REPUBLIC OF MALAWI

IN THE INDUSTRIAL RELATIONS COURT

ZOMBA REGISTRY

IRC MATTER NUMBER ZA 1127 OF 2023

ANDREW MONDEYA…………………. ……….……..……............................APPLICANT

AND

ONE ACRE FUND………………….…………………..........................…….. RESPONDENT

CORUM: HON PETER M.E KANDULU, DEPUTY CHAIRPERSON

Chidothe, Counsel for the Applicant,

Absent, Respondent.

Kakhobwe, Court Clerk

1
 JUDGMENT AND ORDER ON COMPENSATION

Introduction

The Court must state at the onset that the matter before it came for the first hearing on November
25, 2024, at 10:30 a.m. When the matter was called, the Respondent was not present. Despite that,
a duly signed notice of hearing was duly served on the Respondent. Counsel for the Applicant
asked for an adjournment.

Counsel’s Courteous

Counsel for the Applicant was so courteous when he told the court that since this was the first time
that the Respondent was not in court despite acceptance of service, it could be possible that there
were justifiable reasons that could have led them to fail to appear in Court. Counsel emphasised
that he wanted to give them the benefit of the doubt in case something might have happened to the
Respondent, which could have genuinely affected their attendance in court.

Unless an Order is made under section 74

The adjournment was granted with an unless order, and the case was adjourned to 26 February
2025 at 9.30 am. On the 26th day of February 2025, the Respondent was not in court. Counsel
asked the court to proceed with the hearing despite the absence of the Respondent. Counsel
produced a notice of hearing in service return, which was duly signed by the Respondent.

Section 74 of the Labour Relations Act provides that if a party fails to attend or to be represented
at the proceedings of the Industrial Relations Court without good cause, the Industrial Relations
Court may proceed in that party's or representative's absence.

In the case of Maonga and others v Blantyre Print and Publishing Co Ltd [1991] 14 MLR 240
(HC), Justice Unyolo then held “If a witness is available but not called, it may be presumed that
his evidence would be contrary to the case of the party who failed to call him. The unexplained
failure to call a material witness on this point substantially reduced the weight of the defendant’s
evidence in all the circumstances of the case.”

In this case, no good cause has been presented before the court for the Respondent’s failure to
attend trial. In any event, the court regards this as disrespectful to the court’s duly served processes.
Therefore, the court agrees with counsel for the Applicant that since this is the second time the
2
Respondent did not appear in court without giving any reason, the court must proceed to hear the
Applicant's evidence and decide based on the Applicant’s evidence alone.

Background

The Applicant commenced these proceedings against the Respondent for unfair dismissal, unfair
labour practices, and severance allowance of MK1, 697, 313.00. The IRC Form 1 was filed on the
20th of November 2023. The Respondent received Service on the 4th of December 2023. The
Respondent filed a response in IRC Form 2 on the 20th of December 2023.

Minutes of the Pre-Hearing Conference

The parties held a pre-hearing conference where they failed to resolve the matter. Minutes were
filed with the court on whether or not the Applicant’s dismissal was fair, whether or not the
Applicant was subjected to unfair labour practices, and whether or not the Applicant is entitled to
damages for unfair dismissal and unfair labour practices. The matter was referred for trial.

Burden of proof

On having so pleaded, the onus is on the applicants to prove their claims as the burden of proof
rests upon the party, which substantially asserts the affirmative of the issue, Joseph Constantine
Steamship Line –vs. - Imperial Smelting Corporation Ltd (1942) AC 154. The burden is fixed at
the beginning of the trial by the state of the pleadings, and it is settled as a question of law,
remaining unchanged throughout the trial exactly where the pleadings place it. B. Sacranie v.
ESCOM, HC/PR Civil Cause Number 717 of 1991.

Standard of Proof

The standard required in civil cases is generally expressed as proof on a balance of probabilities
Miller v. Minister of Pensions, 1947), All ER 372. It follows in a matter that the Applicants have
a burden to prove on the balance of probabilities the claim against the Respondent

Applicant’s Case

The applicant filed a witness statement, which is as follows, when it is summarised.

3
He stated that he was employed on the 16th of August 2016 as a Trial Officer based at the
Respondent’s office in Zomba. Over time, he was promoted to the position of Client Data
Management Supervisor. As a Client Data Management Supervisor, his work involved the
following:

Managing the Data of the respondents’ clients and members of staff; maintaining office records;
managing rosters; updating clients’ loans; collaborating with TNM and Airtel on payments, and
making surveys.

From September 2022 to January 2023, they were entering input delivery data at their workplace.
To properly do this job, they engaged casual workers. He was responsible for managing the casual
workers.

Sometime in December 2022 Mr. Lexa Harawa, Client Data Management Coordinator took one
key for a drawer where they used to keep Laptops in the Input Distributor Department. The
responsible officer, Emmanuel Nkhoma of the Input Distribution Department kept one key.

On the 15th January 2023 around 11:00 hours in the morning, he left the office and went to DAPP
to look for trousers. He left Mr. Lexa Harawa, Emmanuel Nkhoma and all casual workers in the
office.

He came back around 13:00 hours and he found Mr Lexa Harawa and one casual worker. Mr. Lexa
Harawa gave him the key to the drawer. Immediately thereafter, they left the office. He however
left some workers in the office.

On Monday, the 18th of January, 2023 he went to the office. He opened the drawer for people to
collect their laptops. One casual worker complained that he was not able to find the laptop he was
using. He advised him to wait for Emmanuel Nkhoma to come so he gave him another Laptop to
use.

When Emmanuel Nkhoma came and the casual worker informed him about the missing, Laptop
Emmanuel Nkhoma gave him another Laptop to use. After knocking off, on their way home he

4
asked Emmanuel Nkhoma whether he checked for the missing Laptop since the casual worker was,
complaining that the Laptop he had been given was not working properly.

Emmanuel Nkhoma said that he did not check. As a result, they agreed that they should check
again the following day.

When they came the following day, they did not check because upon arrival, they found the casual
workers already at the office, so they just had to start working. He, however, noted that Emmanuel
Nkhoma was reluctant to look for the missing Laptop.

Emmanuel Nkhoma gave the casual worker whose laptop had gone missing another Laptop to use
for work. He told him that he would look for the missing laptop. He then asked the receptionist if
there was any person who came to the office where the Laptop was after they had left, to which he
said that nobody came.

He thus advised Emmanuel Nkhoma that they must report the missing Laptop to the Client Data
Management Coordinator, who was their boss, Lexa Harawa, to which he agreed. He told the Data
Management Coordinator of the issue when he was going to meet the Supervisor of Messengers,
Edna Mola.

Around 13:00 hours Lexa Harawa convened a meeting between Lexa Harawa, the Applicant and
Emmanuel Nkhoma during which he asked them what happened in respect of the missing Laptop.

After he and Emmanuel Nkhoma explained what they knew as having happened concerning the
Laptop that had gone missing, Lexa Harawa directed that the Applicant, Emmanuel Nkhoma, and
the casual workers should discuss and make sure by 9:00 am the following day, the Laptop was
found. Lexa Harawa said that if it is not found, he will report to the Human Resources Manager
that they were responsible for the missing Laptop.

After the meeting with Lexa Harawa, he and Emmanuel Nkhoma went to meet the casual workers.
In the meeting with the casual workers, Emmanuel Nkhoma advised the casual workers that
together with them, they should look for the Laptop. They all knocked off except Emmanuel
Nkhoma.

5
The following day around 7:00 am he called Lexa Harawa and told him that, he would report a bit
late for work because he was going to pass by a hospital to deliver food for a patient. He said it
was fine. He arrived at the office around 8:00 hours in the morning. He found Emmanuel Nkhoma
and the casual workers in the office and asked them if they had looked for the missing Laptop.
They just told him that they would look for it.

A few minutes later, whilst he was on his desk Emmanuel Nkhoma sent him a text wherein he
informed him that the Laptop had been found. Around 15:00 hours the following day he went to
the Conference room for the hearing where he found Elyneour Thawale (Human Resources
Supervisor), Mr Mayamiko Makoka (Human Resources Supervisor), Emmanuel Nkhoma, Lexa
Harawa and Blessings Moyo.

Mr Elyneour Thawale informed him that he had been called to the fair hearing, and then he started
asking him questions on how he travelled on the 14th of January 2023 after knocking off. He
explained that Lexa Harawa had asked him what happened to the Laptop, which had gone missing.
He explained what happened as explained. Elyneour Thawale asked him why he had asked the
CRO, Miss Mat, about whether a person came into their office after they had knocked off. He said
that he wanted to verify if, after they had knocked off, someone entered their office since people
were keeping the keys of the office at the reception from her department (Messengers and
Cleaners).

Elyneour Thawale also asked him if he reported to his boss, Lexa Harawa, about the missing
Laptop, to which he answered in the affirmative. Elyneour Thawale then told him that they were
done as they were still investigating. He ordered that he should not hear the issue anywhere.

After that day, he observed that casual workers were being called to the office of the Human
Resources Officers, Mr. Thawale and Mr. Mayamiko Makoka.

One day he was called to go to the Human Resources Department Office where he found Mr.
Thawale, Mr. Mayamiko Makoka, and Mr. Denis Mwechumu, who was the Human Resources
Coordinator. Mr. Denis Mwechumu asked him who was the custodian of the Laptops, to which he
said it was Emmanuel Nkhoma. He also asked the Applicant who was managing casual workers,
to which he said it was him. He also asked him about the process they were following in getting

6
Laptops from Emmanuel Nkhoma to use by the casual workers. He stated that his job was to ensure
the casual workers were doing their work. Emmanuel Nkhoma would open the drawers where the
Laptops were, and each casual worker would collect a Laptop. At knock-off time, each casual
worker was putting back his Laptop in the drawer. Mr Mwechumu then told him to go back as he
was done with the questions.

Two days later Mr. Thawale and Mayamiko Makoka called him to their office. When he went
there, they started threatening him that they would take him to the Police unless he agreed to take
the Laptop. He told them that he did not take the Laptop and could not accept something he did
not do. They mentioned that if he did not accept to have taken the Laptop they would report the
issue to the Police and he told them to go ahead.

On the 7th May 2023, he received a text message from Mr Thawale in the following terms:
Following a report of a missing Laptop, you are being invited to attend a fair hearing tomorrow.”

He tendered a copy of the message, which was marked. On the 8th May 2023, Mr. Thawale sent
him a text where he informed him that the disciplinary hearing had been adjourned to the 13th of
May, 2023.

On the 13th May 2023, he appeared before the Disciplinary hearing in the Conference room where
he found Mr Lexa Harawa, Mr Thawale, Mr Mayamiko Makoka and Blessings Moyo. They were
the Panel of the Disciplinary hearing and the Chairperson was Mr. Thawale.

The Chairman, Mr. Thawale, told him that he had been called to answer the charges of dishonest
and suspicious conduct. He said that these were the acts of misconduct they had found that he had
committed after conducting their investigations. He told him that he denied the charges.

Mr Thawale said that dishonesty arose from the fact that he was the one who was keeping the keys
for the drawer, which allegation he refuted.

On suspicious conduct, Mr. Thawale said that it was because on the 18th of January 2023 in the
morning he had asked Emmanuel Nkhoma and the casual workers if they had looked for the

7
Laptop. He responded that he did that because they had agreed the previous day that they would
look for the Laptop.

On the 24th May 2023, the Respondent dismissed the Applicant on the grounds of dishonesty
during investigations and that he was a major suspect in the disappearance of the Laptop. He
tendered a copy of the letter of termination, which was marked.

The reasons for the dismissal do not correspond with the charges the Applicant answered during
the disciplinary hearing. Effectively the Applicant was dismissed on alleged acts of misconduct he
was not allowed to be heard.

The Applicant was not allowed to confront or cross-examine his accusers or persons who gave
evidence against him since the same was done in his absence.

The Panel of the Disciplinary hearing was not impartial, compromised, and had a high likelihood
of bias since it comprised the same people who conducted investigations on the issue of the missing
Laptop and accused him of being responsible for the missing Laptop or otherwise of having
committed the alleged acts of misconduct. Further, some of the members of the Panel that
conducted the Disciplinary hearing had, prior thereto, forced him to admit responsibility for the
missing Laptop and threatened him with imprisonment if he did not make the admission.

The dismissal was thus effected without complying with the principles of natural justice. He did
not commit the alleged acts of misconduct he answered during the Disciplinary hearing and those
that formed the basis of his dismissal. The dismissal was unfair. The conduct of the Respondent
constitutes unfair labour practices.

At the time of dismissal, he was receiving remuneration amounting to MK424,404.00 per month
broken down as follows: MK252,400.00 as salary, MK37,860.00 as housing allowance;
MK15,144.00 as child benefit; Reimbursement for work-related transport (transport allowance
MK30,000.00) Reimbursement for work-related airtime (airtime allowance) MK25,000.00
MASM for Applicant and dependent MK64,000.00.

8
During the currency of his employment, the parties used to execute a one-year contract, which was
being renewed every year. Upon the expiry of the said one-year contract of employment, the
Respondent was not paying his terminal benefits. He was effectively working with the Respondent
under a contract for an unspecified period.

In his supplementary witness statement, he stated that:

During the currency of his employment, the Respondent used to give him contracts of employment
for one year, which were continuously renewed upon expiration. He tendered his contracts of
employment for the period of his employment, which were marked.

From June 2018 to January 2019, he worked without signing a written contract of employment.
Upon the expiry of these fixed-term contracts of employment, the Respondent was not paying him
terminal benefits.

The position he held and the work he was doing was permanent. When he was dismissed, his work
was assigned to another person. He was thus working under a contract for an unspecified period.

At the time of his dismissal, he was in the course of a contract of employment for a period from
the 1st of March, 2023 to the 28th of February, 2024 he exhibited the copy and it was marked.

The matters in the preceding paragraph notwithstanding, his contract of employment was for an
unspecified period. At the time of dismissal, he was receiving remuneration in the sum of
MK424,404.00 per month broken down as follows: MK252,400.00 as salary, MK37,860.00 as
housing allowance, MK15,144.00 as child benefit; Reimbursement for work-related transport
(transport allowance) MK30,000.00, Reimbursement for work-related airtime (airtime allowance)
MK25,000.00 and MASM for Applicant and dependent MK48,000.00. He tendered a copy of his
pay slip, which was marked.

Counsel submitted a final written submission, which should guide the Court to come up with a
reasoned judgment. The Court is grateful to counsel for the submission. The court must state that
the Respondent did not appear in court despite receipt of service. They had deliberately chosen to
appear before the court. The evidence tendered by the Applicant is not controverted.

9
Issues for Determination:

Whether the Applicant’s dismissal unfair? Whether the Applicant subjected to unfair labour
practices? Whether the Applicant entitled to the reliefs sought herein?

The Law on Dismissal

Section 57 (1) of the Employment Act provides that.

“The employment of an employee shall not be terminated by an employer unless there is a valid
reason for such termination connected with the capacity or conduct of the employee or based on
the operational requirement of the undertaking.”

The burden is on the employer to show that the reason for dismissal was valid- Gawani vs- Malawi
Posts Corporation Matter No. IRC 275 of 2004.

This principle is also provided for under Section 61 (1) of the Employment Act, which provides
that:

“In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer
to provide the reason for dismissal, and if the employer fails to do so, there shall be a conclusive
presumption that the dismissal was unfair.”

The law cited above incorporates the right to administrative justice under Section 43 (1) of the
Constitution, which provides as follows:

Every person shall have the right to—

(a) lawful and procedurally fair administrative action, which is justifiable on the grounds given
where his or her rights, freedoms, legitimate expectations or interests are affected or
threatened; and

(b) be furnished with reasons, in writing, for administrative action where his or her rights,
freedoms, legitimate expectations or interests are affected.

10
Section 57 (2) further provides that;

“The employment of an employee shall not be terminated for reasons connected with his capacity
or conduct before the employee is provided an opportunity to defend himself against the
allegations made unless the employer cannot reasonably be expected to provide the opportunity.”

The starting point for procedural fairness is section 43 of the Constitution, which states that:

Every person shall have the right to—

(c) lawful and procedurally fair administrative action, which is justifiable on the grounds given
where his or her rights, freedoms, legitimate expectations or interests are affected or
threatened; and

(d) be furnished with reasons, in writing, for administrative action where his or her rights,
freedoms, legitimate expectations or interests are affected.

In Lunguzi v Attorney General Civil Cause No.55 of 1995, it was stated that all that Section 43 of
the Constitution does is restate principles of natural justice, one of which is that a man shall not be
condemned unheard.

Tembo J also adopted this interpretation of Section 43 of the constitution in Mbewe v The
Registered Trustees of Blantyre Adventist Hospital Civil Cause no. 56 of 1995, in his words, the
Judge said;

“…I adopt the interpretation placed on Section 43 of the constitution by Justice Mkandawire in
the Mac William Lunguzi case; that is to say that that Section does nothing more than restate
principles of natural justice that a man or woman shall not be condemned unheard. In that respect,
Section 43 of the Constitution makes provision for, and it confers, a right to be heard in
administrative actions that affect any person's rights, freedoms, legitimate expectations or

11
interests, wherever those interests are known. This is one of the many human rights which have
been prescribed under Part IV of the Constitution for the welfare of the citizens of Malawi. It seems
to me that the rights to be heard created under Section 43 of the Constitution are ones which,
where circumstances so apply, ought to be enjoyed by all concerned irrespective of the fact that in
any particular case, the rights being claimed are prescribed by statute or under a contract between
parties.”

Natural justice requires that a person likely to be affected by any administrative decision must be
allowed by the decision-maker to be heard. See Mbewe v The Registered Trustees of Blantyre
Adventist Hospital, Civil Cause no. 56 of 1995.

In Benjamin Khoswe vs National Bank of Malawi Civil Cause No. 718 of 2002, it was stated that:

“Apart from the reason for the dismissal, unfair dismissal is based on how the dismissal was
handled. Termination of employment could be unfair and unlawful if there was a compromise of
principles of natural justice, whether or not the contract refers to the principles.” See also
Grainger BS Nkwazi vs- Commercial Bank of Malawi Civil Cause Number 333 of 1999”.

Thus, although in Banda v. Unitrans (Malawi) Limited Matter Number 27 of 2001 (unreported),
the court held that;

‘It does not matter whether each of the procedural requirements has been meticulously observed,’
it went further to state that what is required is for all relevant facts to be looked at in the aggregate
to determine whether the procedure adopted was fair.’

In Fatchi vs. Principal Secretary for Commerce and Industry and Malawi Revenue Authority
(Misc. Civil Cause No 168 of 2002) (2002) MWHC 63, the High Court quoted with approval the
following passage by the House of Lords in Kanda vs. Government of Malaysia 1962 A.C 322
AT PAGE 337.

“If a right to be heard is to be a real right which is worth anything, it must carry with it a right in
the accused man to know the case which is made against him. He must know what evidence has

12
been given and what statement has been affecting him, and he must be given a fair opportunity to
correct or contradict them.”

In Fair Mount Investments Limited vs. Secretary of State (1976) 2 AER 865, it was stated that if
a party is adversely affected by any evidence and is given the right to comment on that evidence,
the principle of right to be heard is complied with.

In Mbewe vs. Registered Trustees of Blantyre Adventist Hospital, it was held that.

“The right to be heard carried with it a right in the accused person to know the case which is made
against him. He must know what evidence has been and what statements have been made affecting
him. He must then be given a fair opportunity to correct or contradict them. The judge, or whoever
has to adjudicate, must not hear evidence or receive representations from one side behind the back
of the other.”

In a similar vein, it was held in Khoswe vs. National Bank of Malawi Civil Cause No. 718 of 2008
that where a duty to act fairly demands an oral hearing, the right to cross-examine the one accused
also exists.

On contracts for an unspecified period: Section 28 of the Employment Act provides as follows:

(1) Subject to sections 29 and 57, a contract of employment for an unspecified period may be
terminated by either party.

(2) A contract of employment for a specified period shall automatically terminate on the date
specified for its termination and, unless it is expressly or tacitly renewed or prolonged, no
notice shall be required for its termination;

(3) Where the purpose or effect of a contract of employment that is purported to be for a
specific period or a specific task is the filling on a lasting basis of a post connected with the
normal and permanent activity of an undertaking, it shall be deemed to be a contract of
employment for an unspecified period.

13
(4) A contract of employment to perform a specific task shall terminate on the completion of
the task, and no notice of termination shall be required of either party:

Provided that in cases of ambiguity, where an employee is regularly and repeatedly employed and
paid wages based on completion of a quantity of work which can be completed in less than 24
hours, the contract of employment shall be deemed to be of an unspecified period.

On the right to fair labour practices: Section 31 of the Constitution of the Republic of Malawi
provides that every person has a right to fair Labour practices. It is thus an employer’s
constitutional duty to exercise fair labour practices towards an employee. In Gwemba –v-
Namiwawa Hotels. Matter No. 132 of 2003, the court stated that;

“Section 31 of the Constitution entitles the employee to a right to fair labour practices. Fair labour
practices have not been defined in our laws. But surely they constitute fair, reasonable and even-
handed practices by the employer towards the employees”

There is no exhaustive list of what amounts to unfair labour practices. The court must determine
on the facts of a particular case whether there was unfair labour practice. In Kachinjika v Portland
Cement Company (2008), MLR 161, Justice Chikopa stated at 172.

“Whereas we generally agree that neither the constitution nor the Labour Relations Act defines
what fair Labour practices are, we think that courts should, where possible, not refrain from
expressing an opinion on whether or not a particular practice in a particular set of circumstances
amounted to fair or unfair labour practice”

A practice does not cease to be unfair simply because it is by the law or by the employment
contract. In S. Kalinde v Limbe Leaf Tobacco Limited civil cause no. 542 of 1995 Justice
Mwaungulu stated that

“Acting fairly means more than acting according to the law. The employer’s action, even if lawful,
could be contrary to fair labour practice”.

Similarly, in Kachinjika vs Portland Cement Company (supra), the Court had this to say on page.
172.
14
“The courts in the new constitutional dispensation therefore must look not only at the dry letter of
the contract of employment and ask themselves whether or not the terms thereof had been breached
or not but also whether looked at in its totality the employer’s treatment amounts to fair labour
practice or not was at least at the time of the 1994 constitution coming into effect, to be left to the
tribunal dealing with the matter to decide guided by the constitution itself and where possible
international practice.”

On failure to call a material witness: The Court is entitled to draw adverse inferences in a matter
following the absence of a witness who might be expected to have material evidence to give on an
issue in action, see: IRC ex parte T.C. Combs & Company (1991) ZAC 2. The Court in this case
had this to say:

“...in our legal system generally, the silence of one party in the face of the other party’s evidence
may convert that evidence into proof about matters which are or are likely to be, within the
knowledge of the silent party and about which that party could be expected to give evidence. Thus,
depending on the circumstances, a prima facie case may become a stronger or even an
overwhelming case. Such inference, if adopted by the Court, may strengthen the evidence adduced
on that issue by the other party or weaken the evidence if any adduced by the party who might
reasonably have been expected to call the witness, see Wisniewski –v- Central Manchester Health
Authority (1998) P1 QR.

In NBS Bank Limited –v- BP Malawi Limited Commercial Case Number 12 of 2007, Justice
Mtambo had this to say, on p.10:

“And to make matters worse, the Company Secretary who made the entry in Exhibit D4 was not
called by the Defendant to testify so that he could shed more light on the glaring discrepancies in
the Defendant’s allegation that a fixed twenty-year lease was executed although, according to
DW2 the Defendant’s current General Manager, the Company Secretary is still around working
for the Defendant. I can only make an adverse inference that perhaps the evidence of this witness
was going to do more harm than good to the Defendant’s case, because of which the Defendant
opted not to call him.

15
This is given the cases of Maonga and Others –v- Blantyre Print and Publishing Company
Limited (1991) 14 MLR 240 and Leyland Motor Corporation Limited –v- Mohammed Civil
Cause Number 240 of 1983 (unreported). In the former case, Unyolo J. (as he then was) observed
on page 249 that:

“In a situation such as this, it has been held, quite correctly in my view, that, if a witness who is
available is not called, it may be presumed that his evidence would be contrary to the case of the
party who failed to call him”.

In addition, in the latter case, Banda J. (as he then was) held that:

“Failure to call a material witness to testify on a material point may damage the case of the party
who fails to do so, as that failure may be construed as the story is fictitious”.

Analysis of Facts and Law

On whether the Applicant should be deemed to have been working under a contract for an
unspecified period: The Respondent in paragraph 4.1.1 of the IRC Form 2 admits that the
Respondent was employed on the 16th August 2016 as a Trial Officer and was later promoted to
the position of Client Data Management Supervisor. The evidence shows that the Applicant
worked continuously from the 16th of August 2016 to the 24th of May 2023 when he was dismissed.

The evidence further shows that during his currency of employment, he was being given fixed-
term contracts of employment for one year, which were continuously being renewed upon expiry.
As per the exhibits which were tendered and marked in court. At the time of dismissal, he was in
the course of a contract of employment for the period 1st March 2023 to 28th February 2024 as the
copy of the contract was exhibited and it was marked.

Section 28 (3) of the Employment Act provides that where the purpose or effect of a contract of
employment that is purported to be for a specified period or a specific task is the filing for a lasting
basis of a post connected with the normal and permanent activity of an undertaking it shall be
deemed to be a contract of employment for an unspecified period.

16
In Heiner v- Giant Clothing Limited Matter No. IRC 292 of 2003, it was held that where the
contract was the filling on a lasting basis of a post connected with the normal and permanent
activity of the employer, such a contract is a contract for an unspecified period. See also Jackson
Stonard and 40 others –v- Illovo Sugar (Malawi) Limited IRC Matter 238 of 2017. In Mbidzi and
Others –v- ESCOM Matter No. IRC No. 841 of 2021, it was held that if an employee is repeatedly
and continuously employed, the employment amounts to a permanent employee.

The purpose of this law is to prevent sham contracts of employment for specified periods. The law
requires contracts for a specified period to be genuine. It seeks to prevent employers from
exploiting employees by indicating that an employee is under a contract for a specified period
when, in reality and substance, it is a contract for an unspecified period. In Heiner v- Giant
Clothing Limited Matter No. IRC 20 of 2003 the Court stated that:

“In the instant case, the respondent told the Court that they had no legal obligation to give the
applicant any reason for dismissal. Because the respondent was under the mistaken belief that this
was a specific contract that terminated with the lapse of time. The Respondent might be wondering
what the intention of the legislature was in providing for the contract of employment for a specified
period if as in this case, a Court can reverse and find that the contract was for an unspecified
period. An answer to such a question is that the legislature was trying to avoid incidents like the
one in this instant case. There are genuine contracts of employment for a specified time. However,
the legislature had the foresight to protect some innocent employee who might fall into the trap of
entering into a fixed contract that was a mere sham”.

In the present case, the Applicant’s contracts of employment were renewed every year or for seven
consecutive times. The Applicant was thus repeatedly employed on seven occasions on one-year
contracts of employment.

As already stated the Applicant was working as a Data Management Supervisor. His duties as a
Client Data Management Supervisor were managing the Data of the Respondent’s clients and
members of staff; maintaining office records; Managing roasters; Updating client loans;
Collaborating with TNM and Airtel on payments; and Making surveys.

17
This post was connected with the normal and permanent activity of the Respondent. When the
Applicant was dismissed, his work was assigned to another person. This demonstrates that the
Applicant’s post was a position the Applicant filled on a lasting basis and his services were
permanently required. In Gabriel Kamanga and Others –v- the Malawi University of Business
and Applied Sciences IRC Matter No. 1036 of 2022, the Respondents employed the Applicants
on fixed-term contracts of six months as Lecturers and continuously renewed them. The Court held
that the Applicants were employed under contracts for an unspecified period. In its determination,
the Court had this to say in paragraph 42.

“The Respondent permanently required the services of the Applicants as the Respondent has not
ceased to perform activities for which the Applicants had been engaged. There is no indication
that they would cease to do so in the foreseeable future”.

By Section 28 of the Employment Act and the above case authorities, it is the finding of this court
that the Applicant was working under a contract for an unspecified time. So based on the law as
discussed in the preceding paragraphs immediately above, it is my finding that the Applicant was
employed on an unspecified period of 7 years.

The court will now move to determine whether the dismissal was fair and whether there was
a valid reason for the dismissal.

The facts show that the Laptop that was believed to have gone missing was later found. It went
missing on the 18th May 2023 and was found two days later on the 20th May 2023 and this was
before the Applicant was called for a disciplinary hearing. The Applicant was informed through a
text message by Lexa Harawa that the Laptop had been found.

In terms of the letter of termination of employment, which was marked by the Court, the Applicant
was dismissed on two grounds namely: Dishonesty during investigations, and He was a major
suspect for the missing of the Laptop. On the dishonesty during investigations, the letter states as
follows:

‘Results from our investigations show that you were dishonest with key stakeholders when they
attempted to get more information from you on the missing Laptop. For example, you

18
communicated to CRO representatives that the missing Laptop was found when it was still missing.
In your communication, you mentioned to the CRO team that the Laptop was found covered with
old receipt books. This prevented them from further pursuing investigations. You were also not
honest when the Laptop custodian asked you about the spare key that your manager gave you. You
denied that your manager did not give you the key though you had the key and that very same day
the Laptop was discovered missing.

The letter further says that the Respondent concluded that the Applicant was a major suspect for
the missing but found the Laptop for the following reasons:

The latter stated and I quote,

“That the morning of the 18th January 2023, when the Laptop was found, you led and suggested to
the staff members in the Business Operations department to conduct another inspection of the
cabinet (original storage of the Laptop) when it was already thoroughly checked previously. The
morning you suggested this, the Laptop was covered in old receipt books. This matched exactly
what you had previously communicated to the CRO representative(s) when they attempted to seek
more information from you. On the last day that the Laptop went missing, you had the keys to the
locker, but also the last person to leave the office”.

Section 61 (1) of the Employment Act provides that in a claim arising out of a dismissal of an
employee, the duty lies on the employer to provide the reason for the dismissal and if the employer
fails to do so there shall be a conclusive presumption that the dismissal is unfair.

This presumption can only be rebutted by evidence on the part of the Respondent, which provides
or otherwise reveals a valid reason for the dismissal. In the present case, the Respondents have not
provided any reason for the dismissal of the Applicant through evidence. The Respondent despite
their reply in IRC 2, when the notice of hearing for the substantive hearing was duly served on
them, exercised their right not to appear before the court without any reason communicated to the
court two times.

This entails that the Respondents did not call any witness to testify or adduce any evidence to
assert and prove the reason for the dismissal as communicated in the quoted letter of dismissal. On

19
that score alone, the court finds that the Respondent has failed to rebut the presumption of unfair
dismissal in Section 61(1) of the Employment Act.

The court has found that there is no evidence before the Court that proves the grounds of dismissal
contained in the letter of dismissal. The evidence of the Applicant, which is uncontroverted shows
that the Applicant cooperated during the investigations the Respondent, undertook on the issue of
the missing but found Laptop, which included promptly attending all meetings for the same when
called by Officers of the Respondent.

The evidence further shows that there was no basis to suspect the Applicant for the missing but
found Laptop. The evidence shows that he did not steal or take the Laptop from the place it was
kept.

During the disciplinary hearing, no evidence was laid to show that the Applicant was responsible
for the missing Laptop and demonstrate any basis to suspect that he was responsible for the missing
Laptop.

The person who found the Laptop was not even called during the disciplinary hearing to shed light
on how he found the Laptop and possibly how the Applicant was connected to the facts
surrounding the missing and finding of the Laptop. The evidence demonstrates that there was no
valid reason for the dismissal of the Applicant. The Court therefore finds that the dismissal was
unfair based on the reasons as expounded immediately in the preceding paragraphs above.

The Court will now determine whether the Applicant was given a proper opportunity to be
heard before the dismissal.

The second requirement for a dismissal to be fair is that the employee must be allowed to be heard
before the dismissal. In a letter inviting the Applicant to the disciplinary hearing, the charges the
Applicant was answering were dishonest and suspicious conduct. The particulars of the charges
were not provided. This in itself was wrong as it hampered the Applicant’s capacity to properly
prepare for his defence.

20
Further as is clear from the Invitation to the Disciplinary hearing the charges are different from
those the Applicant was dismissed on. The charges for dishonesty during investigations and being
a major suspect in the missing Laptop and the particulars as contained in the dismissal letter were
not indicated on the Notice of Disciplinary hearing exhibited in court and remain un-contradicted
by the Respondent.

In terms of the uncontroverted evidence of the Applicant during the disciplinary hearing, he was
informed that Mr Thawale said that dishonesty arose from the fact that he was the one who was
keeping the keys for the drawer, which allegation he refuted.

On suspicious conduct, Mr Thawale said that it was because on the 18th January 2023 in the
morning, he had asked Emmanuel Nkhoma and the casual workers if they had looked for the
Laptop. He responded that he did that because they had agreed the previous day that they would
look for the Laptop.

The Applicant was never asked about the charges and particulars contained in the dismissal letter.
The Applicant was thus not heard on the charges and allegations that formed the basis of his
dismissal. The Applicant was dismissed on grounds that were not subject to the Disciplinary
hearing. This in itself is unfair, and the Court cannot fail to hold the Respondent liable for unfair
dismissal.

More so to worsen the already worsened case, the evidence of the Applicant, which is
uncontroverted, shows that the Panel comprised of some people who carried out investigations and
questioned the Applicant in the course namely Elyneour Thawale and Mayamiko Makoka. The
above names were the people who formulated the charges against the Applicant based on their
investigations. They were thus both accusers and Judges in the matter. Then could the Court finds
the Disciplinary Hearing fair when the fair procedure of conducting the disciplinary hearing
flouted? In my view, the answer is in the negative.

Besides these people presence before the hearing called the Applicant to a meeting where they
were, forcing him to accept that he was the one who took the missing Laptop. They threatened him
that they would take him to the Police if he did not admit the allegations. This shows that they
were already prejudiced towards the Plaintiff. In their mind, the Applicant was responsible for the

21
missing of the Laptop. These people were not supposed to be part of the Panel of the Disciplinary
hearing since they could not be impartial and objective.

The evidence of the Applicant further demonstrates that these two people were calling casual
workers and hearing them on the issue in the absence of the Applicant. These casual workers did
not give evidence during the hearing such that the Applicant had no opportunity to know what
statements they gave on the issue and to confront or cross-examine them if they implicated him.

Principles of natural justice do not allow hearing evidence in the absence of the Applicant. The
Applicant was also not allowed to cross-examine Mr. Elyneour Thawale and Mayamiko Makoka
who were accusers in the matter and were involved in the alleged investigations on the missing of
the Laptop.

The above information in the evidence of the Applicant demonstrates that the law did not conduct
the Disciplinary Hearing and principles of natural justice as provided in section 43 of the
Constitution and section 57 of the Employment Act. The Applicant was therefore not accorded a
proper opportunity to be heard, the court holds.

The Court shall now determine the Respondent’s failure to call witnesses:

The Respondents did not call and parade witnesses or adduce evidence to support their version as
contained in the IRC 2. No reasons were given for the same. They did not even challenge or
controvert the evidence of the Applicant. This Court is therefore left with the uncontroverted
version and evidence of the Applicant. The court therefore makes an adverse inference against the
Respondents for their failure to call witnesses when they were allowed to call and tell the other
version of the story.

The Court will now determine the Respondent’s failure to act with justice and equity towards
the Applicant:

Section 61(2) of the Employment Act provides that, in addition to proving that an employee was
dismissed for reasons stated in Section 57(1), an employer shall be required to show that in all
circumstances of the case, he acted with justice and equity in dismissing the employee.

22
In the present case, the Laptop that went missing was found 2 days later. It was not found with the
Applicant and there is no evidence of how the Applicant was connected to how it went missing.
The Respondents did not suffer any loss since the Laptop was found. The Applicant cooperated
with the investigations into the missing of the Laptop.

There is no evidence that the Applicant has ever committed any act of misconduct or been
subjected to a disciplinary process or punishment before. The Court is of the view that if indeed
the Applicant was guilty of the allegations against him as alleged in the dismissal letter, which is
not the case according to the evidence on record, which is uncontroverted to date, the punishment
of outright dismissal was harsh and excessive.

The reasonable and appropriate punishment in all the circumstances could have been a reprimand
or warning. Having regard to all the circumstances, the court finds that the Respondents did not
act with justice and equity towards the Applicant in dismissing him outright when there is no single
evidence in court supporting the dismissal that has been given by the Respondent. The Court
therefore finds the Respondent liable and orders them to compensate the Applicant. The Court
therefore find and holds the Respondent liable for unfair dismissal and unfair labour practice
against the Applicant.

The Law of Compensation

Severance Allowance:

Section 35 (1) of the Employment Act provides that on the termination of an employment contract
as a result of redundancy or retrenchment, or due to economic difficulties, or technical, structural
or operational requirements of the employer, or on the unfair dismissal of an employee by the
employer, and not in any other circumstance, an employee shall be entitled to be paid by the
employer, at the time of termination, a severance allowance to be calculated by Part I of the First
Schedule.

In terms of Part 1 of the First Schedule, where an employee works for not less than one year but
not exceeding 5 years severance allowance shall be two weeks’ wages for each completed year of

23
service up to and including the fifth year. For the next 5 years, severance allowance is three weeks
wages for each competed year.

The Applicant worked with the Respondents from the 16th August 2016 to the 24th May 2023. He
worked for 6 complete years cumulatively and continuously, as held already. The severance
allowance payable to Applicant is:

First five years (two weeks’ wages) = (MK424, 404.00 ÷ 2) x 5 = MK1,061,010.00

Sixth year (three weeks wages) = MK318, 303. 00

The Applicant is thus entitled to the total sum of MK1,379,313.00 as severance allowance. I
therefore award him MK1, 379, 313. 00

Compensation for unfair dismissal:

Section 63 (1) of the Employment Act provides that:

If the Court finds that an employee’s complaint of unfair dismissal is well-founded, it shall award
the employee one or more of the following remedies—

(c) An award of compensation as specified in subsection (4).

Section 63 (4) of the Employment Act provides as follows:

Compensation for unfair dismissal is provided for under Section 63 (4) and (5) of the Employment
Act, which reads as follows:

(4) An award of compensation shall be such amount as the Court considers just and equitable in
the circumstances having regard to the loss sustained by the employee in consequence of the
dismissal in so far as the loss can be attributable to action taken by the employer and extent,
if any, to which the employee caused or contributed to the dismissal.

(5) The amount to be awarded under sub-section (4) shall not be less than:

24
a) Two weeks’ wages for each completed year of service up to and including the fifth year.

b) Two weeks’ wages for each completed year of service for the first five years, plus three
weeks’ wages for each completed year of service from the sixth year up to and including
the tenth year.

c) Two weeks’ wages for each completed year of service for the first five years, plus three
weeks’ wages for each completed year of service from the sixth year up to and including
the tenth year, plus four weeks’ wages for each completed year of service from the eleventh
year onwards.

From the foregoing, it is clear that the award of compensation is at the discretion of the Court
depending on the circumstances of each case. However, the discretion must be exercised judicially.
This was enunciated in the case of Tourism Development and Tourism Co. vs. Mhango (2008)
MLR, 314, where Mkandawire J observed at 319 as follows:

“Unfair dismissal is a statutory wrong and in assessing compensation, a court has a wide
discretion. That discretion, however, must be exercised judicially and by principles.”

Section 63 (5) of the Employment Act provides for the minimum compensation the Court can
award for unfair dismissal. In Terrastone Construction Limited –v- Solomon Chatuntha MSCA
Civil Appeal No. 60 of 2011 the Malawi Supreme Court of Appeal held that in awarding damages
for unfair dismissal, Courts are not bound by the provisions of Section 63(5) of the Employment
Act as the said section merely provides for the minimum consideration that the Court may award.

In terms of Section 63 (4) of the Employment Act the Court is under a duty to award an amount of
compensation that is just and equitable in the circumstances having regard to the loss sustained by
the employee in consequence of the dismissal in so far as loss can be attributable to action taken
by the employer and extent, if any, to which the employee caused or contributed to the dismissal.

It was held in First Merchant Bank Limited –v- Eisenhower Mkaka and Others Civil Cause No.
1 of 2016 that the Court enjoys wide discretion to settle for either the minimum prescribed or for
a higher amount of compensation as would fit the description of “just and equitable” after weighing

25
the considerations in Section 63(4) of the Employment Act. See also Norton Tool Company
Limited –v- Tewson [1973] 1 ALL ER 183.

In Elizabeth Kachale Kaunda v- Malawi Broadcasting Corporation (MBC) IRC Matter Number
313 of 2019, it was held that the objective of compensation for unfair dismissal under Section 63
of the Employment Act is to restore the employee to the financial position they would have
occupied had the dismissal not occurred. See also Kazembe –v- January & 2 Others (Civil Cause
No. 488 of 2019) [2022], MWHC 216.

The Court in Elizabeth Kachale Kaunda (supra) further stated that the purpose of compensation
in cases of unfair dismissal is not only to address the financial loss but also to provide relief for
the suffering and emotional distress caused by the unfairness of the dismissal (See page 9).

In Phiri –v- D. Dignitas International (Malawi) [2016] MWHC 575, the Court acknowledged the
need for compensation to reflect the severity of the employer’s conduct and the hardship
experienced by the employee.

The position at law in a nutshell is therefore that the issue of how much compensation must be
awarded to an Applicant for unfair dismissal is within the discretion of the Court having regard to
the circumstances obtaining in a particular case and the Court must award such compensation as
is just and equitable in the circumstances.

The Applicant was dismissed without a valid reason. The dismissal was instant. He was dismissed
without being given a proper opportunity to be heard. The manner of the Applicant’s dismissal
was grossly unfair and in complete disregard of the Employment Act and the Constitution of the
Republic of Malawi let alone the legitimate expectations of the Applicant.

There is no holding by any Court of Law that the Applicant contributed to his dismissal. If there
could be a holding that the Applicant contributed to his dismissal, probably, this could have
affected the award to be given to the Applicant as per section 63 of the Employment Act. The court
shall ensure the award to be given to the Applicant and just and equitable to both the employee
and the employer.

26
The Court is mindful that the Applicant has lost income he could have been earning if he had
continued in employment. The Applicant is jobless due to the unfair dismissal imposed on him by
the Respondent. This has led to hardship and extreme suffering on the part of the Applicant since
he has been in a situation where it has been difficult to meet his needs.

The manner of the dismissal shows that the Applicant was unfairly treated and in an extremely
great measure. In light of the above, the court finds that this is a proper case where the Court must
award the Applicant more than the minimum prescribed under Section 63 (5) of the Employment
Act.

Counsel has submitted several authorities that the court should consider when considering what is
the appropriate quantum. He cited Norman Washa –v- Illovo Sugar (Malawi) Limited; Matter
No. IRC 311 of 2021 where the Court awarded 8 month’s pay for every completed year of service
as compensation for unfair dismissal.

In Eleanour Harawa Chumbe –v- Continental Discount House Limited; Matter No. IRC 343 of
2009 the Applicant worked for the Respondent for 3 years, 6 months and 24 days before dismissal
on the 31st July 2009. The Court on 6th September 2024 awarded the Applicant 12 months’ pay
for every completed year of service over and above the minimum threshold in Section 63 (5)(a) of
the Employment Act.

As already stated the Applicant worked for the Respondent from the 16th of August 2016 to the
24th of May 2023, which translates, to six years and 9 months, which is almost seven years.

Counsel had submitted that, having regard to all the circumstances of the case and to achieve an
award which is just and equitable, the Court should award the Applicant 8 months’ salary for each
year of service as compensation.

The court, while it agrees with counsel for the Applicant on awarding the Applicant with 8 months’
salary for each completed year of service, the court had noted that counsel has also pleaded for the
boost of the award which was due in 2023. In my view, the proper compensation suitable for the
Applicant, which is equitable for both the Applicant and the Respondent, shall be 6 months’ salary

27
for each completed year of service, considering that the Applicant was not paid gratuity in all the
years he had worked for the Respondent.

MK424, 404. 00 x 6 x 7 = MK17, 824, 968. 00

I therefore award the Applicant MK17, 824, 968. 00 for unfair dismissal.

Compensation for unfair labour practices:

Section 31 of the Constitution of the Republic of Malawi provides that every person has a right to
fair Labour practices. It is thus an employer’s constitutional duty to exercise fair labour practices
towards an employee. In Gwemba –v- Namiwawa Hotels. Matter No. 132 of 2003, the court stated
that;

“Section 31 of the Constitution entitles the employee to a right to fair labour practices. Fair labour
practices have not been defined in our laws. But surely they constitute fair, reasonable and even-
handed practices by the employer towards the employees”.

There is no exhaustive list of what amounts to unfair labour practices. The court must determine,
on the facts of a particular case, whether there was unfair labour practice. In Kachinjika v Portland
Cement Company (2008), MLR 161, Justice Chikopa stated at 172.

“Whereas we generally agree that neither the constitution nor the Labour Relations Act defines
what fair Labour practices are, we think that courts should, where possible, not refrain from
expressing an opinion on whether or not a particular practice in a particular set of circumstances
amounted to fair or unfair labour practice”.

A practice does not cease to be unfair simply because it is by the law or by the employment
contract. In S. Kalinde v Limbe Leaf Tobacco Limited, civil cause no. Section 542 of 1995 Justice
Mwaungulu stated that

“Acting fairly means more than acting according to the law. The employer’s action, even if lawful,
could be contrary to fair labour practice.”

28
Similarly, in Kachinjika vs Portland Cement Company (supra), the Court had this to say on page.
172.

“the courts in the new constitutional dispensation therefore must look not only at the dry letter of
the contract of employment and ask themselves whether or not the terms thereof had been breached
or not but also whether looked at in its totality the employer’s treatment amounts to fair labour
practice or not was at least at the time of the 1994 constitution coming into effect, to be left to the
tribunal dealing with the matter to decide guided by the constitution itself and where possible
international practice.”

In the present case, Counsel has made a persuasive submission that, considering the manner the
Applicant was handled, including the dismissal itself, constitutes unfair labour practices and should
be awarded compensation for unfair labour practices.

The Court, after considering the totality of the evidence and case authorities, which are
uncontroverted, and the persuasive argument by Counsel for the Applicant, I am inclined to agree
that the Applicant was unfairly treated and he must be compensated for the unfair labour practice.

In Christopher Makileni –v- The Attorney General (The Office of the President and Cabinet)
IRC Matter No. 55 of 2015 the Court awarded the Applicant MK18, 097, 916.70 as damages for
unfair labour practices when the Applicant suffered loss of use of motor vehicle about personal
use because the Applicant did not provide him with a motor vehicle for some period between 2014
to 2018 when they deployed him to another department.

In Brian Banda –v- Attorney General (State Residences) Matter No. IRC 1001 of 2022
(Unreported) the Court awarded the Applicant the sum of MK5, 000, 000. 00 as compensation for
unfair labour practices on 22nd December 2023.

In Gabriel Kamanga and Others –this Court, the sum of MK5, 000, 000, awarded each v- Malawi
University of Business and Applied Sciences IRC Matter Number 1036 of 2022 on 22nd October
2024, the Applicants. 00 as compensation for unfair labour practices. In Gabriel Kamanga and
others' cases the Applicants were dismissed without giving them any reason and without hearing
them, just as happened in the present case.

29
In Alex Malikebu and 3281 Others –v- ADMARC Limited Matter No. IRC 554 of 2023 the Court
on 15th November 2024 awarded each of the Applicants the sum of MK5, 500,000.00 as
compensation for unfair labour practices.

In light of the above authorities and having regard to all the circumstances of this case including
the economic hard times and the purchasing power in the country, the court awards the sum of
MK7, 000,000.00 as compensation for unfair labour practices.

Notice pay:

There is no specific claim for notice pay in the IRC Form 1. However, the court would like to state
as follows that there are certain reliefs the Court would award, despite whether they have been
pleaded for or not. These are what we call statutory relief that flows immediately when the court
has determined that the dismissal was unfair. However, the last relief sought in the Applicant IRC
Form 1 was “any other relief (s), the Court shall consider just in the circumstances”. The Court
finds that a notice pay fits in that where the Court shall consider it just to award a Notice pay to
the Applicant.

The Applicant was receiving a salary per month and was under a contract of employment for an
unspecified period. In terms of Section 29 (1) (a) of the Employment Act, the Applicant was
entitled to one month's notice before termination of their employment. Since the Applicant was
dismissed without notice under Section 30 (2) of the Employment Act, he was entitled to payment
of the equivalent of one month's salary as payment instead of notice. In terms of the evidence, the
Applicant’s remuneration per month at the time of dismissal was MK862,890.00

The Court therefore awarded the Applicants the sum of MK862, 890. 00 being payment instead of
a notice.

I am persuaded to make an adjustment of the remedy awarded based on the devaluation of the
Kwacha currency: This is due to the fact that the amount due was supposed to be paid in 2021.

Courts have taken into account the depreciation of the Kwacha when arriving at the appropriate
quantum to be awarded. In Mwasi and Others –v- Malawi Revenue Authority Civil Cause No. 13

30
of 2015, the Court stated that in the exercise of its discretion to award compensation that was just
and equitable under Section 63 (4) of the Employment Act, the Court could boost the award to
preserve the value of the money. The Court stated thus:

“The Lower Court erred in law by not factoring in the effects of devaluation and inflation. The
issue of the cost of money cannot be ignored. See Kachinjika case and Kandoje v- Malawi
Housing Corporation (2008) MLR 433. In these cases, the Courts noted that inflation and
devaluation since the termination of employment are critical factors for the court to bear in mind.
In the premises, the Lower Court should have boosted the award as was the case in the Kandoje
case.

In Frackson Chitheka –v- Attorney General (Ministry of Finance) Civil Cause No. 67 of 2008
Mzikamanda J., as he then was, in confirming the 100% boost of the award stated as follows:

“As will be seen, the issue of compensation for unfair dismissal is a matter governed by the law
with the discretion of the court built in … in assessing compensation for unfair dismissal, the court
takes into account several factors. These include the applicant’s effort to mitigate his loss, the
employee’s age, physical fitness, qualification, and the prevailing labour market. These factors
inform the court in determining the multiplier and the formula for calculating is set by the law. In
matters that come to the Industrial Relations Court, it is the general formula that will apply unless
some special formula is pleaded and proved…. As regards the boost of 100% a per cent that was
entirely at the discretion of the lower court, considering the devaluation and the rate of living at
the time. I confirm that 100% boost”.

In Mrs. Catherine Kamwendo v- Portland Cement Company (1974) Limited Civil Appeal No. 25
of 2012, the Court boosted the award of compensation by 75%.

In Chibuku Products Limited –v- Harry Chilungo Civil Appeal No. 10 of 2023 the Court boosted
the award of compensation with 82.1% for a dismissal of 21st March 2019.

It is beyond question that since 2021 when the cause of action arose the Kwacha has greatly
depreciated due to inflation. The Court should take judicial notice of the fact that the last significant
devaluation of the Kwacha in 2023 alone at some point was at 44%. In Alex Malikebu & Others

31
–v- ADMARC Limited (supra) the Court used inflation rates published by the Reserve Bank of
Malawi and National Statistics Office of Malawi, and it found that from March 2023 to September
2024, the overall inflation rate was 31.2%. The Court thus boosted the award for unfair dismissal
by 31.2%.

Assessing the remedies based on the salary the Applicant used to get in September 2021 would be
grossly unfair and unjust as it will not be reflective of the real value of his entitlements.

For the Court to achieve justice for the Applicant, the Court needs to adjust the awards upwards
based on the above discussion and /or on the case authorities cited.

In the circumstances and having regard to case authorities, especially Frackson Chitheka’s case
(Supra), the court shall uplift the notice pay, severance allowance, and compensation for unfair
dismissal by 65%.

In light of the above the Applicant should be awarded the following:

(a) Notice pay MK 862,890.00

(b) Severance allowance MK 1, 379, 313.00

(c) Compensation for unfair dismissal MK17, 824, 968. 00

Total MK19, 628, 685.00

Add: 65% inflation MK12, 758.645. 25

Sub-Total MK32, 387, 330. 25

(d) Compensation for unfair labour practices MK 6, 000, 000.00

Grand Total MK38, 387, 330. 25

The Court award the Applicant MK38, 387, 330. 25 and the same must be paid within 7 days from
the date of service of the judgment to the Respondent.

Delivered in chambers on the 25th day of March 2025 at Zomba.

32
HON. PETER M.E KANDULU

DEPUTY CHAIRPERSON

33