Mtokoma, Mailosi, Chitawira, Mtungama v College of Medicine Sports Complex (IRC MATTER 593 of 2020) [2025] MWHC 6 (3 February 2025)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT PRINCIPAL REGISTRY MATTER NO. IRC 593 OF 2020 In the dispute between: CHILETSO MTOKOMA..............cccecscsccsccscsssccececcscsceeeseseeeeeees 18T APPLICANT LUKTA MAILOSI..............ccceceseececcceccscsccccsssccececescsseeescsseeeeees 2NP APPLICANT JANET CHITA WIRA...........ccceccccscsccccscscsccscscscescsceesessseeeesees 38P APPLICANT LYNESS MTUNGAMA..........ccccccecsccccscscsccecsccccscscecesesesseseseees 47H APPLICANT -AND- COLLEGE OF MEDICINE SPORTS COMPLEX...............csseeeeeees RESPONDENT CORAM: TAMANDA C. NYIMBA _ : Deputy Chairperson Applicants : Present (litigants in person) S. M. Kamfose : Counsel for the Respondent R. Msimuko (Mrs) : Court Clerk JUDGMENT 1 INTRODUCTION 1.1 The applicants in this matter are former employees of the respondent. The respondent terminated the applicants’ employment contracts on 13 July 2020 after which the applicants commenced this action claiming various reliefs including compensation for unfair dismissal. The respondent denies all the claims instituted by the applicants. 1.2 After the matter went for a pre-hearing conference, the respondent paid the applicants all their terminal benefits such that the only issues subject of resolution by this Court concerns whether the circumstances under which termination of the applicants’ services occurred amount to unfair dismissal and whether the applicants are entitled to compensation for unfair dismissal. The parties separately confirmed this state of affairs at the commencement of hearing in this action. 1.3 I must also express my gratitude to both parties for their comprehensive written submissions. I should equally say that in arriving at my decision I 1 have, where relevant, taken into account all of those submissions, even if I do not make express reference to each one in this judgment. 2 THE FACTUAL MATRIX 2.1 2.2 2.3 At the trial, the 1*t and 2" applicants testified on their own behalf and on behalf of the 3“ and 4" applicants. Mr. George Chitunga, the respondent’s General Manager and Mr. Stuart Chirambo, former Acting Registrar of the College of Medicine, gave evidence on behalf of the respondent. In this respect, the pertinent and indisputable facts of this matter — as garnered from the applicants’ witnesses’ evidence-in-chief, cross-examination and re- examination and from the respondent’s witnesses’ evidence-in-chief, cross- examination and re-examination — are as follows: The applicants are former employees of the respondent. At divers dates, they were engaged to work in different departments of the respondent. The 1“ and 2° applicants were employed as waitresses. The 3" and 4" applicants were working as Chef and Crunch Attendant respectively. The applicants were all on contracts for a specified period renewable on agreement. The applicants first became employed by the respondent as follows: the 1* applicant on 21“ October 2016; the 2" applicant on 22" June 2015; the 3" applicant on 20" October 2016 and the 4™ applicant 12™ July 2016. During the subsistence of the applicants’ contracts of employment in the year 2020, the respondent faced economic challenges caused by Covid-19 pandemic. Effective 9 April 2020 — through an internal memorandum! issued on 2™4 April 2020 and on account of Government’s directive limiting gatherings with a view to arrest spread of Covid-19 — the respondent announced an indefinite cessation of its operations. The respondent was not generating profits or income since the Covid-19 directive meant the respondent was not allowed to accommodate and/or sale to people beyond the number prescribed in the directive. 1 Exhibit GC1. 2.4 On 7" April 2020, the respondent called a general meeting where members of staff were, among other things, informed that the uncertainty engendered by the pandemic had a huge bearing on their employment status’. 2.5 Furthermore, the foregoing predicament prompted the respondent to send home a number of its employees including the applicants herein. However, the respondent continued to pay the applicants’ salaries while they remained at home in April 2020, May 2020 and June 2020. 2.6 On 22™ May 2020, the respondent convened another general meeting. At this meeting, members of staff were informed that due to the rising number of Covid-19 cases, it was not clear when the respondent would reopen its operations and also that it may not be able to continue paying salaries as its reserve funds were depleted. Significantly, members of staff were advised that their contracts might be terminated since there were no operations’. 2.7 In June 2020 and precisely a day before the Fresh Presidential Elections conducted by the Malawi Electoral Commission, the applicants and their fellow members of staff were called back to work as the respondent found some respite in terms of business because the Malawi Electoral Commission engaged the respondent as its tally centre. Let me here hasten to point out that the applicants asserted that revenue from the business the respondent got from Malawi Electoral Commission was substantial to the degree that the same was adequate to cater for respondent’s workforce salaries for at least six months. This Court jettisons that assertion for being bare and not borne out by cogent evidence. I shall therefore say no more about it beyond this cursory reference. 2.8 After the Fresh Presidential Elections results were announced, members of staff including the applicants herein went back home only for the respondent to summon them to a meeting which took place on 12" July 2020 where they were notified that their services would be terminated effective 12 August, 2020 due to the respondent’s failure to raise money for its operations and salaries of its employees. In total, there were 68 employees whose services were terminated and this figure encompasses the applicants herein. 7 ? Exhibit GC2 (minutes of the meeting). 3 Exhibit GC3 (minutes of the meeting). employees — described by the respondent as “skeleton staff’ — were retained by the respondent. 2.9 The respondent resumed operations on 17" October 2020 with part time employees. Subsequently, it recruited new employees who applied for positions it had advertised. 2.10 This concludes the factual matrix germane to the resolution of this action. 3 THE APPLICABLE LAW 3.1 This being a civil action the burden of proof is on the party who asserts the affirmative, namely the applicants. As regards the standard of proof in civil cases, the same is on a balance of probabilities. As to meaning of “balance of probabilities”, this is best exemplified by interrogating the difference between succeeding on the balance of probabilities and failing on the balance of probabilities. In Miller v. Minister of Pensions? Denning J said: "Tf the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is ” not. 3.2 To articulate the foregoing statement in simple percentage terms, if a tribunal concludes that it is 50 (fifty) percent likely that the applicant's version is true or right, then the applicant loses. Contrastingly, if the tribunal comes to the conclusion that it is 51 (fifty-one) percent likely that the applicant’s version is true or right, then the applicant carries the day. 3.3. 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. Section 57 (2) of the Employment Act 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 ‘Chipiliro Banda v Southern Bottlers Ltd [2012] MLR 53 (HC). 5[1947] 2 All ER 372. 4 made, unless the employer cannot reasonably be expected to provide the opportunity. 3.4 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. 3.5 In the interests of brevity, I undertake to cite — where relevant — the rest of the applicable statutory and case law in appropriate places in the “Analysis-and- Disposal” segment of this judgment. 4 ISSUES FOR DETERMINATION 4.1 As earlier stated, the material issues this Court must resolve in this action are: "Whether the circumstances under which termination of the applicants’ services occurred amount to unfair dismissal; and whether, if the threshold question is responded to in the affirmative, the applicants are entitled to compensation for unfair dismissal. 42 As will be discovered, the threshold question will generate sub questions and this Court shall answer them all. 5 ANALYSIS AND DISPOSAL 5.1 It is the tradition of this Court not to place the parties in what I call “gratuitous suspense” respecting the decision this Court finally arrives at. Accordingly, for reasons I shall be setting out hereunder, it is my judgment — on a preponderance of probabilities — that the applicants’ claim for unfair dismissal and compensation thereof are well founded. The applicants must carry the day following this Court’s careful scrutiny of the questions formulated formerly in the “Jssues-for-Determination” section of this judgment and, importantly, in light of the relevant facts and applicable law. 5.2 I now proceed to set out my reasoning. 5.3 5.4 5.5 5.6 "Whether the circumstances under which termination of the applicants’ services occurred amount to unfair dismissal: For convenience, I shall begin by presenting the respondent’s arguments on this question. In the main, the respondent contends that the applicants have failed to prove that they were unfairly dismissed because they have evidentially not shown that the respondent’s actions in dismissing them were not in conformity with section 57 of the Employment Act. That the respondent’s reason for terminating the applicants’ services was valid as it was clear that prior to effecting the mass terminations, the respondent suffered economic challenges by reason of the Covid-19 pandemic. That the respondent gave notice to the applicants of its intention to terminate the applicants’ employment contracts. Additionally, it is the respondent’s contention that it was a term of the applicants’ contracts of employment that their appointment would remain effective only for as long as the respondent generated sufficient money to cover all the expenditure relating to the employees’ remuneration. Thus, it is the respondent’s submission that termination of the applicants’ contracts herein was not only in line with employment law but also in accordance with the contracts signed by the parties. That the respondent complied with all the needed requirements prior to terminating the applicants’ services. Shifting attention to the applicants’ arguments, it must be appreciated at the outset that, as litigants in person and thus uninitiated in the field of law, their line of reasoning is convoluted and rather unstructured. Be that as it may, the applicants’ functional contention is effectively that despite the respondent notifying them on 12" July 2020 that it was terminating their services effective 12" August 2020 owing to the respondent’s lack of resources to pay their wages and sustain its operations, they were very surprised that some of their colleagues’ jobs were not affected and this cements their charge that they were unfairly dismissed. I must hasten to point out that the fact that a number of the applicants’ fellow employees did not lose their jobs (notwithstanding the respondent’s financial straits) was confirmed by the respondent through its General Manager, George 6 Chitunga, who testified that the respondent’s workforce comprised of 75 employees out of which it terminated services of 68 employees and retained seven 7 employees as so called “skeleton staff”. 5.7 Turning to the application of the law to the relevant facts informed by the foregoing arguments as put forth by the parties, first, it is hackneyed that under section 57 of the Employment Act an employment contract can only be terminated based on the employee’s capacity, conduct or the operational requirements of the employer’s undertaking. If the grounds for effecting termination of an employment contract are capacity or conduct of the employee, valid reasons must be proffered for the termination. The burden of showing that the reasons for dismissal are valid is on the employer®. 5.8 On termination on grounds of capacity and conduct, the Court in Chifundo Chioko and 59 Others v. First Capital Bank’ illuminatingly said this: “Termination on grounds of capacity relates to an employee ’s failure to perform and deliver on the responsibilities demanded of a position where an employee represented that they possess the requisite qualifications, Skillsets and experience required for the performance of such responsibilities [.....] Termination on grounds of conduct relates to an employee's relationship with colleagues in the workplace, third parties dealing with the undertaking as well as the society at large. Conduct also relates to the employee’s dealings with the assets, resources and financial instruments owned by an employer. To that end, a dismissal based on conduct may involve an employee’s insubordination towards superiors, inappropriate and unsanctioned or unlawful behavior towards colleagues, abuse of an employer’s resources and assets or engaging in corrupt dealings using , one’s position to advantage personal interests.’ 5.9 Clearly, the instant case has nothing to do with dismissal on grounds of capacity nor conduct. In other words, during their employment the applicants 6 Section 61(1) of the Employment Act; Mangulama v. Raiply Malawi Limited Matter No. IRC 254 of 2003 [Unreported]. 7 Matter No. IRC 10 of 2020 (Mzuzu Registry) [unreported]. 7 5.10 5.11 had given no cause for dissatisfaction by reason of their conduct nor capacity. Rather, the applicants’ dismissal has everything to do with the third ground for terminating an employee’s contract, namely “operational requirements”. This is because the respondent stated that it terminated the applicants’ services following economic challenges it grappled with as it was unable to operate and generate funds to run its business as well as remunerate its employees owing to Government’s directive banning all gatherings. In truth, termination of employment on the basis of operational requirements entails that the employer can terminate employment for a host of reasons that have a bearing on the employer’s business or operations. These reasons may touch on finances of the business; implementation of new technology that renders certain roles obsolete; company restructuring due to mergers or economic factors; outsourcing operations to a third party; completing a specific project that no longer needs a dedicated workforce; or streamlining operations leading to redundancies in certain positions. Essentially, any situation where a business needs to change its structure or operations, causing certain jobs to become unnecessary is tantamount to an operational requirement. The Court in Chioko® further expounded on what termination of an employee’s contract by reason of operational requirements entails. It said: “In this context, and only in this context, is the employer not obliged to afford an employee the opportunity to explain their side of the story against allegations. On the other hand, the employer is required to follow certain protocols and procedures before and in the period leading to termination. In that regard, ensuring justice and fairness for the employee underpin the law ’s requirement for the employer to follow these specific protocols and procedures when carrying out terminations based on operational requirements. This is because, for operational requirements, an employee 's contract is ordinarily terminated without any fault on the part of the employee. As such the law’s objective in requiring specific protocols and procedures is to mitigate and minimize, as much as possible, any hardship 8 As above at p.20. and suffering the employee may endure, given that they are not at fault when such terminations occur. For that reason, terminations of this sort have come to be known as ‘fault free [or no-fault] dismissals’. Fault free , dismissals include retrenchments and redundancies.’ 5.12 And so, the fairly settled principles of law in this domain are that, when carrying out terminations for operational requirements as happened in the present case, the employer is not only obligated to show a valid reason speaking to the operational requirement(s) but also to act with justice and equity in all the circumstances of a given case. Critically, the law saddles the employer with an obligation to consult employees before effecting terminations based on operational requirements’. 5.13 The burning question then becomes: were the applicants herein consulted by the respondent before it dismissed them on the basis of the respondent’s economic challenges or indeed operational requirements? This question is invariably one of fact and degree. I am certainly convinced that in the matter under consideration, the evidence is resounding that the applicants were not consulted at all by the respondent. 5.14 All the respondent did was issue an internal memorandum on 2" April 2020 wherein it announced a pause in its operations for an unspecified period effective 9" April 2020 citing inability to generate income following Government’s directive limiting gatherings with a view to arrest increasing numbers of Covid-19 cases. The respondent then called a general meeting on 7 April 2020 where it, inter alia, simply informed its employees including the applicants herein that the uncertainty caused by the Covid-19 pandemic had a huge bearing on the employment status of its employees. 5.15 Further, the respondent convened another general meeting on 22" May 2020 where it also merely informed its employees that due to the rising number of Covid-19 cases, it was not clear when the respondent would reopen its operations and also that it may not be able to continue paying salaries as its reserve funds were depleted. Also, the respondent advised its employees that ° Alex Malikebu & 3281 Ors v. ADMARC Limited Matter No. IRC 554 of 2023 [unreported]; Justin Chikaonda and Ors v. Malawi Savings Bank Ltd (FDH Bank Ltd) (RC Matter No. 222 of 2016 (Principal Registry) [unreported]; Eric Thomson and 53 Ors v. Telekom Networks Malawi Plc Civil Appeal No. 9 of 2023 (Being IRC Matter No. 739 of 2019) (Principal Registry) [unreported]. 9 5.16 5.17 5.18 5.19 their contracts might be terminated since it was still unable to reopen its business. Subsequently, on 12 July 2020 the respondent called a meeting where it finally communicated to its employees that it had terminated their services effective 12'" August 2020 due to its failure to raise money for its operations and employees’ salaries. In my considered view, the respondent’s foregoing actions cannot amount to consultation. What truly happened was simply a cascade of information that was wholly top down as distinct from an engagement where the applicants or indeed the rest of the respondent’s employees had room to propose certain options to the respondent such as a reduction in their wages and benefits or taking unpaid leave for the duration of the cessation of respondent’s operations. Mind you, it is a fact that the respondent resumed its operations on 17° October 2020. It recommenced its business with part time employees but subsequently recruited new employees who applied for the positions it advertised. This means counting from 12" August 2020 (the date whereon the applicants’ dismissal became effective), it only took the respondent 2 months and 5 days to reopen its business. Surely, at a bare minimum, the option of the applicants proceeding on unpaid leave was feasible and ought to have been accepted by the respondent had the applicants been afforded an opportunity to suggest the same as a way of obviating a complete loss of their jobs. At any rate, the respondent was bound to hugely benefit from having to invite back the applicants to restart their jobs rather than having to recruit new staff members who in most cases require training to acquaint themselves with a new job or role. In the end, no opportunity was ever presented to the applicants or the rest of the respondent’s employees to discuss the prospects of a different approach to the one decided by the respondent of outrightly terminating the applicants’ services. Plainly, the absence of consultation (before a decision to terminate the applicants’ employment was taken) when the applicants had the potential to impact on the respondent’s decision with their views, suggestions or representations is indicative of an unfair process or one devoid of justice and equity. 10 5.20 5.21 5.22 It is worthwhile to state that the process of listening to the applicants’ views, suggestions or representations referred to above is just one of the many diverse consultation methods employers may employ before effecting terminations grounded on operational requirements. Simply, there is no prescriptive way of conducting consultations. Some consultations may occur with individual employees and others collectively and sometimes depending on whether the workplace is unionized or non-unionized. What is most important is the opportunity to have views, suggestions or representations from employees or employees’ representatives or, in other words, an opportunity to propose other means by which the employer can possibly minimize the impact of a retrenchment or redundancy state of affairs. The respondent in the present matter would not have been obliged to adopt any of the applicants’ views, suggestions or representations except to, I think, reasonably or conscientiously reflect on the said views, suggestions or representations and not to simply dismiss the applicants’ views, suggestions or representations out of hand. Indeed, the respondent could have still arrived at the exact decision it made of terminating the applicants’ services but this time having reasonably or conscientiously considered the applicants’ representations or views as employees who were going to be affected by the respondent’s decision. I also find it very appropriate to say a bit more by way of mostly obiter on the “process”, for lack of a better word, of consultation. Short of defining what “consultation” is; which word is conceptually very broad and, therefore, does not lend itself to a prescriptive definition, I opine that consultation in the industrial relations sphere generally entails providing employees or employees’ representatives sufficient and accurate information about the subject matter of the consultation (for instance, proposed changes in operational requirements) as to permit an informed consideration and meaningful counter-proposals, responses, views, options or suggestions to minimize the effects of any proposed changes in operational requirements which may culminate in retrenchment or redundancy. ll 5.23 Indeed, lending support to these preceding sentiments, the Court in the Chioko!® case — endorsing Justice Sikwese’s views in her leading book!! on labour law in Malawi — said the following: “[....] it is not enough to simply allege that the company is experiencing economic downtrend or requires restructuring. In order to ensure justice and equity, an employer must demonstrate that there was established a transparent system by which factors necessitating the redundancy or retrenchment are clearly laid out. An employer would thus be required to produce supporting evidence, through statements of accounts, operational protocols and expected improvements and outcomes that justify the redundancy or retrenchment. An employer must demonstrate that an objective process was adopted and followed by which specific employees or positions were identified and earmarked for redundancy or retrenchment. [Justice] Sikwese highlights that fair labour practice in retrenchments and redundancies entails that practices followed must be even handed, fair, reasonable, acceptable and expected from the standpoint of both the employer and employee but also by all fair-minded persons looking at the unique relationship between the employer and employee as well as good industrial and labour relations.” 5.24 It should be recollected that the respondent in this matter terminated services of its 68 employees leaving 7 employees to carry on working supposedly as “skeleton staff’. However, no evidence was forthcoming from the respondent on how it selected those 7 employees it retained. Thus, if one absents disclosure by the respondent of any pre-agreed or pre-determined criteria for retaining these 7 so-called skeleton staff, the 68 employees terminated would be absolutely entitled to think that the respondent applied some capricious factors to choose their colleagues as skeleton staff at their expense. The 68 dismissed employees may well have considered themselves more competent than their maintained colleagues. 5.25 Transparency by the respondent in priorly letting all the employees know how they were being selected to remain working for the respondent would have had 109.11 above at p.21. 1! Rachel Sophie Sikwese, Labour Law in Malawi, 4" Edition, 2022; at p.244. 12 the virtue of allaying any potential fears of arbitrariness in the exercise and would have indeed been just and equitable as well as a fair and safe labour practice. 5.26 All these considerations congregate to prompt me to make an emphatic finding that the respondent’s decision to terminate the applicants’ services in the manner it did 1s vitiated as it suffers an irreparable flaw of failure to consult its employees including the applicants herein. 5.27 To conclude, in very simple terms, statutory law as set out in section 61(2) of the Employment Act clearly provides that an employer is required to act with justice and equity when dismissing an employee. By the same token, case law as amply earlier cited shows that consultations are what animate the statutory concept of justice and equity in termination of an employee’s contract by way of operational requirements. You simply cannot terminate an employee’s employment contract by reason of operational requirement devoid of 712 and consulting him/her. “Operational requirements dismissals “consultations” are a package deal — like thunder and lightning! It is wholly necessary for the ends of justice and equity to require consultation when the reason for termination is operational requirements of the employer’s undertaking. 5.28 It follows, therefore, that the respondent’s conduct in terminating the applicants’ contracts of employment on the ground of economic challenges (which for all practical intents and purposes was a retrenchment) without complying with the legal requirement of consulting them, amount to unfair dismissal by the respondent, plain and simple. 5.29 Before I rest, I recall that the respondent also contended that in terminating the applicants’ services, it complied with a term of the contracts of employment signed by the parties to the extent that the applicants’ appointment would remain effective only for as long as the respondent generated sufficient money to cover all the expenditure relating to the employees’ remuneration. In that regards, submits the respondent, termination of the applicants’ contracts was 12 Or “economic challenges dismissals” as specifically occurred in the instant case. 13 not only in line with employment law but also in accordance with the contracts signed by the parties. I most emphatically reject that submission. My reasons follow. 5.30 To start with, it repays to cite the relevant term of the contract of employment. It is couched in the following terms: “5. FUNDING OF APPOINTMENT The Employee confirms that he/she is aware that the College of Medicine is funding this appointment from funds generated from Sports Complex (i.e. not from the University of Malawi funds) and that his/her appointment shall remain effective only for as long as sufficient money is generated to cover all expenditure relating to the employees remuneration. If this income becomes exhausted prior to the expiration of the period detailed in paragraph 4 above, this appointment shall terminate accordingly at such earlier stage.” !° (sic) 5.31 Examining the term, it is hardly rocket science for one to appreciate that what it really says is that the subsistence of the appointment of any of the respondent’s employees’ who signs the contract is contingent upon the respondent being able to make sufficient income to cover all expenditure relating to the respondent’s employees’ (including the applicants herein) remuneration. That if such funds were depleted earlier than the expiration of a given contractual period, the respondent’s employees’ appointments would in consequence thereof so terminate at such earlier stage. 5.32 Granted, the term is very unambiguous. Moreover, in freely signing their contracts of employment in which the term was an essential element of, it can solidly be presumed that the applicants agreed to and were fully aware of the implication of the term. Be that as it may, the respondent never led any evidence speaking to the state of affairs that notwithstanding the term, it would capriciously retain some employees irrespective of the respondent’s inability to generate adequate income to cover all expenditure relating to their remuneration. 13 Exhibits P2 and GCS5 (Contract Agreement for 3"! Applicant) which are one and the same. 14 5.33 5.34 5.35 5.36 Casting it another way, if the respondent genuinely suffered economic challenges to the degree that it was unable to raise funds to pay its employees, then the respondent should have terminated contracts of all its 75 employees. In my firm and considered view, the application of the term was rendered ineffectual the moment the respondent resolved to terminate services of only 68 of its employees. By arbitrarily retaining 7 of its employees regardless of the fact that it was in financial difficulties, the respondent appears to have firmly ripped the term to pieces in that it only brought it to bear to the extent that the term suited its vagary. Simply, this Court cannot countenance the respondent to have its cake and eat it too by letting the respondent to — in one breath — invoke or activate the term for purposes of terminating the employment contracts of the applicants owing to the purported exhaustion of its income culminating in its failure to pay wages and yet — in another breath — allowing the respondent to disable the term to enable it whimsically maintain a select few of its employees as professed skeleton staff. With this self-contradiction in the respondent’s application of the term in respect of its employees who were in the same situation, one may take with a generous grain of salt the respondent’s assertion that it run out of funds to remunerate its employees as to lead to the dismissal of 68 its members of staff. Ultimately, in my considered view, the respondent’s invocation of the term in these contradictory circumstances appears to have been a mere ruse to sidestep or circumvent treating the applicants with justice and equity as it terminated their services. Finally, although largely inconsequential for purposes of the outcome of this case, this Court notes that a further clause’4 in the applicants’ contracts of employment on termination of service provided as follows: “3. TERMINATION OF SERVICE Either party may terminate this agreement by giving three calendar months notice in writing or, where justified in law, this agreement may be terminated summarily.” (sic) 14 As above. 15 5.37 It is in evidence and incontestable that the respondent did not terminate the applicants’ services summarily. It had no basis to do so. Instead, the respondent gave the applicants one month notice since the applicants were notified on 12" July 2020 that their services would be terminated effective 12 August 2020. However, the applicants’ contracts of employment provided for three calendar months’ notice rather than the one month notice the respondent gave the applicants. 5.38 As can be seen once again, the respondent acted according to its own desires and dishonoured a clear term of the contract providing for three calendar months’ notice respecting any party evincing intention to terminate the agreement. So, if I had proceeded on the premise that the applicants’ services were terminated on the basis of the objectionable contract, I would have found that the respondent violated the notice period by only granting the applicants one month notice devoid of any payment in lieu of the other two months. That in and of itself is also an unfair labour practice. 5.39 Bizarrely, the respondent simplistically submitted that their understanding of the law is that a contract for a specified period of time can end at any time. Further citing section 29 (3) of the Employment Act, the respondent submitted that where a contract is for a specified period of time, and either party to the contract wishes to terminate the contract before the end of the period, the minimum notice for such termination shall be fourteen calendar days. 5.40 That cannot be true of the case at hand on account of the fact that the pertinent term on termination of service provided for three calendar months’ notice. It is trite that the relevant provisions of the Employment Act set down only minimum standards which have to be adhered to by employers and employees when issues of employment are in place!>. In respect of termination of service, the applicants and the respondent contracted for three calendar months’ notice. It thus cannot groundlessly lie in the mouth of the respondent to renege on the term governing period of notice on termination of service. 5.41 Very finally, concerning compensation, the applicants — having made out their case that the manner their contracts of employment were terminated by the 15 See the preamble to the Employment Act. 16 respondent amount to unfair dismissal — are undoubtedly entitled to compensation in keeping with section 63 (1) (c) of the Employment Act. 6 CONCLUSION 6.1 For all I have articulated above, I reiterate my pronouncement earlier rendered as follows: (a) The applicants’ claim for compensation for unfair dismissal and compensation thereof is well founded and succeeds. The parties are at liberty to agree on appropriate compensation out of court. If the parties do not avail themselves that choice, this Court shall preside over a remedy hearing to assess compensation on a date and time to be fixed upon the parties filing pertinent assessment papers and the applicants filing a pertinent notice. 6.2 It bears stating that this being a modularized trial, the liability issue was just the first instalment. In that respect and on the authority of the case of JTI Leaf (Malawi) Limited v Kad Kapachika’®, the decision herein is inchoate for appeal purposes. It can only be escalated to the High Court subsequent to this Court rendering its order on assessment of compensation or the parties settling pertinent quantum of compensation out of court. To avoid potential confusion, I am saying the right of appeal remains and within the dictates of section 65 (2) of the Labour Relations Act but, at this stage, caveated by my sentiments just conveyed. Pronounced this 3" day of February 2025 at IRC, PRINCIPAL REGISTRY Tamanda Chris Nyimba DEPUTY CHAIRPERSON 16 MSCA Civil Appeal No. 52 of 2016 [unreported]. 17