Kapusa v Malawi Broadcasting Corporation (IRC MATTER 44 of 2020) [2023] MWIRC 3 (17 August 2023)

Sa Sele i THI | INDUSTRIAL | The Malawi Judiciary 9 “= IN THE INDUSTRIAL RELATIONS COURT SITTING AT THE PRINCIPAL REGISTRY MATTER NO. IRC 44 of 2020 (Bt.) In the Dispute Between: GEOFREY KAPUSA..............cccccceccccseccssesecsccsecssesessscneceseas APPLICANTS AND MALAWI BROADCASTING CORPORATION.........-00e0e0eee0 RESPONDENTS CORAM: Austin B. B. Msowoya, Chairperson Msimuko (Mrs.) Court Clerk At the Bar: Chipeta, of Counsel, for applicant Mablekisi, of Counsel, for respondents Ruling on a Motion to Review an Order of Assessment of Compensation (In Chambers, r. 5A (2), the Industrial Relations Court (Procedure) Rules) Msowoya, A. B. B., This is a ruling on respondents’ motion to review an Order of Assessment delivered by His Honor Mr. Hussein, Assistant Registrar (as he then was) on January 26, 2022 ifia suit applicant brought against respondents, his former employers. That assessment was ordered by the Court on April 30, 2021 on a finding of liability against respondents in a summary judgment. The Court entered said summary judgment on grounds that respondents’ Statement of Reply did not disclose a reasonable defense to assertions of unfair dismissal in applicant’s Statement of Claim filed in IRC Form I. The motion to review the Assistant Registrar’s Order of assessment of compensation was itself filed under r. 5A (2) of the Industrial Relations Court (Procedure) Rules. On account this ruling is predicated on a motion for review of the Assistant Registrar’s award of compensation, I do not find it necessary to outline the facts grounding applicant’s suit. Those facts were effusively captured in the Court’s order entering summary judgment and succinctly summarized in the Assistant Registrar’s order on assessment of compensation. For the moment, suffice to say that according to applicant’s Statement of Claim, he sought (a) damages for unfair dismissal or unfair termination of employment contract, (b) severance allowance and (c) reinstatement. 1 Before I begin my opinion, a quick comment on terminology denoting compensation in the Industrial Relations Court in cases of unfair dismissal under the Employment Act. As obviously noted, applicant purports to claim ‘damages’ for “unfair dismissal or unfair termination of employment contract” as one of, and, ostensibly, the primary remedy in his suit. While the term is often used indiscriminately in claims of unfair dismissal, I am of the strong conviction that its use in suits under the Employment Act is the underlying cause and reason for much of the confusion that has permeated assessments of compensation in cases of unfair dismissal in the Industrial Relations Court since the court’s establishment in 1996 and the Act’s enactment in 2000, some two and a half decades ago; which should not be the case by now. In the legal framework established under Cap. 55:01 of the Laws of Malawi, the Employment Act (in parts in this order, the Employment Act), there is no such remedy as ‘damages’ for unfair dismissal nor indeed damages for termination of employment contract. Instead, the Employment Act categorizes this particular remedy as ‘compensation’ for unfair dismissal or termination of contract of employment, not damages. It is significant to point this distinction out because the confusion extant in assessments of compensation in the Industrial Relations Court stems mainly from the misconception of the nature of the remedy available to a successful claimant in a suit for compensation for unfair dismissal under the Employment Act. This, contrasted with the nature of damages generally available and awarded in regular civil proceedings, either in the High Court or the magistracy. To put this hypothesis in context, over the years since the establishment of the Industrial Relations Court and the enactment of the Employment Act, ‘damages’, as a term or concept of recompense at law, has inadvertently been imported from practice obtaining in regular civil proceedings in the High Court and the magistracy and transposed onto the ptactice in the Industrial Relations Court when assessing compensation for unfair dismissal. In my considered reflection of the terms, the conceptual justification for awarding compensation in cases of unfair dismissal is markedly different from the conceptual justification when assessing damages in regular civil proceedings. The legal basis for awarding compensation in cases of unfair dismissal in the Industrial Relations Court is statutory, encapsulated in s. 63 of the Employment Act. On the other hand, the legal basis for awarding damages in regular civil proceedings is largely Common Law. For this reason, the approach to assessment of compensation under the Employment Act and damages in the High Court and magistracy is different and should never be transposed one onto the other. Indeed, the approach towards assessment of damages in regular civil proceedings should not have been transposed onto assessments of compensation for unfair dismissal at all in the Industrial Relations Court, whether before 2000 and especially in the years beyond 2000 after passage of the Employment Act (Cf: Dr. B. S. Chawani —v- The Attorney General, (2008) MLLR 1; Kachinjika —v- Portland Cement company Limited (2008) MLLR 161). It is trite learning that in civil proceedings generally, the term damages, or concept if you will, ordinarily references the court’s grant of an award that aspires to put a claimant in the same position they would have been in had it not been for the wrong committed against them, whether such remedy be grounded in tort or contract. To put it more succinctly, when assessing damages in regular civil proceedings, the High Court or the magistracy attempts to place the person claiming damages in a position they would have been in had it not been for the wrongful act for which damages are claimed. So, a simple example; when arriving at a sum of money for reparation in personal injury cases, authority is replete and settled that where any injury is to be compensated by damages, as nearly as possible, the court should award a sum of money that will put the injured party in the same position they would have been in had they not suffered the injuries for which damages are sought (see Ulemu Simoko —v- The Attorney General, Civil Cause No. 755 of 2011 (Unrep.); Livingstone —v- Rawvards Coal Co (1880) 5 A. C. 25, per Lord Blackburn). As Msosa J. (as she then was) echoed in Namwiyo —v- Semu et al (1993) 16 (1) MLR 369 at p. 372, "Simply put, this means putting the plaintiff [back] into a position he would have been in had the tort not been committed.” On the contrary, it is my considered opinion that the compensation envisaged under the Employment Act in suits for unfair dismissal does not attempt to achieve a similar objective. Rather, compensation in suits for unfair dismissal is specifically provided for by a statutory framework, which, in and of itself, is not susceptible to terminology, sensu stricto, as liquidated or unliquidated damages. To that end, compensation under the Employment Act does not purport to put a claimant in the same position they would have been in had the dismissal not taken place. Its intended objective is simply to ameliorate the hardship occasioned a successful claimant for being unfairly dismissed. Evidently, when assessing compensation in cases of unfair dismissal, it is difficult to conceive putting a dismissed employee in the same position they would have been in had the unfair dismissal not occurred. Realistically, putting a dismissed employee in the same position they would have been in before dismissal cannot always be possible nor indeed practical. In the premises, s. 63 (4) of the Employment Act expressly provides that the overarching principle when considering compensation in cases of unfair dismissal is that such compensation be just and equitable (See DHL International Limited —v- Aubrey Nkhata, Civ. App. No. 50 of 2004 (Unrep.), per Twea, J. (as he then was)). Bearing this overriding principle in mind, as a starting point when computing compensation in cases of unfair dismissal, a court always has to follow the legal framework and formula outlined in s. 63 (5) of the Employment Acct. The challenge that has emerged from importing the concept of ‘damages’ from regular civil proceedings and transposing it onto assessments for compensation under the Employment Act in the Industrial Relations Court is that the practice has simultaneously adopted factors, elements or principles ordinarily applied during assessments of damages in regular civil proceedings onto assessments for compensation in cases of unfair dismissal. To that end, for most of the last two decades, orders on assessment of compensation in cases of unfair dismissal have routinely awarded compensation segregated into ‘heads of damages’ otherwise routinely applicable in assessments of damages in civil proceedings. Heads of compensation that are otherwise alien to the notion of compensation under the Employment Act. Heads of damages such as immediate past loss, immediate future loss, future loss up to retirement, boosting for inflation and so on and so forth. Such heads of damages, or compensation are not provided for under the Employment Act and should never be utilized by the Industrial Relations Court in assessing compensation in cases of unfair dismissal. As will presently be demonstrated in the course of this ruling, this is wrong. It has no legal basis in law and it needs to cease. Over the past two decades and years, it has only served to skewer compensation in cases of unfair dismissal, more often than not leading to unjustifiably astronomical awards of compensation that are at once unmerited and which punitively sanction supposedly errant employers without corresponding justification in law or principle. Nkhata clearly remonstrates against such practice, especially when Twea J.’s apt analysis is properly put in context. Realistically, the practice has resulted in claimants being awarded unwarranted measures of compensation beyond what they would otherwise be entitled to under the established legal framework in s. 63 of the Employment Act. In point of fact, it almost appears as if it is more lucrative to be dismissed from employment than to have to work diligently all one’s life until retirement. For this reason, it has always been my fervent hope and objective that this trend would be reversed and ultimately be discontinued in cases of unfair dismissal. Indeed, that it ought to be done away with entirely. This is the reason I emphasize the distinction between ‘damages’ in regular civil proceedings before the High Court and the magistracy and ‘compensation’ in cases of unfair dismissal be borne in mind every time the terms are raised at the Bar and used interchangeably and indiscriminately in the Industrial Relations Court. Having said that, I will now briefly outline the gist of the parties’ arguments supporting and opposing the motion to review. To begin with, in arguing the motion to review, Counselor Mablekisi deponed in an affidavit supporting the review that in his order on assessment of compensation, the Assistant Registrar awarded applicant MK12,922,606.16 comprising MK 11, 830, 554.80 compensation for unfair dismissal and MKI1, 092, 051.36 severance allowance. Counselor Ms. Mablekisi deponed that respondents are not challenging the MK1, 092, 051.36 severance allowance on grounds that it was properly and accurately computed under Part 1 of the First Schedule of the Employment (Amendment) Act 2010. What respondents challenge is the award of compensation, the MK MK 11, 830, 554.80. In seeking the review, Counselor Ms. Mablekisi deponed that the Assistant Registrar erred in that he awarded applicant compensation for immediate loss from the date of termination of employment to the date judgment was entered when the evidence on record showed that applicant could not have worked for respondents or any other employer beyond June 2019. Proceeding, Counselor Mablekisi deponed that the Assistant Registrar did not follow precedent both in the High Court and the Malawi Supreme Court of Appeal holding that compensation for unfair dismissal under the Employment Act is regulated by s. 63 of said Act. That awarding compensation for immediate past loss or indeed future loss is not within the spirit of s. 63. On the other hand, Counselor Chipeta, for applicant, argued that respondents’ reliance on First Merchant Bank Limited -v- Eisenhower Mkaka & Others, Civ. App. No. 1 of 2016 (Unrep.) is wrong in law. That Mkaka was decided per incuriam Dr. B. S. Chawani —v- The Attorney General, (2008) MLLR 1 and Stanbic Bank Ltd -v- Mtukula, MSCA Civ. App. No. 34 of 2006 (Unrep.) and is thus of no effect at law. Relying on this argument, Counselor Chipeta argues that where a claimant’s employment contract is unilaterally terminated prematurely by an employer before such claimant reaches mandatory retirement age, the measure of the claimant’s loss attributable to respondents’ action dismissing the claimant is the employee’s remuneration between the date of dismissal and the date such claimant would have mandatorily retired from employment. This is, of course, the very holding Chawani presented, and it is thus unsurprising that Counselor Chipeta champions it in arguing that applicant’s compensation constitute all salaries he would otherwise have earned up to his retirement. I have carefully considered the arguments both parties advanced, and express my profuse gratitude to both attorneys for their industry and passion advancing their client’s interests. From the authorities I have examined and analyzed, however, I am inclined to agree with Counselor Ms. Mablekisi. The authorities Counselor Chipeta relies on, Chawani and Mtukula to be specific, and which he claims Mkaka was consequently decided per incuriam against, are authorities whose facts occurred and, therefore, dealt with the position of the law before passage of the Employment Act in 2000. On the contrary, the Employment Act introduced an entirely new regime for computing compensation in cases of unfair dismissal that arguing along the lines Counselor Chipeta advances is obviously untenable at law and in principle. Now, before I weigh in with my analysis on these arguments, a word on the powers the Court has when reviewing an assistant registrar’s order under r. 5A (2) of the Industrial Relations Court (Procedure) Rules. First off, it is important, on account of the grounds set forth arguing for and against review that I render r. 5A (2) in its entirety: (2) Any decision of the Registrar or a Deputy Registrar may be reviewed by the Chairperson or Deputy Chairperson on application by a party to the matter or proceeding: and upon such review, the Chairperson or Deputy Chairperson may— (a) dismiss the application or confirm, set aside, vary or amend the decision of the Registrar or Deputy Registrar; (b) determine the matter as if it was coming before him or her in the first instance and give such decision as the case may require; or (c) refer the matter back to the Registrar, or Deputy Registrar with directions for further consideration. Clearly, upon a review of the Assistant Registrar’s decision, my role under r. 5A (2) of the Industrial Relations Court (Procedure) Rules is simply to consider the evidence that was before the Assistant Registrar and decide if, given such evidence, I would have atrived at the same decision. In essence, the powers granted me under r. 5A (2) are clearly stated. They are broad. In my determination of the motion to review, I can dismiss the application or confirm, set aside, vary or amend the decision of the Assistant Registrar. Additionally, I can determine the matter as if it was coming before me at first instance and render such decision as I deem appropriate. Alternatively, I can remit the matter back to the Assistant Registrar with directions for further consideration. In my estimation, and in light of my analysis in this matter, I am inclined to vary the Assistant Registrar’s order of assessment by applying the correct principles in assessment of compensation for unfair dismissal should I find that the Assistant Registrar erred in his application of the statutory legal framework established to govern compensation in cases of unfair dismissal under the Employment Act. In his assessment order, the Assistant Registrar’s principal reasoning for awarding applicant the compensation he did can be located at pp. 3-4 of the transcript. Principally, the Assistant Registrar seems to have placed much reliance on Magola -v- Press Corporation Ltd, Civ. Cause No. 3719 of 1998 (HC) (Unrep.) by which he posits that the possible heads of damages for a claimant unfairly dismissed include “(a) the immediate loss of wages, (b) the manner of dismissal, (c) future loss of wages, loss of protection in respect of unfair dismissal or dismissal by reason of redundancy.” Going further, the Assistant Registrar cites Mwafulirwa —v- Manica Malawi Ltd, IRC Matter No. 34 of 2004 (Unrep.) to hold that immediate loss covers a period of loss from the effective date of dismissal to the date judgment was delivered or the date on which a claimant secures alternative employment with comparable or better benefits, whichever comes earlier. He goes further, on this authority, to posit that future loss denotes loss of benefits from the date of judgment to the date of retirement or when a claimant secures alternative employment. In this regard, the Assistant Registrar concluded that this invariably involves an estimation after taking into account the peculiar characteristics of a claimant such as age, qualifications, health and the prevailing job market in such claimant’s career field. On this basis, and following Chawani and Magola, the Assistant Registrar decided that he would award compensation beyond the minimums outlined in s. 63 (5) of the Employment Act. It was his justification that applicant’s employment had been prematurely terminated and without lawful justification. In that regard, the Assistant Registrar deemed applicant’s immediate loss to have been between the date his contract was terminated and the date judgment was entered. That, so the Assistant Registrar computed, allowed for 40 months to be the definitive period of immediate loss. It was this period, juxtaposed along applicant’s remuneration of MK295, 763, .87 per month that yielded MK 11, 830, 554.80 compensation for unfair dismissal. Of course, the Assistant Registrar did not award compensation for future loss because he deemed it unjustified in that he found as a fact that applicant would not have feasibly worked beyond June 7", 2019 on account of his failing health. Now, the question on which this review turns becomes, was the Assistant Registrar correct in law to take this approach in the computation of compensation? In my considered analysis, I think not. Following is my reasoning for holding that the Assistant Registrar erred in law in applying the principles he did. First off, in Chifundo Chioko and 59 Others —v- First Capital Bank, Matter No. IRC 10 of 2020 (Mz) (Unrep.), I paid particular attention to the principles applicable in assessment of compensation for unfair dismissal under the Employment Act. For context, and to ground my reasons for awarding the compensation I make in this order of review, it is only proper that | revisit and restate these principles. To begin with, when assessing compensation for unfair dismissal, the governing legal framework is primarily s. 63 of the Employment Act. On its part, s. 63 (1) first outlines in a hierarchical order what remedies a court is empowered to consider granting. Regarding these remedies, s. 63 provides as follows: 63 (1) 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— (a) an order for reinstatement whereby the employee is to be treated in all respects as if he had not been dismissed; (6) an order for re-engagement whereby the employee is to be engaged in work comparable to that in which he was engaged prior to his dismissal or other reasonably suitable work from such date and on such terms of employment as may be specified in the order or agreed by the parties; and (c) an award of compensation as specified in subsection (4). (2) The Court shall, in deciding which remedy to award, first consider the possibility of making an award of reinstatement or re-engagement, taking into account in particular the wishes of 6 the employee and the circumstances in which the dismissal took place, including the extent, if any, to which the employee caused or contributed to the dismissal. (3) Where the Court finds that the employee caused or contributed to the dismissal to any extent, it may include a disciplinary penalty as a term of the order for reinstatement or re-engagement. (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 is attributable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal. (5) The amount to be awarded under subsection (4) shall not be less, than— (a) one week’s pay for each year of service for an employee who has served for not more than five years; (b) two week’s pay for each year of service for an employee who has served for more than five years but not more than ten years; (c) three week’s pay for each year of service for an employee who has served for more than ten years but not more than fifteen years; and ({d) one month’s pay for each year of service for an employee who has served for more than fifteen years, and an additional amount may be awarded where dismissal was based on any of the reasons set out in section 57 (3). (6) Where the Court has made an award of reinstatement or re-engagement and the award is not complied with by the employer, the employee shall be entitled to a special award of an amount equivalent to twelve weeks’ wages, in addition to a compensatory award under subsections (4) and (5). On a finding of unfair dismissal, s. 63 (1) outlines three available remedies a court may grant, laid out in a deferential hierarchy: Reinstatement, reengagement and compensation (see Emmanuel Matapa —v- the Roads Authority, Matter No. IRC 723 of 2021 (LL) (Unrep.)). Following that listing, s. 63 (2) guides the court to specifically consider reinstatement first before considering reengagement and compensation, and in that order of precedence. Only where a court determines, for one reason or another, that reinstatement or reengagement are not possible or impractical, is it given allowance to consider compensation, which seems to me to be the remedy of last resort under the compensatory framework established under s. 63. In considering compensation, s. 63 (4) requires that such compensation be one the court, in its discretion, considers just and equitable. In considering whether an award is just and equitable, s. 63 (4) enjoins the court to take into account three factors. First is the loss sustained by the employee as a consequence of the dismissal. Second is the extent such loss is attributable to an employer’s conduct in the manner dismissal was effected. And third is the employee’s own conduct as might have caused or contributed to the dismissal. Recall that s. 63 (4) expressly provides that the overarching principle when awarding compensation in cases of unfair dismissal is that such award be just and equitable. Bearing this overriding principle in mind, when calculating compensation for unfair dismissal, a court should, as a starting point, always follow the framework and formula set and outlined in s. 63 (5). In First Merchant Bank Limited —v- Eisenhower Mkaka and Others, Civil Appeal No. 1 of 2016 (Unrep.), Mkandawire J. (as he then was), expressed this very same principle at p. 4, where he stated: In assessing the compensation, the Industrial Relations Court had to stick to the spirit of sections 63 of the Employment Act (sic). Under this provision it is the duration of service before terminations that matters a lot in the calculation of the compensation that must fall due, not the loss of salary, increments and sundry amenities from the date of dismissal to the date of judgment or the assessment of damages/compensation. In the same manner future losses do not matter therefore one 7 cannot talk of loss of earnings up to the time the former employee should have retired. Certainly that is not the spirit of our Employment Act. This reasoning reflects the very philosophy that underpins s. 63 of the Employment Act. On its part, s. 63 (5) sets out a graduated scheme on which compensation for unfair dismissal should be determined. That scheme is principally dependent on two factors. An employee’s remuneration and the length of their actual service, limiting that length of service up to the date of dismissal, and no further. This framework would seem to suggest then that other factors that have routinely been considered by the Industrial Relations Court are irrelevant and inapplicable. So, for example, the asserted marketability of a dismissed employee, their qualifications, age, experience, including any notions of mitigation of loss and challenges in securing alternative employment, are all otherwise irrelevant. One may argue, but that argument is yet to be settled, that those factors might be relevant where a court determines a departure from the framework outlined in s. 63 (5) is justified. I hold this fluid view because s. 63 itself does not expressly state those factors to be relevant. In any case, such argument has not been raised at the Bar thus far and can only become an issue to determine if it is ever raised some day. Instead, s. 63 (4) outlines the factors a court ought to consider when making awards for compensation on a finding of unfair dismissal. In light of this observation, and in furtherance of the same principle, s. 63 (4) empowers a court, in appropriate cases, to award more than the awards prescribed as the minimum in s. 63 (5). In doing so, s. 63 (4) anticipates instances where circumstances Justify a court’s going beyond the minimums set out in s. 63 (5). Those circumstances include the conduct of the employer towards the employee when effecting the dismissal juxtaposed against the employee’s own conduct that may have caused or contributed to their dismissal. The combined effect of s. 63 (5) and (4) encapsulates the just and equitable principle embedded within s. 63 of the Employment Act generally, and more specifically stated in s. 63 (4). These principles were similarly, and authoritatively, echoed by the Supreme Court in Terrastone Construction Limited —-v- Solomon Chatuntha, M. S. C. A Civ. App. No. 60 of 2011 (Unrep.). On appeal from the High Court, respondent, who was appellant in the High Court and applicant in the Industrial Relations Court, was summarily dismissed on allegations he had attempted to steal nails from his employer, having been caught fagrante delicto, with the nails strapped to his leg as he attempted to leave his employers’ premises. In spite of his own admission, the trial court found for applicant only on grounds he had not been afforded an opportunity to be heard. It awarded him MK2, 900.00 as compensation for unfair dismissal. On appeal, the High Court affirmed but substituted the award and increased it to MK754, 000.00 in compensation, which was the equivalent of all salaries he had otherwise earned during the five years he had been in appellants’ employment. The Supreme Court, Chief Justice Msosa SC., (rtd), presiding and Nyirenda SC and Mzikamanda SC, JJAs (as they then were), sitting, reiterated that s. 63 (1) (c) prescribes a compensation that requires an employer to pay an employee an amount of money as recompense for unfair dismissal or unfair labor practices. The Supreme Court went on to state that such compensation is not one for measured damages or quantified losses suffered by an employee. That the provision does not even require proof from an employee of specific financial losses consequent on the unfair dismissal. Rather, that s. 63 (5) grants options to judges to consider when awarding damages for unfair dismissal, stipulating minimum sums dependent on the employee’s remuneration and length of service. The Court went on to say that judges have a wide latitude under s. 63 (4) to award more than the minimums provided in s. 63 (5) if such is deemed just and equitable. The Court expressly pointed out that in assessing what compensation is just and equitable, a judge need not only consider circumstances and interests of an employee dismissed unfairly but those of an employer too and that these should always have a bearing on any award beyond the minimums in s. 63 (5). To that end, the Supreme Court held that s. 63 (4) is not a blank check for awarding an employee dismissed unfairly any amount. More importantly, the Court emphasized that a court should always give clear reasons for awarding compensation in excess of what is set down as the minimum in s. 63 (5). So, setting aside the High Court’s award of MK754, 000.00 and substituting it with MK40, 600.00, the Supreme Court held that respondent had caused or contributed to his dismissal by his own conduct; the attempted theft from his employer who, under s. 59 of the Employment Act, had the right to dismiss him summarily. Still, given that the Industrial Relations Court had already found as fact that the dismissal was unfair only on account of failure to afford respondent the opportunity to be heard, he was only entitled to the minimum in s. 63 (5). To that end, since he had worked for just a little over five years, he was only entitled to two weeks’ pay for every year of service, in addition to a month’s pay in lieu of notice. The Jast decision which solidifies the philosophy underpinning s. 63 (4) of the Employment Act worth highlighting is perhaps Chipeta J.’s (as he then was) decision in National Bank of Malawi —-v- Benjamin Khoswe, Civil Cause No. 718 of 2002 (Unrep.), a case first filed in 2002, but whose decision was only handed down almost 15 years later, on January 24, 2017. Again, the facts leading to Mr. Khoswe filing suit are not relevant for our purposes. What is relevant, however, is the coterie of heads of compensation he claimed entitlement to, and most comically listed by Chipeta J. at p. 4 in the following manner: [Flollowing his unfair dismissal, Mr Khoswe expected to be compensated for every amenity or convenience he could recall as having enjoyed or as having been entitled to during his tour of employment in the Bank that had employed him. Thus he expected damages for loss of the right to earn a living, loss of pension, loss of dignity and reputation, embarrassment, loss of medical aid scheme, loss of remuneration, loss of annual bonuses, loss of leave grants, loss of concessionary, interest rate on house loan, loss of National Bank staff shares scheme, loss of annual salary increments, loss of access to the defendant's various recreational facilities, and loss of in-house and external training opportunities. As can be further seen, not only did he want all these damages in respect of the time he had spent at National Bank up to the time of his dismissal, but he also wanted them as from that time up to the time he should have normally retired from service. In addition, applicant also argued for loss of annual leave days, future loss, loss of pension contributions as well as loss of future pension contributions. Finally, he cited his efforts at mitigating loss as justifying and entitling him to a bequeathing of a generous and fat compensation from the court. In disposing of the appeal in the context of these claims, Chipeta J. started by pointing out that in assessing compensation in cases of unfair dismissal, the only relevant aspects of s. 63 of the Employment Act are subsections (1) (c), (4) and (5). He noted that s. 63 (4) is a crucial provision to take into account when assessing compensation. He went on to point out that s. 63 (5) immediately steps in to set out a framework for calculating the 9 minimum awardable amounts of compensation. Crucially, Chipeta J. noted that the minimum amounts stipulated in s. 63 (5) should always be subject to the court’s discretion settling for a higher award, depending on its evaluation of the case’s peculiar circumstances under s. 63 (4). Continuing with his analysis, Chipeta J. observed that these three subsections of s. 63 actually form a chain-link and operate “hand in hand” whenever the Court orders compensation in cases of unfair dismissal. Of note, Chipeta J., pointed out that save for setting the minimum levels of compensation dependent on the length of service, subsection (5) nevertheless leaves the Court a wide berth of discretion on how close the compensation it awards should remain to the minimum prescribed, or how far beyond the minimum thresholds it should go, a position the Supreme Court also took in G. M. Wawanya —v- Malawi Housing Corporation, MSCA Civ. App. No. No. 40 of 2007 (Unrep.) where it stated at p. 8: [S]ection 63 (5) then sets out the minimum the court shall award. Our reading of section 63 (4) is that a court has considerable latitude in awarding compensation under the Employment Act. In the end it really should not make any difference whether one wants to call the award an award under section 63 of the Employment Act or a common law award or any other description as one may please. The provision allows for what the Court would consider just and equitable in the circumstances of the case. If the court was minded, and the circumstances were compelling, there is nothing to stop it from awarding compensation for the unexpired term of a fixed term contract or indeed a shorter period. Where the contract of employment provides for a period of notice for termination and also payment in lieu of such notice, the compensation under section 63 (4) may be in addition to the payment in lieu of notice. Proceeding, in Khoswe, Chipeta J. noted that in requiring that the amount of compensation should be just and equitable, s. 63 (4) subjects such compensation to a reflection of the loss sustained by the employee in consequence of the dismissal in so far as such loss is attributable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal. Echoing what the Supreme Court said in Chatuntha, Chipeta J., said at p. 14: It is therefore clear from this provision that the justice and equity of the compensation to be awarded is not to be measured from a vacuum. It instead ought to be measured first from a fountain, of the level of blameworthiness of the employer in occasioning the [. . .] dismissal and then, ifit exists, also from a fountain of blame the employee also bears for inviting the dismissal on himself. On this point, Chipeta J. aptly concluded that while Section 63 (5) is ever available for the Court to check what the minimum measure of compensation set for a particular case is, it needs to specifically contend with the balancing of s. 63 (4) considerations of “just and equitable” before it settles for what it feels to be the appropriate measure of compensation it ought to award: If, therefore, there were any lesson for me to draw from this case authority, it would be that there is no fixed compensation rate or standard measure of fixing the compensation payable in respect of each and every case of unfair dismissal. Rather, bearing in mind the minimum payable compensation as prescribed by Section 63 (5) of the Employment Act 2000, the Court should feel free to settle for whatever amount it considers to be just and equitable compensation. It all depends on how the Court's assessment of Section 63 (4) considerations goes in the case that happens to be before it at the time of consideration (sic). 10 In Chioko, having considered the totality of existing authorities on the point, I extracted the following principles on assessment of compensation in cases of unfair dismissal generally, and specifically, under the Employment Act. First, the Employment Act 2000 introduced a distinct legal framework for assessing compensation in cases of unfair dismissal than was applicable under common law generally, and as was especially applicable and followed in cases before 2000. This is because under the Employment Act 2000, the framework for calculating compensation for unfair dismissal had been revolutionized. And so, under the Employment Act, the beginning point in assessing compensation in cases of unfair dismissal should always be s. 63 (4), which states: 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 is attributable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal. This position then sets down the underpinning principle in assessing compensation in cases of unfair dismissal. The compensation awarded must be an award that is just and equitable. On the other hand, s. 63 (5) sets out the basic and minimum awards below which a court should not go when making the award. In doing so, s. 63 (5) provides a graduated scheme for calculating the level of compensation. In making the award, two factors must always be borne in mind, the remuneration a claimant was getting during their employment and the duration of their service in employment. In that regard, s. 63 (5) prescribes a week’s pay for each completed year of service for a claimant who served not exceeding five years; two week’s pay for each completed year of service for a claimant serving more than five years but not exceeding ten years; three week’s pay for each completed year of service for a claimant serving more than ten years but not exceeding fifteen years; and a month’s pay for each completed year of service for a claimant serving in excess of fifteen years. Once such computation is complete, the Court is obliged to consider whether the award is just and equitable under s. 63 (4). If a court finds the award just and equitable, then it will not interfere with the award and such award will stand. If, on the other hand, it finds the award inadequate to pass the just and equitable test in s. 63 (4), it can award a sum higher than the minimum in s. 63 (5) (see Malawi Environmental Endowment Trust — y- Felix Kalowekamo (2008) MLLR 237). In taking such considerations, the Court has to have regard to the loss sustained by the employee as a consequence of the dismissal in so far as the loss is attributable to first, the actions and conduct of the employer when dismissing a claimant and second, the actions and conduct of the claimant that may have caused or contributed to their own dismissal. Invariably, where a Court decides that the award computed under s. 63 (5) is not just and equitable under s. 63 (4), and elects to go beyond the minimum thresholds in s. 63 (5) and awards a higher sum, it needs, and must set out its reasoning justifying its increase of the award or indeed its complete departure from the minimum thresholds in s. 63 (5). Ultimately, the authorities conclusively converge in principle that the Court has wide discretion to award compensation in cases of unfair dismissal, but that any such compensation must always be grounded on s. 63 (4) and (5) with justification where need be. 11 What the authorities also clearly point out is that there is no legal basis whatsoever in basing compensation on heads of damages such as immediate loss, past loss, future loss or indeed awarding compensation for the entire length of a claimant’s employment up to retirement. On this point, perhaps Twea J. articulates the position even better in DHL International Limited -v- Aubrey Nkhata, Civ. App. No. 50 of 2004 (Unrep.) where he stated: I have considered the approach of the lower court to the award of compensation. I noted that the approach was not properly articulated. The proper approach is as espoused by this Court in Mpaso’s case. Section 63 (4) requires the court to make an award of compensation that is just and equitable in the circumstances. When making such a decision, it must take into account three factors: Loss sustained by the employee consequent upon dismissal; whether the loss can be attributed to the action of employer (sic); and the extent of the employee’s contribution to the dismissal. Subsection (5) therefore gives the mandatory minimum that the court may award. Depending on the findings of the court in respect of the three above factors, it may adjust the scale upwards in respect of subsection (4). Twea J. observes that where the court determines that it will award more than the minimum in s. 63 (5), it must give reasons. That the decision of the court must not be arbitrary. He continues: It is not open to the court [to award whatever] it wants. The Court must award such sums as would, by law, be allowed. It should be clear, on the record, to the employee, employers and all why the Court decided to enhance the award from the minimum stipulated in Section 63 (5). More tellingly, Twea, J. acknowledges that Chawani, and those that followed it, grounded their reasoning, and were primarily grounded on the common law approach to employment and contractual obligations. He does acknowledge, however, that while Magola and others were largely decided and disposed of on common law, the High Court nevertheless attempted to fuse common law principles with the Employment Act 2000 in its interpretation of labor and employment rights. He also observes that in these cases, the Court based its view, in large measure, on a repealed English Act, the Industrial Relations Act of 1971, which observation is perhaps expressed in even sharper relief by Chipeta J. in National Bank of Malawi —v- Benjamin Khoswe, Civ. Cas. No. 718 of 2002 (Unrep.).* Consequently, he wondered why, in its ultimate conclusions, the Industrial Relations Court constantly and consistently ignored, without justification, the Employment Act 2000 when computing awards in cases of unfair dismissal. Finally, on this point, Twea J. goes on to observe that Mtingwi, on the other hand, heavily relied on the interpretation of the Constitution in its interpretation of the Employment Act 2000. Continuing, Twea J. pointed out that the challenges posed by all these cases are well articulated in Mpaso, where Chipeta J. lamented that the approach favored by the Industrial Relations Court at the time “left a lot to be desired”. He, nevertheless, concludes that Maso entertains no doubt that the applicable law in contracts and contracts of employment before 2000 is the common law, as reflected in the Supreme Court’s decision in Chawani. Noting that this was as far as the authorities at the time extended, Twea J., in his attempt to shed light on the proper approach in assessing compensation in cases of unfair dismissal, pointed out that these cases could be distinguished. 12 To begin with, Twea J. acknowledged that the intent of the Employment Act as enacted in 2000 was to address the imbalance between the employer and employee then extant. Approving the trial Court’s position, Twea J. noted that the objective of compensation under the Employment Act is not to make the employee richer overnight or leave them poorer. Rather, that the court should not aim at punishing the employer, but strike a balance that would leave both the employer and employee satisfied that justice had been achieved. Of significance to the inquiry at Bar, Twea J. observed that in the protection of labor and employment rights, the Employment Act 2000 implicated a shift from the common law approach, largely based on contractual rights between employer and employee, to human rights and equity. At this point, Twea J. then turns to an extensive dialogue on the meaning of remuneration; to which | will return in due course. For the moment, the significance of Twea J.’s opinion is his covert acknowledgment of the apparent inconsistencies in the approaches courts have taken in assessing compensation in cases of unfair dismissal observed and alluded to earlier; as well as the existence of a dichotomy in the court’s approach, not only towards the enforcement of labor and employment rights generally, but more specifically, in the court’s approach to assessing compensation in cases of unfair dismissal. On the basis of these principles, calculating applicant’s compensation for unfair dismissal should rightly have started with a consideration of the minimum below which compensation should not have descended in s. 63 (5). Thereafter, the Court should have considered whether that award is just and equitable under s. 63 (4) and make an award higher than the minimum, if an additional award is warranted. It is to that scheme that I now turn. In exercising the powers granted in r. 5 A (2) of the Industrial Relations Court (Procedure) Rules, I set aside the Assistant Registrar’s order of assessment and substitute it with my own assessment on what I believe should be the correct measure of compensation under both s. 63 (5) and (4) to be just and equitable. Applicant’s remuneration at the time of his dismissal was MK295, 763.87. He was employed on July 26, 2010. He was dismissed on December 22, 2017. This means he was in respondents’ employment for 7 complete years. Under s. 63 (5), his compensation is not supposed to go below two weeks’ pay for every completed year of service. At MK295, 763.87, two weeks’ pay is MK147, 881.93. Multiplied by 7 completed years of service, this yields MK1, 035, 173.51. Now, the question becomes, is this just and equitable under s. 63 (4)? I have had occasion to read both the summary judgment delivered by the Court and the order on assessment of compensation by the Assistant Registrar. Beyond both orders merely pointing out that applicant was dismissed mainly for expressing views on social media and at a time when his health was failing, there is not much by way of weighing factors that may persuade me to depart from the scheme in s. 63 (5). However, it still behooves me that applicant must have undergone some excruciating period in the time leading to his dismissal and perhaps especially the period following his dismissal. It is only on that account that I feel the minimum award in s. 63 (5) would not represent a just and equitable award under s. 63 (4). This is because, the infraction for which he was subjected to disciplinary action, the authorship of a post on social media that respondents believed brought disrepute to the organization, is not one that can reasonably lead to a dismissal in LS the manner applicant was dismissed. A careful and objective consideration of the events leading to the disciplinary process as well as the actual content of the post, one can easily conclude that perhaps the best sanction against applicant could have been a disciplinary penalty of some sort. On the other hand, this is perhaps a quintessential case where, as both Twea J. advances in Nkhata and Chipeta J. posits in Khoswe, applicant may have contributed to his own dismissal by his ill-considered, ill-timed and perhaps childish ranting on social media. His only respite, in my considered opinion, is that respondents meted out a punishment that I consider to have been way too harsh and punitive, not in the least proportional to the level of infraction applicant was reasonably guilty of. On that account, I exercise my discretion and award applicant two months’ salary for every completed year of service as an award over and above the minimum threshold in s. 63 (5). At MK295, 763.87, two months’ pay is MK591, 527.74. For 7 completed years of service, this yields MK4, 140, 694.18. Added to the minimum awarded under s. 63 (5), the total award applicant gets is, therefore, MIK5, 175, 867.69. Respondents are ordered to pay applicant this sum within 10 days from the date of this order. I make no order for interest and; in accordance with s. 72 (1) of the Labor Relations Act, I make no order as to costs. Any party aggrieved by this ruling is at liberty to appeal to the High Court within 30 days. Such appeal, in compliance with fhe rules of practige, can only be on a point of law and not on a finding of fact. Made in Chambers this .../.....-..:.... Austin Msowoya : CHAIRPERSON 14