Download in the industrial relations court of malawi

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL REGISTRY
MATTER NO. IRC 198 OF 2003
BETWEEN
KAUNDA……………………………………….………………………….APPLICANT
-andCATHOLIC RELIEF SERVICES……...….………………………….RESPONDENT
CORAM: R. Zibelu Banda, Chairperson
Makhalira; of Counsel for the Applicant
Kalasa; of Counsel for the Respondent
Chinkudzu; Official Interpreter
JUDGMENT
Dismissal-Unlawful dismissal-Difference between unfair dismissal and unlawful dismissal-Pleadings-Party to
plead his case-Court to consider matters pleaded-Rules of Industrial Relations Court-Flexibility-Court to
consider the skills of litigants and their legal representatives-Not acceptable for lawyers to mislead court.
Facts
The Applicant was employed on a fixed term contract expiring at end of a year’s service. The applicant’s
contract had a renewal clause. In this case the respondent decided not to exercise their discretion to renew the
contract on the basis that they no longer required the services of the applicant. The applicant challenged the
termination of the contract alleging that it was unlawful dismissal. The applicant claimed two months pay in
lieu of notice K65 000-00, gratuity, salary for January 2002 to March 2002- K97 500-00, salary for April 2002
to March 2003- K390 000-00, leave pay and leave grant K3 200.00.
The Issue
The issue is whether the applicant was unlawfully dismissed and whether he is entitled to the reliefs sought and
especially to receive remuneration for another one year term of contract on the basis that he had reasonable
expectations that his contract would be renewed.
The Law
This claim is grounded on the law of unlawful dismissal. This is a common law cause of action which basically
translates into the termination of employment without following the terms and conditions of the contract in
other words, termination without following the proper notice clause and other clauses relating to termination.
This cause of action is different from the law of unfair dismissal which broadly means termination without
following rules of natural justice as provided in the Employment Act 2000 especially section 57(1) and (2).
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The court heard that the applicant was employed on a fixed term contract expiring after one year. The contract
was to run from April 2001 to March 2002. Termination clause 14 provided for notice or salary in lieu of notice
in case of termination during the contract term. In this case the termination was as a result of expiry of fixed
period of contract. It can not be argued therefore that the termination was unlawful. There are no grounds to
show that the termination was unlawful. Equally there was no claim or pleading for compensation for just and
equitable compensation because that remedy is available to unfair dismissal cases, which was not the case in
this matter. The applicant did not plead unfair dismissal.
In Malawi Environmental Endowment Trust (MEET) V Kalowekamo [Civil Cause 49/2004 (Appeal from
the IRC) the High Court pointed out that: ‘Unlawful dismissal is to do with termination of contract of
employment without giving notice or adequate notice while unfair dismissal is to do with reasons for the
dismissal. The two are not mutually exclusive and may be pursued at the same time’.
In Nkhwazi V Commercial Bank of Malawi [Civil Cause Number 233/1999 (unreported)], the court defined
unlawful dismissal as a common law cause of action which entails that ‘an employer acts lawfully by
terminating according to the contract. A termination with notice, does not redound to an action in damages’.
In Council for the University of Malawi V Mkandawire [MSCA 38/2003 (unreported)] it was held that, ‘it is
accepted that damages equivalent to a salary in lieu of notice are awarded to an employee whose services are
wrongfully terminated. The reason is that the period of notice is the period at the end of which an employer
may lawfully terminate an employment’.
On the other hand section 58 of the Employment Act 2000 provides that ‘a dismissal is unfair if it is not in
conformity with section 57 or is a constructive dismissal pursuant to section 60. Section 57 provides for a
termination to comply with the requirement to give a valid reason for the termination and for the employee to
be afforded an opportunity to be heard where the reason relates to capacity or conduct. The remedies for unfair
dismissal are provided in section 63.
The above positions distinguish unlawful and unfair dismissal as two distinct causes of action. In unlawful
dismissal, a cause of action grounded in common law, the employee needs to show that the termination was
without notice and the remedy is damages equivalent to notice pay. It is further provided that in unlawful
dismissal cases, there is no remedy of specific performance. While in unfair dismissal, the cause of action is
provided in statute, the employer must show that a valid reason was provided for the termination and that in
case of capacity or conduct as reason, the employer must further show that the employee was given an
opportunity to be heard. In unfair dismissal cases an employee can be granted the remedy of specific
performance in the form of re-instatement according to section 63 (1) (a) of the Employment Act. Therefore on
the basis of these distinctions, the Kalowekamo case is distinguishable.
In view of the fact that these two causes of action are distinct, it is expected that in pleading the applicant will
make clear his action and the remedies sought. It is trite law that the applicant must specify in his statement of
claim the relief or remedy which he seeks, see, Masiye V Chibuku Products Ltd and another [1997]1 MLR
465.
In Njala V Kamoto and another [1995]1 MLR 165, the court held that, it is not the duty of the court to fill in
the gaps left by the applicant’s evidence simply to see to it that thee is a case to answer.
In Gonthi V Attorney General [1995]2 MLR 592, it was held that it is wrong in law to draw matters into the
argument which matters did not appear in the summons.
In Kalowekamo, the court further observed that:
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‘That being the case and on the facts of this case, it is the view of this court that although the respondent did not
plead unfair dismissal, the lower court in dealing with the issue of unfair dismissal did not grossly misdirect
itself especially considering that it is within the spirit of the Labour Relations Act that rules of procedure,
including rules relating to pleadings, should be applied with some degree of flexibility in matters of the
Industrial Relations Court’.
The facts in the Kalowekamo case were similar to the facts of this case. That case involved non renewal of
fixed term contract. The claim in the Industrial Relations Court was brought under unlawful dismissal. The
respondent in the IRC was aggrieved with the decision of the IRC is deciding the case on the basis of unfair
dismissal.
In the instant case this court would like distinguish the Kalowekamo case in that it is now high time that
lawyers were able to make distinctions between the two causes of action namely: unfair dismissal and unlawful
dismissal. The requirements under these two causes of action are different and the remedies for the two causes
of action are also different. It is clear from the remedies sought by the applicant in the IRC Form 1 that the
basis for their claim was unlawful dismissal.
It must be stressed that the flexibility that the Labour Relations Act encourages must not be abused and used to
the great inconvenience of the court and the other party to the proceedings. It must be appreciated that the spirit
behind the Industrial Relations Court establishment was that the majority of parties will be unrepresented by
lawyers, and therefore a mechanism was put in place to consider their understanding or lack of, of the
procedures of court process and drafting of statements of claim. In that regard, the IRC is not obliged to strictly
observe rules of procedure. The court is obliged to remember that the claims with which the Industrial
Relations Court and other tribunals are concerned are more often than not presented by claimants in person and
in condition of informality. It is not, therefore, to be expected that precise and detailed proof of every item of
claim will be presented. The position is the same in other jurisdictions, see, Norton Tool Co. Ltd. V. Tewson
[1973]1WLR 45.
In the instant case, the applicant was represented from the onset of the case by an eminent and experienced
lawyer who has specifically conducted matters in the Industrial Relations Court on several occasions. The
chosen legal representative drafted the statement of claim knowing fully well, the difference between the two
causes of action. It is after taking due allowance of the learned lawyer’s skills and qualification, and his
experience in this court, that it is the court’s view that the claim to be decided in this case is one for unlawful
dismissal and not for unfair dismissal.
Finding
Having found that the termination was in accordance with the termination clause under a fixed term contract,
this court finds that this termination was lawful. The applicant’s claim for unlawful dismissal is therefore
dismissed.
Renewal of contract
There were no valid grounds adduced as to why the applicant reasonably expected that his contract would be
renewed for another year. However, it was held in the Kalowekamo case above that ‘modern employment
protection philosophy treats the expiry of a fixed term employment as a dismissal especially when a term
expires there is no renewal under the same contract’. This is the position of the law. There was no valid reason
as to why the applicant’s contract’s could not be renewed other than the fact that the respondent did not desire
the services of the applicant.
In Kalinda V Limbe Leaf Tobacco Limited [Civil Cause Number 542/1995 (unreported)] it was observed that a
dismissal can be both lawful and unfair. The court held:
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‘An employee who loses a wrongful dismissal action, could nevertheless succeed under section 31 (of the
Constitution on fair labour practices) where, for example, apart from contractual obligations, the employer
terminates without giving the employee a fair opportunity of being heard or giving his explanation or putting
his case. The employer is liable to the extent that she never acted fairly and congruous to fair labour
practices….Even a lawful termination can be questioned for fairness’.
In the instant case the applicant was not given a valid reason why his contract would not be renewed. A fact
that the respondent did not require the services of the applicant was not valid reason. The respondent breached
the applicant’s right to fair labour practices. An adverse action was taken against him without giving him any
reason for such action.
In Chawani V Attorney Genaral [MSCA Number 18/2000 (unreported)] the Supreme Court held that ‘an
administrative action affecting another person must be lawful and fair; it must also be supported by reasons,
which must be given to the affected person’.
Finding: It is the court’s view supported by the above authorities that the failure to give reasons for the non
renewal of the applicant’s contract was an unfair labour practice. The court so finds.
Withheld salaries and other benefits
The applicant claimed certain sums of money for notice pay, withheld salaries, gratuity, leave days and leave
grant. The basis of these claims was not shown. These being specific claims, the onus was on the applicant to
show how and whether he was entitled to these sums and indeed whether the respondent was refusing to pay.
The claims under this head are dismissed.
Assessment: The applicant to set the matter down for assessment of the appropriate remedy under section 46 of
the Constitution.
Any party aggrieved by this decision is at liberty to appeal to the High Court on matters of law and or
jurisdiction only within 30 days of this judgment.
Pronounced in Open Court this 7th day of April 2006 at BLANTYRE.
Rachel Zibelu Banda
CHAIRPERSON
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