IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU REGISTRY

MATTER NO. 102
OF 2001

BETWEEN:

ELVIS GEORGE
KUMWENDA……………………...…..APPLICANT

-and-

MR. C.C.M.
MKANDAWIRE

(Managing
Director)……………………………..………..RESPONDENT

CORAM: 

HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant, Present

Respondent, Absent

Mrs. Namponya/Mrs.
Kalirani – Official Interpreter

R U L I N G

This is an appointment
to assess damages following a default judgment, which the Applicant
herein obtained in his favour on the 18^th of December
2001. The Respondent was served with the notice to assess damages. He
did not turn up for hearing. No reasons were given
for such a
failure. I therefore went ahead to assess the damages on behalf of
the Registrar of the Industrial Relations Court.

Briefly speaking,
the Applicant was first employed by Bambino Private Schools in the
City of Lilongwe before the Respondent who owns
Chimaliro Private
Schools persuaded him to leave Bambino and join him. In order to
attract the Applicant, the Respondent personally
travelled to
Lilongwe and held very serious discussions with him. At the end of
the day, the Applicant immediately left Bambino Schools
for Chimaliro
Private Schools. Amongst the so-called greener pasture conditions at
the new place of employment were the following:-

(1) That the Respondent would pay
school fees for the Applicant’s son at any school in the City of
Mzuzu where Chimaliro Private
Secondary School is. On top of that,
that the Respondent would pay half the son’s school fees for the
nephew to the Applicant.

(2) That the Respondent would pay
half the water and electricity bills that the Applicant incurred
whilst working for Chimaliro Private
Schools.

(3) That the Respondent would pay one
months salary in lieu of notice to Bambino Private Schools.

(4) That the Respondent would pay to
the Applicant one month of leave which the Applicant had forfeited
with Bambino Private Schools
as a result of his sudden move to
Chimaliro Private Schools.

The Applicant was
dismissed by the Respondent after having worked only for 6 months
that is from June to November 2000. The Applicant
said that the
dismissal itself was unfair and that by the time he was dismissed,
the Respondent owed him money on school fees, water,
electricity,
forfeited leave grant at Bambino and one month notice pay.

This, as I have
already said is an assessment following a default judgment. There
being default judgment, it means that the issue
of liability has been
settled. I should also point it out on the onset that the claims made
by the Applicant were straightforward
and to the point.

The Court after
having looked at the calculation made by the Applicant found that the
Applicant should be paid as follows:-

(1) K5,250 for school fees.

(2) K876.66 for water

(3) K475.00 for electricity

(4) K9,000 for one month pay
withheld.

(5) K8,300 for one month leave
forfeited at Bambino.

In total therefore,
I order that the Respondent do pay the sum of K23,901.66.

Coming to the issue
of compensation for unfair dismissal, I have taken into account that
the law governing such award is as put under
Section 63 (4) of the
Employment Act which provides:-

"An award of compensation
shall be such amount as the Court considers just and equitable in the
circumstances having regard to
the loss 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."

Since the Respondent
herein has not put any defence, the Court takes it that the blame
squarely rests on the employers’ shoulders
for the dismissal
herein.

The Court has taken
into account that the Respondent had to follow the Applicant all the
way to Lilongwe where the Applicant had a
stable job. Not only a
stable job but was Headmaster for the secondary section. The
Respondent using his silver tongue promised the
Applicant the moon;
just to damp him after only six months. Certainly, the Applicant was
humiliated and did sustain loss.

Awards for
compensation for unfair dismissals are further regulated by Section
63 (5) of the Employment Act. This section provides:-

"The amount to be awarded
under section (4) shall not be less than-

one weeks pay for each year of
service for an employee who has served for not more than five years."

Here the Applicant
had only served for six months. I do award him two weeks pay as his
compensation for the unlawful dismissal which
is K4,500 since his
monthly salary was K9,000. All these amounts I have awarded thereof
amount to K28,401.66 which has to be paid
immediately through the
Court.

MADE this
29^th
May of April 2002 at Mzuzu.

M.C.C. Mkandawire

HON. CHAIRMAN