Kalipinde v Omega Protection Securities (IRC MATTER 411 of 2021) [2024] MWIRC 8 (20 February 2024)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT PRINCIPAL REGISTRY MATTER NO. IRC 411 OF 2021 In the dispute between: CHIMWEMWE KALIPINDE............ccccccccccccccccccccccccccccccccccecccces APPLICANT -AND- OMEGA PROTECTION SERVICE. ............ccccccscccccccccccccccoes RESPONDENT CORAM: TAMANDA C. NYIMBA : Deputy Chairperson Applicant : Litigant in person (Present) Respondent : Absent R. Msimuko (Mrs) : Court Clerk JUDGMENT 1 INTRODUCTION 1.1 1.2 This is the Court’s judgment on the applicant’s action against the respondent on a trade dispute of withholding of terminal benefits encompassing wages, leave pay and overtime pay as per the applicant’s IRC Form 1. The respondent filed a response to the applicant’s claim by way of IRC Form 2 wherein it admitted employing the applicant but put forward general denials of the alleged trade dispute. The record shows that attempts to settle the matter at a pre- hearing conference stage were futile owing to the recalcitrant respondent who was absent without cause despite being duly served with and acknowledging the relevant notice. The pre- hearing conference minutes placed before me as compiled by the Assistant Registrar includes a claim for pension in addition to the claims in the applicant’s IRC Form 1. Subsequently, the matter was scheduled for hearing on the 12th day of September, 2023. 1.3 On the appointed date, the respondent — just like was the case at the pre-hearing conference stage - was a no-show despite due service of the notice of hearing which it, once again, duly acknowledged. Considering the respondent’s legally unexplained absence, this court invoked its powers under Section 74 of the Labour Relations Act as read with rule 25 (1) (g) of the Industrial Relations Court (Procedure) Rules and permitted the applicant to proceed to adduce his evidence in the absence of the respondent. 2 THE APPLICANT’S EVIDENCE 2.1 2.2 In his brief testimony, the applicant stated that he was employed by the respondent on 29% March, 2012 as a Security Officer/ Section Leader. He tendered in evidence a letter! authored by the respondent’s Managing Director confirming that he was an employee of the respondent from 29t® March 2012 to 6 October 2020. His salary was MK35,000.15 per month from which the respondent would deduct five percent (5%) to cater for his pension contribution. He went on to testify that he was not allowed to go on leave unless he was unwell or was bereaved. He would also work extra hours or overtime. According to the applicant’s IRC Form 1, he reckoned that his accrued leave days are one hundred and nineteen (119) translating into withheld leave pay amounting to MK160,191.85. His total accrued overtime pay is MK87,500.38. 2.3 The applicant stated that during certain months, the respondent did not pay his full salary. As per the applicant’s IRC Form 1, fora period of 10 months, the respondent underpaid his salary by MK4,840.15 which translates into a total underpayment of MK48,401.50 over the said period. He tendered in evidence a copy of his payslip? bearing out how he was underpaid. 1 Exhibit P1. 2 Exhibit P2. 2.4 He informed the Court that in view of the meagre salary coupled with the fact that the guarding sites he was assigned to were far, he was left with no option but to resign. However, upon his resignation the respondent told him that he would only be paid leave days accruing for one year. He stated that the respondent did not even live up to this undertaking. 2.5 Regarding his pension, the applicant testified that although the respondent was deducting? five percent from his salary as his pension contribution, the same was not being remitted to the respondent’s pension fund managers for a period of 10 months‘ which translates into withheld pension amounting to MKS50,080.155. 2.6 The applicant concluded his testimony by beseeching the Court to penalize the respondent and award him such sums as would reflect the fact that the respondent utilized the money it withheld from him which he asserted was gaining the respondent interest. 2.7 This was all the evidence adduced before me in this matter. 3 ISSUE FOR DETERMINATION 3.1 The issue to be resolved is whether the applicant is entitled to withheld wages, leave pay, overtime pay and pension. 4 THE APPLICABLE LAW 4.1 This being a civil action the burden of proof is on the party who asserts the affirmative,© namely the applicant. 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 3 See exhibit P2. 4 Exhibit P3. ° 5% employee contribution for 10 months (K15,080.00) plus 10% employer contribution (see section 12(1)(a) of the Pension Act 2010) for 10 months (K35,000.15) at a monthly salary of K35,000.15. SChipiliro Banda v Southern Bottlers Ltd [2012] MLR 53 (HC). 3 succeeding on the balance of probabilities and failing on the balance of probabilities. In Miller v. Minister of Pensions’ Denning J said: "If 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." 4.2 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. 4.3 Section 31 of the Constitution provides for an employee’s right to fair labour practice. It is trite learning that the law provides that an employer is supposed to pay his employee wages for services rendered. Section 3 of the Employment Act defines an employee as “any person [...] who performs work or services for another person for remuneration or reward on such terms and conditions [..]”. 4.4 Section 52 (2) of the Employment Act specifically prohibits withholding of wages. It provides that: “No employer shall deduct from an employee’s wages any amount, except [...]”. The provision spells out exceptions under which an employee’s wages may be deducted. 4.5 From the foregoing statutory provisions, it can be appreciated that labour rights are human rights issues and withholding wages without any justified and reasonable ground or making an employee work devoid of remuneration is contrary to the Employment Act and the supreme law of land hence an infraction 7[1947] 2 All ER 372. 4.6 thereof. Thus, an employer is enjoined from withholding wages of the employee unless permitted by law. The only way to withhold wages under the law is under the exceptions listed in section 52 (2) of the Employment Act or where an employee caused damage to chattels of the employer and this relates only the cost of the damage®. In the end, the deduction must also not be over 50% of the net salary?. Section 3 of the Employment Act defines wages to mean “all earnings, however designated or calculated capable of being expressed in terms of money and fixed by mutual agreement or by law, which are payable by virtue of a written or unwritten contract of employment by an employer to an employee for work done or to be done or services rendered or to be rendered”. This definition ensures that whether there was a written or an unwritten agreement, an employee is entitled to money for work done or to be done. S ANALYSIS AND DISPOSAL 5.1 5.2 I should point out at the outset this court appreciates that there is no material to consider from the respondent’s side. The applicant’s evidential material stands uncontroverted as it was not assailed by the recalcitrant respondent as it did not avail itself at the hearing and did so without reasons. In these circumstances, it is apposite that I quote in extenso a passage from the case of John Maulidi v. Enock Malindi and Prime Insurance Company Limited!° wherein Kamwambe J. had this to say respecting situations where no evidence is forthcoming from the defence/respondent: 8 Section 56 (3) and (4) of the Employment Act. ° Section 52 (2) of the Employment Act. 10 HC (PR) Civil Cause Number 1773 of 2009 (unreported). 5 “There is nothing to consider as evidence from the Defendant's side. The court does not argue on behalf of any party. It must play its neutral role so that there is no smell or appearance of bias just because one party is not there. However, the interests of the [party who has tendered no evidence] [......] shall be safeguarded. The Plaintiff should prove each and every averment he makes on a balance of probabilities. The court should convince itself that this position is reached. It is not automatic that Plaintiff has the day, just like that, just because the other party has tendered no evidence, [................ |. The court should closely consider and scrutinise Plaintiff's evidence in case there are some material contradictions. There could also be material omissions”. 5.3 In the instant matter, this Court has no reason to doubt the applicant’s narrative as it found him to be a witness of truth. Just an observation that aside from the claim for withheld or unpaid leave pay, the rest of the applicant’s claims in relation to withheld or underpaid salary, overtime pay and pension are evidentially confined to a period of 10 months. I do not know why that is the case but it could mean the applicant has no issues with the respondent outside the cited 10 months’ period. 5.4 Also, a brief comment on the pension claim is called-for. It is clear from the applicant’s testimony that the pension scheme was contributory. It follows, therefore, that the applicant was entitled to both his and the respondent’s contribution towards the scheme. In the labour market, contributory schemes are the order of the day!!. Employees and employers make contributions to the pension and when it is time for the pension to be accessed, the employees get their own and the employer’s contribution to the pension. 11 See section 12(1)(a) of the Pension Act 2010. 6 53.5 5.6 5.7 5.8 Reverting to the evidence, when all is said and done there are neither material contradictions nor material omissions respecting the applicant’s evidence. Applying the cited law to the facts of the present matter, I have no doubt in my mind that the deprivation or withholding of the applicant’s terminal benefits was wrongful. In the result, this Court having had recourse to the applicable law and there being no contrary evidence from the respondent to the applicant’s claim which claim is legally sound and supported by cogent evidence, hereby determines that, on a preponderance of probabilities, the applicant’s claim has been made out in its entirety in that the respondent withheld the applicant’s terminal benefits as follows: 1. Leave pay = MK160,191.85 2. Wages = MK 48,401.50 3. Overtime pay = MK87,500.38 4. Pension = MK50,080.15 TOTAL = MK346,173.88 However, it should be recalled that the applicant herein, who isa litigant in person and not well-versed in the law, remarkably specifically prayed to this Court to award interest on any amount due to him as he asserted that his withheld dues were being used by the respondent and gaining interest. In that regard, I award the applicant interest based on the prevailing National Bank of Malawi lending flat rate of 32.9 per cent on the total sum of MK346,173.88 for four years translating into a final award of MK801,738.71. The basis for so awarding interest is as follows. Firstly, section 53 of the Employment (Amendment) Act 2010, provides that “/w/ages and other remuneration due to an employee on the termination or completion of his contract of employment shall be paid within seven days after the termination or completion of such contract of employment”. The applicant in this matter was supposed to receive his terminal dues within seven days of 7 5.9 becoming due to him after he severed his contract of employment with the respondent on 6 October, 2020 meaning that the respondent wrongfully withheld the money in breach of the aforementioned mandatory statutory obligation. It is also trite that the respondent is in a profit-making business of provision of security services. And so, by withholding the applicant’s terminal benefits, the respondent is presumed to have made profit from the money withheld from the applicant. This includes the withheld pension benefits which the respondent was not remitting to its chosen pension fund managers. 5.10The second reason for awarding interest on the applicant’s withheld dues is because on the authority of the cases of Gwembere v Malawi Railways Limited!? as well as Madinga v Nedbank!? interest is awardable on money that is due but wrongfully withheld by the other. 6 CONCLUSION 6.1 6.2 To sum up, the respondent must pay the applicant a total sum of MK801,738.71 as earlier decreed. Informed by section 53 of the Employment (Amendment) Act 2010, I further order that the said total sum of MK801,738.71 be paid within 7 days from the date of service of the judgment herein on the respondent failing which the applicant is at liberty to bring to bear any applicable enforcement measures or process as will attain compliance by the respondent. I saw no utility in issuing a notice of delivery of judgment in this matter in light of the fact that it is on record that since the applicant commenced these proceedings, the respondent has never bothered to appear before the Court despite acknowledging service of all court sanctioned process or notices. Thus, the judgment herein might as well just be served on the respondent for it to have 12 [1978-80] 9 MLR 369. 13 [2009] MLR 386. notice of its court-imposed obligations as spelled out in this judgment. 6.3 Any party not contented with this judgment is at liberty to exercise its right of appeal to the High Court of Malawi within the dictates of section 65 (2) of the Labour Relations Act. Order accordingly. Pronounced this 20 day of February 2024 at IRC, PRINCIPAL REGISTRY Tamanda Chris Nyimba DEPUTY CHAIRPERSON