Court name
Industrial Relations Court
Case number
IRC Matter 209 of 2005

Yona v Attorney General (IRC Matter 209 of 2005) [2007] MWIRC 37 (09 July 2007);

Law report citations
Media neutral citation
[2007] MWIRC 37
Coram
Null

IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI








PRINCIPAL
REGISTRY






MATTER
NO. IRC 209 OF 2005






BETWEEN




YONA….....………………………………………………………………..
APPLICANT








-and-






ATTORNEY GENERAL (OFFICE OF THE PRESIDENT AND
CABINET)…...…………………………………………………………..RESPONDENT








CORAM: R. Zibelu Banda (Ms), Chairperson



Msungama; of
Counsel for the Applicant

Respondent; Absent
without excuse

Chinkudzu; Official
Interpreter






ORDER
IN ASSESSMENT OF COMPENSATION




Background


On 30 June 2005 the
applicant filed a statement of claim among other things claiming
remedies for unfair dismissal and other benefits
that accrue to an
employee on termination of contract of employment. The respondent did
not file a response of intention to defend
the matter. As a result on
3 May 2007 the applicant obtained a judgment in default of notice of
intention to defend the matter.
The matter then proceeded to
assessment of remedies. A notice to that effect was served by post to
the respondent. On 7 June the
matter was called for assessment before
this Court. The respondent did not attend court and no reason was
given for failure to
attend court. Only the applicant attended court
on the appointed day. There was no word from the respondent’s
representatives.
This was consistent with the previous conduct of the
respondent in this matter. The matter proceeded to disposal in
accordance
with section 74 of the Labour Relations Act that mandates
this Court to proceed with hearing in the absence of a party who
fails
to attend court without any reason.







Assessment
of remedy


In
assessment of remedies for unfair dismissal, the Court must aim at
awarding the applicant with a relevant and practical remedy.
In this
case the applicant sought the remedy of re-engagement or in the
alternative compensation.
Under section 63
of the Employment Act the principal remedy for unfair dismissal is
reinstatement, which is different from re-engagement.
In this case
the applicant asked to be re-engaged but did not show why he should
be re-engaged and in what position. The Court
was of the view that
the applicant was mainly interested in compensation. The Court
therefore proceeded to assess compensation
from the available
evidence below:




The
applicant
informed Court that he was
employed on 4 September 2001 in the National Intelligence Bureau. He
was dismissed on 29 April 2004.
His last salary was MK 25 525-00 per
month. He also stated that he was entitled to professional allowance
of MK 2 000-00 per month.
He further stated that he was entitled to
cellphone units worthy 100 United States Dollars per month. The
applicant produced a
payslip to prove his salary. It was admitted in
evidence and marked as exhibit AP1. It showed a net salary of MK 25
525-00 in that
month. The applicant was 29 years old at the time of
this assessment. He claimed that he was not able to secure
alternative employment
because of the nature of his previous
employment. He did not elaborate why the nature of his previous
employment prevented him
from securing alternative employment.




According
to section 63 of the Act, compensation must be just and equitable. In
considering the amount, a Court must look at the
circumstances of the
case and determine the loss suffered by the applicant. In this case
the applicant told Court that he lost
salary due to the dismissal. He
asked Court to consider awarding him immediate loss of salary and
future loss. The applicant cited
a number of cases in support of this
approach. Notable of the cases was
Kalinda
V Limbe Leaf Tobacco Limited
[Civil
Cause Number 542 of 1995 (unreported)].




Just
to note that although this case is persuasive in as far as the heads
of compensation are concerned, the matter mostly proceeded
on damages
for infringement of human rights and freedoms under the Constitution.
It was also based on English common law, the cause
of action having
arisen before the current labour laws. Much as this is acceptable and
good as reference material, the Court would
have preferred the more
recent decisions on the subject based on the Employment Act 2000. In
that regard, the Supreme Court of
Appeal decision in
Stanbic
V Mtukula
[MSCA Civil Appeal Number
34 of 2006 (unreported)] becomes more relevant and binding in as far
as how a Court should approach the
question of assessment of
compensation.



Of
particular relevance in that case is the fact that the Supreme Court
of Appeal
considered the applicant’s loss
in light of the reasons for his dismissal, the faithfulness that he
put into his work, the period
that he put in, the remaining period
before retirement, the loss of employment benefits and future
prospects of the employee had
he not been dismissed.




In
the instant case therefore the Court will take into consideration the
factors under section 63 and also derive guidance from
the
Supreme
Court decision cited above. It must be noted that any case of
assessment of compensation must be decided on its own merits.
No two
cases will therefore be the same as far as compensation is concerned.




The
applicant had worked for less than five years. He is still a young
man of 29 years old. He is capable of securing alternative
employment
if he puts his mind to it. In
Malawi
Environmental Endowment Trust (MEET) v Kalowekamo

[Civil Appeal Number 49/2004 (unreported)] HC, the High Court held
that mitigation of loss is a relevant factor in considering
an award
of compensation. It stated that the employee must demonstrate through
employment application letters and rejections to
show that he tried
in vain to seek alternative employment.




This
Court considers that an equivalent of three months salary for each
year of service will adequately compensate the applicant
under the
circumstances of this case. The compensation is based on a salary of
MK 25 525-00 which is the proven income lost by
the applicant. The
Court rejects the 100 United States Dollars for cellphone because it
was not proved. Similarly the claim of
MK 2 000-00 professional
allowance is disallowed because it was not proved. The claims for
pension and gratuity were pleaded but
no evidence was led to support
them. They are dismissed.




The
applicant prayed for severance allowance under section 35. This is a
statutory entitlement under the labour laws. The applicant
is awarded
severance allowance to be calculated based on a salary of MK 25
525-00 per month using the First Schedule to section
35 for
computations.




The
applicant is not awarded compensation for future loss because he was
young and energetic at time of assessment and that he did
not
demonstrate to Court that he was incapable of securing alternative
employment.
It was held in Fougere
V Phoenix Motor Co Ltd
[1976] IRLR
259 EAT; that in estimating the length of time that a successful
complainant is likely to remain unemployed for the
purpose of
assessing compensation for unfair dismissal, an Industrial Court
should take into account as one of the circumstances
the personal
characteristics of the person dismissed, such as that he was elderly
or in poor health, provided these characteristics
existed at the date
of dismissal.




The
Registrar of this court to compute the compensation based on this
ruling. Any aggrieved party is at liberty to appeal to the High
Court
within 30 days of this order.




Pronounced
this
10th
day of July 2007 at
BLANTYRE.




Rachel
Zibelu Banda


CHAIRPERSON