IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI

MZUZU
REGISTRY

MATTER NO. IRC 53 OF 2006

BETWEEN:

MWANZA(MS)………….…………
………………………………….... APPLICANT

-and-

WORLD VISION
MALAWI………………………..………………… RESPONDENT

CORAM: R. Zibelu
Banda (Ms.); Chairperson

Majamanda; of
Counsel for the Respondent

Applicant; present

Bondo; Official
Interpreter

ASSESSMENT
OF REMEDY

1. Unfair
   dismissal-Remedies-Reinstatement-Principal remedy

   
   

2. Fixed
   contract-where contract expires-Expiry date terminates contract

   
   

3. Reinstatement
   not appropriate where contract expires before judgment

   
   

4. Compensation-Alternative
   remedy-Must be Just and equitable

   
   

5. Special
   compensation- Where reason for dismissal is discriminatory-
   Prohibited under section 57(3) Employment Act

   
   

6. Marital
   status-Falling pregnant out of wedlock-Not valid reason for
   termination of employment-Prohibited under section 57(3) Employment

   Act

   
   

7. Pregnancy-Not
   ground for dismissal-prohibited under section 49 Employment Act

   
   

Background

The
applicant was employed on a fixed term contract as Data Entry Clerk.
The contract was to run for four years from 10 January
2001 expiring
on 10 January 2005. On 22 December 2003 her services were terminated.
The reason for termination was that she had
committed an act of
misconduct by falling pregnant out of wedlock. It was summary
dismissal according to the letter of termination
dated 22 December
2003. However salary for three months was paid in lieu of notice and
other terminal benefits were paid up to
date of effective
termination.

The
applicant challenged the dismissal and took out this action against
the respondent. The respondent conceded that the reason
for
termination was not valid. They asked that the matter proceed to
assessment of an appropriate remedy.

Assessment
of remedy

The applicant asked for the
remedy of reinstatement. Reinstatement is the principal remedy in
cases of unfair dismissal. In this
case however it was not the
appropriate remedy because at the time of the assessment the
applicant’s fixed contract had already
expired by lapse of time.
The contract expired on 10 January 2005. According to Kalowekamo v
Malawi Environmental Endowment Trust (MEET) [MSCA Civil Appeal
Number 28/2005 (unreported)] SCA, a fixed contract is brought to an
end at the lapse of the time fixed or completion
of the task.
Therefore in this case, the contract was terminated on 10 January
2005 and hence the applicant would not be reinstated.

Compensation
is the alternative remedy. Section 63 (4) provides that compensation
shall be just and equitable. In a fixed contract
as this case,
compensation would cover the lost benefits for the unexpired period
of the contract. Under the circumstances of this
case, there was no
contributory fault on the part of the applicant therefore
compensation must be made in full as the respondent
contributed
wholly to the loss of income of the applicant.

Order

The court therefore awards
the applicant lost benefits for period from effective date of
termination 22 March 2004 to 10 January
2005 as follows:

1. Salary
   at the rate of MK16 456-00 per month for the unexpired period;

2. 
   House allowance at a rate
   of MK 5 760-00 per month for a similar period;

3. 
   Medical aid contribution
   at a rate of MK 620-00 per month for the same period;

4. 
   Utilities at rate of MK 1
   300-00 per month for the same period;

5. 
   Leave grant at 40% of the
   salary for a similar period; and

6. 
   Gratuity calculated at 25%
   of the salary for the same period

The court
held that the respondent effected increments each year that the
applicant was in service and even after she had been dismissed.
The
increments varied from year to year. An average increment was
calculated at 17%. The court awards 17% increment on the six

entitlements tabulated above.

The court
makes additional award of compensation pursuant to section 63(5) (d)
as read with section 57(3) of the Employment Act
and section 49 of
the Employment Act. Section 57(3) prohibits discrimination on the
basis of ones sex, marital status and other
status. Dismissal on
grounds of pregnancy is prohibited under section 49, see Chisowa v
Ibrahim Cash & Carry [Matter Number IRC 259/2003
(unreported)] IRC. Further dismissal on ground of marital status is
discriminatory and prohibited,
see, Mwanamanga v Malamulo Mission
Hospital [Matter Number IRC 124/2003 (unreported)] IRC.

Order

Having considered the
gravity of the discrimination and having considered the circumstances
of the case, for instance that the respondent
readily conceded
liability, the court awards the applicant additional compensation
calculated at equivalent of three months benefits
as tabulated above
for a period of twelve months. These benefits should be calculated
taking into account the 17% increment.

The
Assistant Registrar of the High Court Mzuzu to calculate the
compensation as ordered in this judgment. These two orders are
with
effect 7 days from the date of this judgment.

Orbiter

It may be noted that the
worst that may have come out of a case of this nature would have been
a criminal prosecution under section
49 of the Employment Act which
attracts a fine of MK 200 000-00 after converting the fine and to
imprisonment (probably of the
officer who made the decision) for five
years. This would be over and above any compensation and other orders
stipulated in section
49(3) and subsection (4) of the Act.

Any
party aggrieved by this decision is at
liberty to appeal to the High Court within 30 days of this judgment
in accordance with section
65(2) of the Labour Relations Act. The
lodging of an appeal against this decision does not in itself stay
this order; see section
65(3) of the Labour Relations Act.

Made
this 23^rd
day of July 2007 at MZUZU.

Rachel
Zibelu Banda

CHAIRPERSON