is attributable to
action taken by the employer and the extent,
if any, to which the
employee caused or contributed to the dismissal, see Mwafulirwa v
Manic Malawi Ltd [Matter Number IRC 34 of 2004 (unreported)]IRC.
The burden of proving loss is on the employee; see Chiume v SS
Rent A Car [Matter Number IRC 149 of 2000 (unreported)] IRC.

Just and Equitable

The key
factor to consider when assessing compensation is that it must be
just and equitable. It must be just and equitable to the
employee as
well as to the employer. The court has wide discretion to determine
what is just and equitable. However this discretion
must be exercised
judicially. In the instant case it is important to consider first
whether there was any loss caused to the applicant
due to the
dismissal. The answer is provided by the applicant who stated that
since his termination he has lost an income. While
employed he was
entitled to a salary of MK2 900-00 per month and house allowance of
MK200-00 per month. Since he has not secured
any alternative
employment the applicant has continued to experience this loss of
income and benefits.

Contributory
Fault

Secondly the court must
consider whether the applicant contributed to the termination. The
answer is to be found in the finding
of the court of 8 November 2007.
The court found that the applicant did not contribute in any way to
the termination. Therefore
the respondent takes full 100%
contribution to the loss that the applicant has suffered.

Mitigation
of Loss

Thirdly, the court has
implied and it is trite law in assessment of damages cases that an
aggrieved person will seek to mitigate
his loss. In Malawi
Environmental Endowment Trust v Kalowekamo [Civil Cause Number
49 of 2004 (unreported)] HC. The court alluded to the fact that an
employee who loses his job must make attempts
to mitigate his loss.
In that case the court found that the applicant did not have anything
to show as a way of mitigating loss.

In this
instant case the burden was on the employee to show that he had tried
in vain to seek alternative employment or any gainful
enterprise to
mitigate his loss. The court was informed that the applicant was in
gainful employment where he was earning about
MK5 000-00 per month.

Under the
circumstances of this case and having considered the above factors,
the court must determine the compensation to be awarded
to the
applicant. The Supreme Court of Appeal in Stanbic Ltd v Mtukula
[MSCA Civil Appeal Number 34 of 2006 (unreported)] SCA, considered
the equivalent of 57 months salary as adequate compensation
for
someone who had served his employer for 19 years.

In the
instant case the applicant had worked for 3 years for the respondent.
The court awards the applicant the equivalent of two
weeks salary and
two weeks house allowance for a period beginning the effective date
of termination (after notice period) being
27 May 2004 to date of
judgment being 8 November 2007. This is because the applicant has not
completely lost out. He is in gainful
business which is mitigating
the loss caused by the loss of a job. The total award calculated is
MK 62 000-00.

Order

The respondent is ordered
to pay the applicant MK62 000-00 representing compensation for
equivalent of half pay for 20 months representing salary and house
allowance. This order is effective
within 14 days of this day.

Any
party aggrieved by this decision is at liberty to appeal to the High
Court within 30 days of this Order.

Made
this 28^th
day of May 2008 at BLANTYRE.

Rachel
Zibelu Banda

CHAIRPERSON

Maxwell
RN Padambo

EMPLOYEES’ PANELIST

Joel
Evalisto Chilenga

EMPLOYERS’ PANELIST