Court name
Industrial Relations Court
Case number
IRC Matter 229 of 2003

Simango v Blantyre Newspapers Ltd (IRC Matter 229 of 2003) [2007] MWIRC 32 (10 May 2007);

Law report citations
Media neutral citation
[2007] MWIRC 32



NO. IRC 229 OF 2003





Zibelu Banda (Ms); Chairperson

Ngwira; of Counsel for
the Applicant

of Counsel for the Respondent

Official Interpreter


  1. Employment
    law-Employee- Person-Performing work or services for another person-
    Remuneration- Reward- Relationship- Of economic

    dependence-Obligation to perform duties

  2. Independent
    contractor-Whether or not a person is an employee or an independent
    contractor-Three tests- control- integration-
    economic reality


applicant was by letter of 9 September 2002, exhibit AP 1, offered to
work as Consultant Editor for the respondent. Terms and
conditions of
this employment included, remuneration at a rate of MK50 000-00 per
month; three eight hour working days per week;
medical aid; house
allowance; transportation; annual leave of 15 days per annum and
termination clause included payment of gratuity
and three months
notice. The applicant accepted the offer by affixing his signature.

In a
letter dated 30 June 2003, exhibit RP3, the respondent wrote a letter
to the applicant terminating employment. In that letter
they referred
to a demand made by the applicant asking for better terms and
conditions. According to that letter the respondent
could not
accommodate such demands and therefore they found it fit to terminate
the applicant’s contract. The applicant challenged
the termination
for lack of valid or any reason at all. He prayed for damages for
unfair dismissal and wrongful dismissal.

respondent in its defense contended that the applicant was not an
employee of the respondent and therefore he could not claim
for unfair dismissal. They referred to the contract as a consultancy
and that according to them a consultancy is different
from a contract
of employment. The respondent in order to support their view referred
to the fact that the applicant worked only
three days a week and that
therefore this was not a normal contract of employment. Further that
the offer of employment was made
to Mass Media Centre, a company.


The court was asked to
determine the preliminary issue of whether or not the applicant was
in an employment contract with the respondent
or was an independent

The Law

3(b) of the Employment Act defines employee as: “any person, who
performs work or services for another person for remuneration
reward on such terms and conditions that he is in relation to that
person in a position of economic dependence on, and under
obligation to perform duties for, that person more closely resembling
the relationship of employee than that of an independent

Factors to
consider under section 3(b) are that the person must be under a legal
obligation to perform work and that the person
receiving the services
must be under an obligation to remunerate the person working and that
it must be shown that the person who
offers his work depends on the
person providing work economically.

determining whether a person was an employee or independent
contractor, a court must ordinarily look to the intentions of the

parties. The intention of the parties can be expressed orally or in
written form. In the instant case the wishes of the parties
expressed in a document referred to earlier as AP1. The defendant
referred to other communications made orally between the
and other members of management. The court did not have the benefit
to hear from those other members of management as
to what was said
relating to terms and conditions in addition to or limiting those
terms and conditions that were reduced to writing.
It is a basic
principle of contract that parties will consider written terms as
forming conditions of a contract unless a contrary
intention is

In this
case as alluded to earlier, although the respondent referred to some
unwritten clauses, these were not proved. Further there
was no
evidence to show that the respondent had at any time before
acceptance revoked the offer. It is trite that acceptance can
not be
revoked. Once the offer is accepted, the contract is complete and
neither party can revoke. A binding contract was created
on 25
September 2002 when the applicant accepted to work for the respondent
on terms and conditions stipulated in the offer letter.

The court
must now determine the question whether the contract so signed was
one of services or for services? The simple answer
is found in AP1.
The applicant was contracted to work for the respondent for
remuneration. He subjected himself to the terms and
conditions of
employment in as far as the performance of his work was concerned. In
this regard, the respondent provided work and
the applicant was
obliged to perform that work. For instance, the applicant was
supposed to report for duties three days a week
and was required to
produce something for the benefit of the respondent. In return the
respondent was to pay a salary and provide
other employment related
benefits like house allowance and annual leave. These factors
constituted an employment contract see generally,
Kachika v
[Matter No. IRC 195/2003 (unreported)] and
Chisowa v Ibrahim Cash and Carry [Matter Number IRC
259/2003 (unreported)].

It was a
condition of the contract that the applicant should work three days
in a week. The respondent used this fact to deny the
existence of an
employment contract. However, in a free market and with the principle
of freedom to contract, any party can decide
on any terms and
conditions as long as they are not illegal, or offend public policy.
Therefore the fact that the applicant reported
for duties only three
days a week did not affect the contract of employment.

The only
limitation to hours of work is provided in section 36(1) of the
Employment Act. It limits an employee’s working time
to not more
than 48 hours per week. It would therefore be a violation of
employment laws for an employer to demand from an employee
work for
more than 48 hours in a week. Of course parties can agree to work for
more than 48 hours a week as long as the additional
hours are paid
for as overtime. Therefore there is no law that prohibits a party to
a contract of employment from negotiating for
any lesser hours of
work at any particular time.

for the respondent had also sought to show that the contract was
between Mass Media Centre as a consultant and the respondent.
wanted the court to find that the applicant was an independent
contractor. However, the conduct of the respondent in its offer
termination is inconsistent with that proposition. The common law has
developed three tests for establishing whether or not
a person is an
employee or an independent contractor.

These are
first, the control test, where Lord Thankerton, in Short
v J& W Henderson Ltd
(1946) 62 TLR 427, looked at whether
the putative employer had control over selection of his servants; the
right to control the
method of doing the work; and right of
suspension and dismissal. If these were answered in the affirmative
and the worker received
remuneration, a contract of employment exist.
See also Sime v Sutcliffe Catering Scotland Ltd [1990]
IRLR 228. Did the respondent in this case exercise any control over
the applicant’s work and conditions? The answer is
definitely in
the affirmative.

The second
test is the integration test. Denning LJ in Bank voor Handel en
Scheepvaart NV v Slatford
[1953]1 QB 248, considered whether
the worker was part and parcel of the employer’s organization. In
this test, under a contract
of service (employment) a person is
employed as part and parcel of the business with all the associated
burdens of administrative
costs and overheads like medical aid,
pension, leave, transport and gratuity. In a contract for service
(independent contractor)
although a person works for the
organisation, his work is not integral to the business but only
accessory to it. Can it be said
in the instant case that producing a
newspaper as editor constituted part and parcel of Blantyre
Newspapers Ltd? The answer is
obviously in the affirmative.

The last
test is the economic reality test which is a composite of the above
elements. It was enunciated in Ready Mixed Concrete (South
East) Ltd v Minister of Pensions and National Insurance
2 QB 497. In the case the contract between the appellant company did
not provide for hours of work, holiday times and the
workers could
hire someone else to perform the work and they were paid according to
the amount of work actually done. His Lordship
McKenna J.,
decided that the workers were independent contractors.

In the
instant case assuming that Mass Media Centre owned by the applicant
was an independent contractor, the respondent would have
to make the
above distinctions and show that the contract between them and the
applicant was one for services. In which case the
applicant would not
receive a salary, would not be entitled to benefits like leave,
transport, gratuity etc as these are benefits
applicable to
employees. Further the respondent would have to show that the
applicant’s work was not part and parcel of Blantyre
Newspapers Ltd
but just an accessory. The respondent was also obliged to show that
the applicant was in business on his own accord,
controlling when and
how he wanted to do the work and whether or not he performed the work
personally or hired workers. Counsel
for the respondent did not show
that the applicant was an independent contractor. In fact, even where
a contract refers to a worker
as an independent contractor, the court
can on the facts find a contract of employment, see, Market
Investigations Ltd v Minister of Social Security
[1969]2 QB


Having found that the hours
of work did not affect the employment contract, and that the terms
and conditions of contract in AP1
and the subsequent conduct of
parties satisfied the elements set out in section 3(b) of the
Employment Act, the Court finds that
a binding contract of employment
existed between the applicant and the respondent.


The Court orders that the
matter if not settled out of court, must proceed to full hearing in
the Industrial Relations Court in
accordance with the requirement for
sitting with panelists. A date shall be communicated to parties for
hearing on the substantive
issue of whether or not the termination of
employment was fair?

of appeal

Any party aggrieved by this
decision is at liberty to appeal to the High Court within 30 days of
this ruling in accordance with
section 65 (2) of the Labour Relations

this 11th day of May 2007 at BLANTYRE.

Zibelu Banda