IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE
REGISTRY

MATTER NO. 80
OF 2001

BETWEEN:

ALICE
MWALE………………………...…………………..APPLICANT

-and-

MUCHINA
CONSTRUCTION COMPANY…..………RESPONDENT

CORAM: 

HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant – Present

Respondent –
Present

Davie Mpakani –
Official Interpreter

J U D G M E N T

Matter in
Issue: Claim for severance allowance by the surviving

Spouse (wife)

This matter was brought
by Mrs. Alice Mwale the Applicant who is the surviving spouse of the
late Mr. Mwale. The matter was brought
against Muchina Construction
Company the Respondent. In her Statement of Claim, the Applicant
would like the Respondent to pay to
her severance allowance for her
late husband who had worked for the Respondent from 1988 to 2001
before he sadly met his death. Thus
she is claiming for severance
allowance for a period of 14 years.

From the totality of
the evidence from both sides, it was settled as a fact that Mr. Mwale
was indeed employed by the Respondent.
The Applicant was not specific
as to when her husband started working for the Respondent.

The Respondent who
were represented by Mr. Killy Munthali the proprietor of this Company
however confirmed that he employed Mr. Mwale
in 1989. The Court
therefore took the word of Mr. Munthali to have been truthful. It is
again settled as a fact that the late Mr.
Mwale worked very well for
the Respondent and was even elevated to the position of Foreman.

It is again settled
as a fact that by the time Mr. Mwale met his death on 5^th
July 2001 as he was on his way to work, he was still working for the
Respondent.

There was however
some dispute in relation to the period between 1999 and 2000. The
Respondent in their response to the claim said
that between
1999-2000, the deceased had absconded and worked for some other
person. Thus he only re-surfaced back in 2000 and pleaded
to be
re-employed.

When narrating his
evidence in this Court, Mr. Killy Munthali told the Court that in the
year 1999, he fell into deep financial problems.
This was largely due
to the armed robbery, which he had suffered whilst on the way to
Karonga. His brand new lorry, which he had
purchased on loan, was
stolen from him at gunpoint on the Chikangawa-Mzuzu road. As a result
of this debacle, he had to service a
loan with the company, which had
sold him the lorry; yet the lorry was not generating any money. He
thus decided to lay off several
employees. He however conceded that
Mr. Mwale was one of his most reliable employees who he did not lay
off. But due to financial
problems, he had difficulties to pay the
people. He recalls that during that time, Mr. Mwale briefly found
some work with a person
he could not disclose.

But later on Mr.
Mwale came back and confessed that all was not well with this new
employer. The evidence of Mr. Munthali was that
although Mr. Mwale
thus, he welcomed him back as a lost sheep.

The evidence of Mr.
Killy raised a very crucial issue in relation to payment of severance
allowance. He was raising an issue that
at one point Mr. Mwale
disrupted his employment (services) with the Respondent. Thus in
terms of the Employment Act, he could not
be entitled to severance
pay. The Employment Act pursuant to Section 41 (1) talks of
continuous employment. This Section provides:-

"For the purpose of this
Act, "continuous employment" shall begin from and include
the first day on which an employee
begins to work for an employer and
shall continue up to and including the date of termination of
employment."

In this particular
case, Mr. Munthali openly told the Court that he never terminated the
services of the late Mr. Mwale.

Thus the Court takes
it that Mr. Mwale had worked continuously from 1989 to the day he was
hit by a motor vehicle in 2001. The issue
that he absconded from
1999-2001 cannot hold water here. There were two witnesses in this
Court from the Applicant side, Mrs. Mwale
and Mr. Mwandira. Both
witnesses stressed that Mr. Mwale worked for the Respondent up to the
time of his death. Indeed this was not
challenged.

If indeed Mr. Mwale
had absconded from work between 1999-2000 (a period of 1 year),
certainly the Respondent could have instituted
disciplinary measures.
There is nothing of that sort. This Court has failed to believe the
story told by Mr. Munthali. The Court
finds that Mr. Mwale worked for
him from 1989 to 2001. without any interruption. At the time he died,
he was a foreman and earning
K6,448.00 per month.

The Court should
therefore address its mind on the law on severance allowance.

Section 35 (1) of
the Employment Act provides:

"On termination of
contract by mutual agreement with the employer or unilaterally by the
employer, an employee shall be entitled
to be paid by the employer,
at the time of termination, a severance allowance to be calculated in
accordance with the First Schedule."

Section 35 (7)
provides:

"Where the contract of
employment is terminated by reason of the death of the employee, the
severance shall be paid to the surviving
spouse of the deceased
employee or, in the absence of such a spouse, to such other dependent
as the labour office may decide."

It is however to be
made clear here that since this matter was brought before the Court,
this Court has powers pursuant to Section
35 (8) to order for payment
of severance allowance. The surviving spouse Mrs. Mwale is therefore
entitled by the foregoing provisions
to severance allowance for her
late husband. The Court has found that from 1989 to 2001, the late
Mr. Mwale had worked for 13 years.
As per the First Schedule in the
Employment Act, a person who has worked for over 10 years is entitled
to four weeks’ wages for
each completed year of service.

This four weeks’
wages is equivalent to 1 month’s wages. Since the late Mr. Mwale
was getting K6,448.00 at the time he died, I
find that this amount
multiplied by the 13 years gives me K83,824.00 as severance
allowance. I thus order that the Respondent should
immediately pay to
Mrs. Mwale this amount through this Court.

DELIVERED this
29^th day of April 2002 at the Industrial Relations Court,
Lilongwe.

M.C.C. Mkandawire

HON. CHAIRMAN