Bwemba v Sunbird Tourism PLC (MATTER NUMBER IRC 84 of 2023) [2024] MWIRC 10 (24 June 2024)

PALA THE REGISTRAR INDUSTRIAL RELATIONS COURT 2! JUN 2024 Qe REPUBLIC OF MALAWI PAID P. O. BOX 12, MZUZU IN THE INDUSTRIAL RELATIONS COURT MZUZU REGISTRY MATTER NUMBER IRC 84 OF 2023 HY BETWEEN: t gv OSWALD BWEMBA........sscsscccsvcee senccssencnventsenecssssecceneseuecenens saveeees APPLICANT AND SUNBIRD TOURISM PLC........csssssccssccsssseesccsnsaevecscseessceecensoessenees RESPONDENT CORAM: HIS HON. A. P. KAPASWICHE: DEPUTY CHAIRPERSON MR. C. MANDALA MR. W. MWAFULIRWA : COUNSEL FOR THE APPLICANT : COUNSEL FOR THE RESPONDENT MR. H. MHONE : COURT CLERK JUDGEMENT BACKGROUND The Applicant commenced this action against the Respondent praying for a declaration that he was unfairly dismissed and he claimed compensation for the unfair dismissal; compensation for unfair labour practices; severance allowance with interest; 2022 annual bonus with interest and notice pay. The Respondent denied liability for unfair dismissal and prayed that the matter herein be dismissed in its entirety. The parties failed to settle the dispute during pre-hearing conference and the matter was then referred to this Court for trial. This is my judgment having considered the evidence from the parties and the applicable law. THE EVIDENCE CASE FOR THE APPLICANT The case for the Applicant was made up of two witnesses. The Applicant testified as the first witness herein referred to as PW1. He adopted his witness statement and was cross-examined. The Applicant started his evidence by stating that he was employed by the Respondent as a Food & Beverage Control Clerk on the 17h of September 1991 and by the time of his dismissal on 26th January 2023, he had worked for 31 years. By the time of his dismissal, the Applicant was working as Head of Operations for the Respondent. lt was the evidence of the Applicant that On the 22.4 day of September, the Respondent confirmed the Applicant on a fixed term contract, consequently changing his contract from one for an unspecified term and the said contract 2 JUDGEMENT BACKGROUND The Applicant commenced this action against the Respondent praying for a declaration that he was unfairly dismissed and he claimed compensation for the unfair dismissal; compensation for unfair labour practices; severance allowance with interest; 2022 annual bonus with interest and notice pay. The Respondent denied liability for unfair dismissal and prayed that the matter herein be dismissed in its entirety. The parties failed to settle the disoute during pre-hearing conference and the matter was then referred to this Court for trial. This is my judgment having considered the evidence from the parties and the applicable law. THE EVIDENCE CASE FOR THE APPLICANT The case for the Applicant was made up of two witnesses. The Applicant testified as the first witness herein referred to as PW1. He adopted his witness statement and was cross-examined. The Applicant started his evidence by stating that he was employed by the Respondent as a Food & Beverage Control Clerk on the 17th of September 1991 and by the time of his dismissal on 26t January 2023, he had worked for 31 years. By the time of his dismissal, the Applicant was working as Head of Operations for the Respondent. lt was the evidence of the Applicant that On the 22.4 day of September, the Respondent confirmed the Applicant on a fixed term contract, consequently changing his contract from one for an unspecified term and the said contract 2 was attached as exhibit OB 1. This was despite the fact that he had worked for the Respondent for 30 complete years. The Respondent did not pay the Applicant any terminal benefits for the 30 complete years which he had worked for. The contributory pension was left to run its course as according to law. Since the termination of employment for the 30 years was done at the whim of the Respondent, the Respondent omitted to pay the Applicant severance allowance for the said period of 30 years. It was the prayer of the Applicant that the Respondent be ordered to pay the said severance allowance with interest. The Applicant proceeded to testify on the circumstances that led to his dismissal. lt was the evidence of the Applicant that on 15't of December 2022, he, through WhatsApp, came across information about the suspension of a process to hire a Chief Executive Officer for the Respondent. He shared the said information with a fellow employee, Mrs Patricia Kambalame Cheza by WhaitsApp. After that sharing, on 12th of January 2023 the Division Manager for People and Culture of the Respondent, Mr Edward Chunga, launched an investigation by requesting the Applicant to write a response on the sharing of the said piece of information. The request was made by email and the said communication was exhibited as exhibit OB 2. The Respondent proceeded to call the Applicant for a disciplinary hearing whose panel comprised the Division Manager, People and Culture, Mr. Edward Chunga, among others. It was stated that the Division Manager for People and Culture, Mr. Edward Chunga played crucial roles of an investigator and a member of the disciplinary committee. At the disciplinary hearing, the Applicant accepted forwarding the said WhatsApp message but denied that by that action he had breached any code of confidentiality or committed any of the offences charged. According to the Applicant, the information did not come to him in the course of his duties, it was not sent to him from the source or the target, hence by the time it came to him, 3 it had already lost confidentiality. Moreover, by the time it reached Applicant, the message was common discussion including on the Managers' Forum of the Respondent. However, the Respondent proceeded to summarily dismiss the Applicant on the basis of the said charge. The Applicant was aggrieved with the dismissal and decided to appeal against the said dismissal. The Applicant proceeded to make a request to be furnished with the minutes of the disciplinary hearing. However, the Chairperson for People and Culture Committee of the Board who had chaired the disciplinary panel Mr Gladson Kuyeri, refused to furnish the minutes under the pretext that the Applicant needed to have taken his own minutes as the Respondent's conditions of service prohibits the sharing of minutes of such hearings to employees involved. He exhibited his letter requesting the minutes and refusal to share the same attached as exhibits OB 3 and OB 4 respectively. Despite the refusal to share the minutes, the Applicant proceeded to appeal the decision of the Disciplinary Committee. The Applicant stated that the appeal was heavily compromised as until now he does not know what is contained in the minutes of the Disciplinary Committee. He stated that the refusal of the Respondent fo furnish him with the minutes of the disciplinary hearing prejudiced his preparation for the hearing as it is a crucial reference point for trial. The Applicant proceeded to testify with respect to payment of bonus. It was stated that the Respondent has a bonus policy which is calculated based on achievement of profits for the year and results of performance appraisal for every individual employee. For the year ending 2022, the Respondent paid bonus to its members of staff. It was the evidence of the Applicant that he scored 92% in his appraisal and qualified for bonus. However, the Respondent for reasons undisclosed to him, has withheld information related to the calculation of the bonus for the year and has not paid the actual bonus money. 4 It was the belief of the Applicant that the Respondent's failure to pay the bonus to him, when he qualified like all deserving employees, is discriminatory. The Applicant proceeded to testify that in dismissing him, the Respondent used Conditions of Service which are specifically for permanent employees of the organisation. The Applicant had ceased to be a permanent employee of the organisation when the Respondent terminated his contract for an unspecified period and reemployed him on a contract for a specified period. The Applicant contended that the reasons for his dismissal were unsatisfactory and the whole dismissal was unprocedural and biased. He stated that he finds the refusal to share him the minutes of the disciplinary hearing unprofessional and an unfair labour practice prejudicial to the administration of justice. Furthermore, the purported change of his employment contract without payment of severance pay is an unfair labour practice as is the delay to pay the severance allowance. The Applicant further contended that the withholding of bonus money is discriminatory and an act done in bad faith. He stated that he was subjected to a disciplinary procedure specific for permanent employees when he was in employment under a contract for a specified period. The remedies sought by the Applicant were payment of severance pay with interest calculated up to the day of judgment, payment of salary in lieu of notice following the change of employment contract from unspecified period to one of specified period, payment of the bonus earned up to the end of the year 2022 calculated with interest up to the day of judgment and payment of compensation for unfair dismissal. With regard to the compensation for unfair dismissal, the Applicant stated that he worked for the Respondent for 31 years. At the time of his dismissal my remuneration was MK13, 363, 610. 00 per month. The Respondent terminated his contract after he had worked for 30 years and instead placed him on a 3 -year contract without paying his terminal benefits. He stated that his position during the termination of employment was Head of Operations, quite a high position for which another job cannot be easily found in the hotel industry such that since then there has not been any advert close to that position, He stated that he has made efforts to mitigate his loss, including starting a consultancy firm for which progress is very slow, The Applicant emphasized that as at dismissal, he had successfully earned a bonus which the Respondent has refused to pay me. The Applicant proceeded to provide the calculations with respect to the prayers made before this Court as follows; Severance allowance Years worked: 30 Monthly Remuneration at dismissal (Notice pay) MK 13, 405, 277. 00 2 weeks salary x 5 years MK 33, 513, 192, 50 3 weeks salary x 5 years MK 50, 269, 788. 75 1 month salary x 20 years MK268, 105, 540. 00 Total MK365, 293, 798. 25 interest for Feb 2022 to Jan 2023 at 25% MK164, 214, 643.25 interest for Feb 2023 to Aug 2023 at 25% MK 95, 791, 875, 23 Total MK625, 300, 316. 73 Interest 25% calculated from 7 days after dismissall..... Bonus MK9,500, 000. 00 Compensation for unfair dismissal Years worked 3] Statutory compensation | month salary per year worked One month salary MK13, 405, 277. 00 TOTAL 31 X 13, 405,277. OO= MK415,563,587. 00 Enhancement due to employer's conduct: 3 months’ salary per year worked = MK 1, 246, 690, 761. 00 In cross examination, the Applicant told this Court that the conditions of service on which he was charged on in his disciplinary hearing were not applicable to him. He confirmed further that he is complaining that the Respondent withheld his pension money as well as severance money. He contends that he was unfairly dismissed. When referred to exhibit OB 5, the Applicant stated that the conditions of service under 1.2 states that it applies to employees on permanent employment. He confirmed that under the definition section on paragraph (n), the conditions of service as amended are applicable and the amendment was effected in 2018. When referred to the offer of contract for the position of Head of Operations, the Applicant confirmed to have signed the offer and further confirmed that paragraph 7 of the offer provided that terms and conditions of service applicable prior to the signing of the contract will also apply. He stated that he is not sure as to when the conditions of service for the Respondent got revised and took effect. In relation to payment of bonus, the Applicant confirmed that the policy on payment of bonus provides that if an employee works for less than 6 months then he or she is not eligible for bonus consideration. He confirmed further that the bonus scheme period is from 1s! January to 31s! December and that he was confirmed in employment on 1s! August 2022. The offer letter came in February 2022 while confirmation of appointment came in August 2022. The Applicant went further to confirm that he is not aware as to how much profit was made by the Respondent in the year in question and further that he did not attach the results of his performance appraisal for the year in question. 7 The Applicant went further to confirm that he worked for the Respondent for 31 years and that his remuneration was MK13,363,610.00 per month. He stated that his severance pay is amounting to MK359,794,762.00 and plus 25% interest the total severance pay comes to MK449,743,452.00. The Applicant further told this Court that he also added interest for 6 months on the severance pay making it a total of MK494,717,797.00. He confirmed that the total of all his claims is in the excess of 1 billion kwacha, The Applicant went further to confirm that when calculating severance allowance there are certain payments that do not count unlike when calculating compensation for unfair dismissal and he admitted that his calculations were mistaken as they did not take into account. this consideration. He further confirmed that he can only be eniitled to severance allowance if it is proved that he was unfairly dismissed. The Applicant went further to state that he is not challenging the restructuring that the Respondent undertook but only that his issue was to do with non-payment of severance allowance. On the issue of the remuneration used in calculating his compensation for unfair dismissal, the Applicant stated that he used the figures indicated in his IRC Form 1 which he totalled and averaged monthly to come up with the figure of remuneration used in the computation of the compensation. The Applicant went further to confirm that prior to the disciplinary hearing that led to his dismissal, there was another disciplinary hearing that the Applicant went through and it is true that the he was found guilty and was given a serious warning on those charges. He admitted to have forwarded a letter dated 13h December 2022 as Head of Operations but stated that the said letter did not have the potential of bringing the organisation into disrepute. He further confirmed that the failure of the Respondent to give him the minutes of the disciplinary hearing for purposes of his appeal prejudiced his appeal. In re-examination, the Applicant told this Court that by December 2022 there were different conditions of service applicable and not the ones that came into effect in January 2023. On the payment of bonus, the Applicant stated that his claim is on the basis that he has always been in employment of the Respondent despite the change in the contract status from permanent to contract of specified time. The second witness was Mr. Ferdinand Tsinambuto herein referred to as PW2, He told this Court that he has known the Applicant in this matter for a fairly long time as he worked together with the Applicant for the Respondent. PW2 testified that sometime towards the end of the year 2022, he received information by social media in form of a letter from the Controller of Statutory Corporations and addressed to the chairperson of the board of the Respondent. The said letter was exhibited as FT 1. Out of curiosity, as a former employee of the Respondent, PW2 sent the letier to several employees of the Respondent seeking confirmation and he later sent the letter to the Applicant herein who never gave feedback on the inquiry. It was stated that by the time he was sending the letter to the Applicant, the contents of the letter were already in the public domain and highly circulated within Sunbird Hotels PLC. CASE FOR THE RESPONDENT The Respondent's case was made up of two witnesses. The first witness herein referred to as RW1 was Edward Chunga who works as Head of Corporate Services for the Respondent. He adopted his witness statement as his evidence in chief. The evidence of RW1 was that the Applicant was initially appointed by the Respondent as Food & Beverages Controls Clerk on the 17!» September 1991 and during the course of his employment, he rose through the ranks and his last position which he assumed on 2"4 February 2022 was that of Head of Operations. 9 The initial appointment letter and the appointment letier to the last position were exhibited as exhibits EC 1 and EC 2 respectively, RW1 proceeded to testify that in October 2022, the Applicant was charged with the responsibility of submitting a catering bid for Regional 5 games on behalf of the Respondent whose value was around MK1.5billion. The Applicant missed the deadline of submission of the bid which would result in a potential loss of revenue. The Applicant accepted and took full responsibility for the failure to meet the deadline for the submission of this bid through his report tendered as exhibit EC 3. The Applicant was subsequently called to a disciplinary hearing which was held on the 14'h October 2022 where he pleaded guilty to the charges of Negligence and Carelessness. The notice of the said hearing was exhibited as exhibit EC 4. The disciplinary hearing found the Applicant guilty of the charges on his own admission and he was issued a serious warning on 20! October 2022. The serious warning letter was exhibited as exhibit EC 5. . It was the further evidence of RW1 that on the 11th day of January 2023, he received an email from the Chief Executive Officer (Mr. Yusuf Olera) regarding a letter from Government which essentially was advising the Board Chairman to suspend the recruitment process pf the new CEO due to alleged concerns from some quarters within the Company. The CEO indicated that he had established that the source of the letter was the Applicant. The email in question was exhibited as exhibit EC 6. Subsequent to the email, RW1 wrote the Applicant through an email dated 12th January 2023 seeking his comments on the issues raised by the CEO regarding the letter from Government and the Applicant duly replied and the response was tendered as exhibit EC 7. The Applicant was subsequently invited to a disciplinary hearing which was held on the 26'h January 2023 and the invitation was exhibited as exhibit EC 8. The disciplinary panel found the Applicant guilty of the charges he was answering and was subsequently dismissed summarily. The summary dismissal letter was exhibited as exhibit EC 9. 10 The Applicant appealed against his dismissal but the appellate panel dismissed the appeal in question for lack of merit, It was stated that according to the Company's conditions of service, a written warning for serious offences, like the ones which the Applicant was charged with in October 2022 is valid for 12 months. Consequently, at the time when the Applicant was also answering other serious offences in January 2023, the serious waring issued in October 2022 was still valid and this was another aggravating factor. The company's conditions of service were exhibited as exhibit EC 14. It was the contention of RW1 that the Applicant was fairly dismissed as all procedures were followed and at the time of the dismissal, he was serving a serious warning hence the prayer of the Respondent was that the Applicant's claim be dismissed. In cross examination, RW1 told this Court that he is aware that the conditions of service do not provide for serious warning as punishment. RW1 also admitted that he has not explained in his evidence that the MK1.5 billion tender that gave rise to the first disciplinary hearing of the Applicant was cancelled. He agreed that in the present case the Respondent did not suffer loss as the tender was re- advertised and won by the Respondent and the CEO congratulated the Applicant for a job well done in executing the tender for catering services with respect to the regional 5 games. RW1 stated that despite this development, the. Respondent still sustained the serious warning against the Applicant due to his initial failure to submit the bid in good time. RW1 went further to confirm that he is the one who carried out the investigations against the Applicant and he is also the one who drew up the charges against the Applicant and he also satin the disciplinary committee and this is the hearing that led to the dismissal of the Applicant. He confirmed that he was too involved in the matter by virtue of his position. When refereed to the letter tendered as exhibit EC 6 and GK 3, RW1 stated that the said exhibit is a letter written by the 14 Controller of Statutory Corporations and the originator of the document was Peter Simbani and not the Applicant. He stated that the Applicant was the one who circulated the letter. RW1 stated further that he is not aware that Mr. Tsinambuto was the one who circulated the letter. RW1 confirmed that the Applicant was found guilty of the charges and was summarily dismissed. He stated that the charges against the Applicant are contained in exhibit EC 8. He confirmed that for the 1st charge, the Applicant was not supposed to be dismissed as the said charge does not carry the punishment of dismissal. RW1 stated further in relation to the second charge that it is a misconduct one. He confirmed that a complete charge will have a charging provision and the particulars of the charge. He stated that he is not aware whether it is important to have the charge and its particulars stated at the time of sending the invitation for a disciplinary hearing. He stated further that his understanding is that the particulars of the charge can be given in the disciplinary hearing. It was the further evidence of RW1 that charge 2 emanates from charge 1 as the conduct is the same. He conceded that the second and third charges are general charges. RW1 also confirmed that he did not attach the minutes of fhe disciplinary hearing as the conditions of service do not provide for sharing of minutes for disciplinary hearing. He further confirmed that the Applicant was initially employed in 1991 and his contract was terminated on 26! January 2023 hence he worked for 31 years. In re-examination, RW1 stated that in October 2022, there was a tender that had a deadline to submit for Regional 5 games and the Applicant missed the deadline and this led to a potential loss of MK1.5 billion by the Respondent. Luckly, the tender was re-advertised and the Respondent submitted their bid. He further confirmed that he was too involved in the case because of his position as it 12 required him fo do investigations, place charges and sit in the disciplinary hearing. It was further stated that the Applicant's conduct of circulating the letter was a serious misconduct as he shared if to juniors. The second witness for the Respondent was Gladson Kuyeri who is one of the Board of Directors and also Director responsible for human resources for the Respondent herein referred to as RW2. The evidence of RW2 was that due to the Covid-19 pandemic, the Respondent underwent a restructuring process and the result of that process was that the Applicant's position was switched to fixed term contract. Clause 7 of the letter of offer of the new contract provided that all the terms and conditions of service applicable before signing of the offer letter will remain unchanged. The Applicant signed the offer and accepted these conditions on the 4h day of February 2022, RW2 proceeded to testify that barely some few months into the fixed term contract, the Applicant was disciplined for an offence of gross negligence which caused the Respondent to lose business worth about MK1.5billion. The Applicant was called for a disciplinary hearing and he admitted the misconduct. The Respondent issued a serious warning to the Applicant on the 20th day of October 2022 and the letter of the said warning was exhibited as exhibit GK-2, RW2 proceeded to narrate the circumstances surrounding the second disciplinary hearing of the Applicant. It was the evidence of the Applicant that the Respondent had advertised for the position of Chief Executive Officer and the Applicant had expressed interest for the position but was not successful. Trouble begun when the Respondent appointed another person, other than the Applicant for the position of the CEO. It was observed that there was a letter purportedly from Government circulating around social media regarding the recruitment process of the CEO. A copy of the said letter was exhibited as exhibit 13 GK3. The letter was addressed to the Board Chairperson of the Respondent advising him that the recruitment process should be suspended allegedly on the basis that there are some quarters within the company who are not satisfied with the process. The Applicant admitted to have forwarded the letter to a few other people and the evidence of the said admission was exhibited as exhibit GK-4, RW2 proceeded to testify that the conduct of the Applicant was uncalled for and contrary to the conditions of service and consequently he was called for a disciplinary hearing. The Applicant was properly charged and the hearing followed all the procedures for fair hearing and the report of the said hearing was tendered as exhibit GK-5. On the issue of the Applicant not being given the minutes of the hearing to prepare for his appeal, RW2 stated that he wrote the Applicant informing him that the conditions of service did not provide for the said request. The minutes of the appeal were tendered as exhibit GK-7. It was the contention of RW1 that the Applicant was duly accorded the right to be heard. RW 1 went further to state that the conditions of service used against the Applicant were applicable to the Applicant as Clause 1.2 of the said conditions of service provided that the conditions apply to both permanent and contracted staff of the Respondent. A copy of the conditions of service in question was exhibited as exhibit GK-8. With regard to the payment of bonus, RW2 told this Court that Clause 3.0 of the Respondent's Performance Related Incentive Scheme under the head of eligibility states that someone who left the company on the basis of dismissal is not eligible to receive a bonus. The said policy was exhibited as exhibit GK-9, lt was the further evidence of RW2 that for purposes of his claim for unfair dismissal he is using 31 years for calculating his compensation for unfair dismissal. The evidence of the Applicant is that the claim for unfair dismissal is emanating from 14 the termination of the fixed contract that run from February 2022 and there is no claim for unfair dismissal for the other years the Applicant was with the Respondent. RW2 stated that in the very unlikely event that the Applicant succeeds in his claim for unfair dismissal, the compensation can only be calculated for the period that the Applicant worked under the fixed term contract which is less than a year. It was, therefore, the contention of the Respondent that the calculations on compensation for unfair dismissal as well as the severance pay are faulty. It was further stated that the Applicant has not attached his pay-slip fo prove that his salary was MK13, 363,610.00. RW2 proceeded to state that the definition wage for purposes of severance pay is different from unfair dismissal compensation calculation but the Applicant has used the same wage in both calculations. RW1 further questioned the basis of the 25% interest rate used in the calculations. RW2 proceeded to testify that from the documents in custody of the Respondent, the entitlements of the Applicant when his contract was changed from permanent to fixed term were gratuity, children school fees, medical, fuel, handset plus airtime and residential internet. RW2 exhibited the Applicant's pay- slip which was marked as exhibit GK-10. The witness emphasized that the Respondent's conditions of service were updated in 2020 and under Clause 2 of the updated conditions they apply to both permanent and temporary employees and the said conditions were exhibited as exhibit GK-8. The prayer from RW2 was that the Applicant's claim be dismissed in toto. In cross-examination, RW2 confirmed that the Applicant was employed in 1991 and was dismissed in January 2023 and that he did work for 31 years. RW2 stated that after the change in the status of employment of the Applicant from permanent to a fixed term renewable contract, the Respondent treated the 15 Applicant's employment as continuous service. He stated that the Respondent did not issue a letter terminating the Applicant's employment after the restructuring process and as a result the Applicant was not paid severance allowance at that point. He confirmed that in this matter, the Applicant should be treated as if he was in continuous employment for 31 years. RW2 proceeded to confirm that the Applicant underwent a disciplinary hearing where he was given a final written warning and he stated that he is not aware if the conditions of service do not provide for a final written warning. RW2 confirmed that what happened to the Applicant on the first disciplinary hearing is not what is provided for in the conditions of service. He further confirmed that the initial bid that was the subject of the first disciplinary hearing was cancelled and the Applicant re-submitted a bid that was successful and the Respondent gained from the said bid. RW2 confirmed that he is the one who wrote the dismissal letter and he stated that the letter that was circulated by the Applicant leading to his dismissal was considered sensitive by the Respondent because it was addressed to the Board Chair and not the public, He stated that the letter was confidential though it was not written that it was confidential but he confirmed that it was copied to other government agencies. He conceded that the letter was circulating in social media. The witness further stated that the Applicant was charged under clause 7(m) of the conditions of service and that this clause does not provide the sanction of summary dismissal. He confirmed that the Applicant was not guilty of persistent breaches of the conditions of service and it was improper to dismiss him on the basis of the first charge coming under clause 7(m). On the second charge, RW2 stated that the drafters of the said charge envisaged it to cater for misconduct that has not been directly covered by the Conditions of Service. The conduct covered in the second charge is still the circulation of the 16 letter and it is the same conduct that is used as a basis on all the three charges levelled against the Applicant. RW2 further confirmed that the investigation in the within matter were done by RW1, and that the same RW1 drew the charges and was a panelist in the disciplinary hearing. RW2 also confirmed that it is an unfair labour practice to withhold minutes of a disciplinary hearing to a party. In re-examination, RW2 stated that despite the fact that the Applicant was not given the minutes of his disciplinary hearing for the purposes of his appeal, he was able to present his appeal properly. He went on to say that on charging the Applicant with three counts, the conduct of the Applicant violated all the three counts and this is why he was charged with the three counts as it is possible that one conduct can lead to a number of charges. He further confirmed that the nature of the letter subject to the charge made it qualify as confidential information and that confidential information does not cease to be confidential because it is in the public domain. The above represents a summary of the material evidence that came before this Court in the present dispute. ISSUES FOR DETERMINATION The only issue to be determined in the present case is as to whether the Applicant was unfairly dismissed to warrant this Court to award him compensation for unfair dismissal and the other remedies as pleaded. 17 THE LAW UNFAIR DISMISSAL CONSTITUTION OF THE REPUBLIC OF MALAWI Section 31: Every person shall have the right to fair and safe labour practices Section 43: ‘Every person shall have the right to: a). Lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and b). Be furnished with reasons in writing, for administrative actions where his or her rights, freedoms, legitimate expectations or interests are affected. EMPLOYMENT ACT The law on unfair dismissal is provided for under the Employment Act 2000. The relevant law is provided under Sections 58, 57 and 61. Section 58 of the Employment Act, 2000 provides that ‘A dismissal is unfair if it is not in conformity with Section 57. Section 57 of the Employment Act provides as follows: 18 “(1) (2) 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 requirements of the undertaking. The employment of an employee shall not be terminated for reasons connected with his capacity or conduct before the employee is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity. Section 61 of the Employment Act provides as follows; “(1) (2) In any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair; 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 alll circumstances of the case he acted with justice and equity in dismissing the employee.” COMPENSATION FOR UNFAIR DISMISSAL The applicable law on awards of compensation is provided for under Section 63 of the Employment Act. The relevant parts of the Section provide as follows; 63 (1) (c) 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— 19 (c) an award of compensation as specified in subsection (4). 63(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 attrioutable 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; (lb) 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). ANALYSIS OF THE LAW AND EVIDENCE WHETHER THE APPLICANT WAS UNFAIRLY DISMISSED To begin with; this Court would like to express appreciation to Counsel for both the Applicant and the Respondent for their time in making written submissions that have helped this Court to have a proper understanding of the matter at hand. | 20 have taken time to carefully consider the submissions from the parties and they have informed my determination in the within matter, The law is clear that in an unfair dismissal claim; the evidential burden is on the employer to prove that the dismissal of an employee was fair, For an employer to discharge that burden of proving that the dismissal was fair, it must be shown that he complied with Section 57 and 61 of the Employment Act. The employer has a statutory duty to provide the reason for the dismissal in question and failure to do so creates a conclusive presumption that the dismissal was unfair. Besides giving the reason, the employer must also show that the reason is ‘valid’ and is connected with the capacity or conduct of the employee or based on the ‘operational requirements of the undertaking, In cases where the reason for terminating the employment is connected with the employee's capacity or conduct, Section 57 (2) also requires the employer to prove that he did not terminate the employment before giving the employee an opportunity to defend himself against the alleged incapacity or misconduct. Again, to prove the fairness of the dismissal, the employer is required to show that in all circumstances of the case he acted with justice and equity (with emphasis) in dismissing the employee as provided for under Section 61(2) of the Employment Act. The law, therefore, requires that in terminating a contract of employment on the basis of capacity and conduct of an employee there must exist a valid reason for the said dismissal and that there must be procedural fairness in hearing the side of the employee. With regard to the validity of the reason for dismissal, the Court, in the case of Stuart Hill v. Department of Juvenile Justice (2000) NSWIR Comm, 128, para. 61, stated as follows: 21 “The principles to apply when allegations of misconduct are considered ... are now well settled by the relevant authorities, These authorities make it pellucidity clear that it is insufficient for an employer to make allegations of | misconduct; the employer must prove such misconduct. The right of an employer to dismiss an employee is qualified by the employee, inter alia, having committed an act of misconduct; thus, to be able to rely upon the right ... the employer must not only allege misconduct, but must prove it.” In Ridge v. Baldwin (1964) AC 40, Lord Morris held as follows with regard to the right to be heard or procedural fairness generally at P.p 113-114. “The essential requirements of natural justice at least include that before someone is condemned, he is fo have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges allegations ... which he has to meet." It has been said that by requiring that the employee be ‘provided an opportunity to defend himself against the allegations made against him before the employer terminates the employment, Section 57 (2) must be read as implying that he ‘should be given reasonable notice of the charge against him and should receive adequate opportunity to answer to it’ See Majawa v. Auction Holdings Lid IRC Matter No. 25 of 2001. Whether a person has been accorded procedural fairness depends on whether he had prior notice of the charges against him, Additionally; the opportunity to be heard is of no use unless it carries with it the right on the part of the conferee to know in advance any adverse information against him on which the decision maker intends to rely. This is because of the fact that he cannot possibly prepare his defence or defend himself without that information. Failure by the decision maker to give that prior notice is tantamount to denial of procedural fairness. An employee cannot avail himself of Section 57 (2) and defend himself against the allegations made against him unless he knows the 22 allegations before he is ‘heard’ See: Kumwenda v. Paralegal Advisory Service and Youth Watch Society, IRC Matter No. 25 of 2000. Apart from requiring disclosure of the allegations against the employee, Section 57 (2) implies that the employer should provide any evidence he may have in support of them: as Potani, J. said in Chakhaza v. Portland Cement Ltd. (2008) MLLR 118 (HC), quoting Kanda v. Government of Malaya (1962) AC 322 at 337: “If the right to be heard is to be a real thing which is worth anything, it must carry with it the right in fhe accused man to know what evidence has been given and what statements have been made affecting him. He must be given a fair opportunity to correct or contradict them.” In The State V. Council of University of Malawi ex parte Msukumwa Misc. Civil Cause No. 50 of 2006 the High Court stated as follows: “If one is to answer any charge, particulars of the same should be given to afford the accused a clear outline of the nature of the charge so that he is able to ably defend himself or herself. | say to ably defend himself to mean to equip oneself with the necessary ammunition. It is not enough to give someone the right to be heard or to defend himself if he or she was deprived of adequate notice to ably defend oneself or the charge was so general that the accused fails to make a meaningful defence. One should not say | understand | have a charge; they will make it clear to me during hearing time. Before the time of hearing the accused must be clear in his mind about the nature of the charge. Just to say come and answer charges of cheating and no more is so lacking and inadequate since it is devoid of particulars. One has to show how the cheating took place, who saw him cheating and when it happened, Only in such 23 circumstances can one know to defend himself or how to prepare a defence and decide which witnesses to call” As | stated earlier on, the legal burden of proving that a dismissal was fair is in the hands of the employer as provided for under Section 61 (1) of the Employment Act. The proof is in two-fold, there must be proof that there was a valid reason for terminating the employment and further the employer must have given the employee the right to be heard before terminating the employment. Hearing the evidence before this Court, it is clear that the Respondent has failed to discharge their burden of proving that the dismissal of the Applicant was fair. To begin with, the issue leading to the dismissal of the Applicant is concerning allegations of circulation of a letter from the Controller of Statutory Corporations in which the said controller was advising the Board Chairman to put on hold the process of recruiting the Chief Executive Officer owing to purported concerns from a section of some concerned staff of the Respondent. The Respondent learnt that the Applicant was responsible for the circulation/ sharing of the said letter amongst junior staff. Subsequently, the Applicant was invited to a disciplinary hearing through a notice dated 18th January 2023. The notice of disciplinary hearing contained three charges namely breach of Code of Conduct contrary to Clause 7 (m) of the Company's Conditions of Service: Misconduct, whether in the course of duty or not, if inconsistent with the fulfilment of these conditions contrary to Clause 13.2 (a) of the Conditions of Service and the charge of any other actions which, in the opinion of Management may cause disturbance of Company property or operations or which may bring the name of the Company into disrepute contrary to Clause 13.2 (aa) of the Conditions of service. The result of this disciplinary hearing is what led to the summary dismissal of the Applicant. 24 | will begin by dealing with the issue raised by the Applicant that the Terms and Conditions of Service which were used in charging him and subsequently dismissing him were not applicable to him as an employee on a fixed term contract as they only applied to employees on permanent contracts. This Court finds that the Applicant's contention herein has no basis. It is in evidence that when the Applicants contract status was being changed in 2022, the new agreement exhibited as exhibit GK-1 by RW2 provided under Clause 7 that all the terms and conditions of service applicable before the signing of this current offer letter will remain unchanged. This meant that the conditions of services previously used for permanent employees would also apply to the Applicant. The Conditions of Service in question were updated in 2020 as well as later in 2023 before the Applicant was dismissed and both versions had clause 1.2 which was in the following terms: Application of Conditions of Service These Conditions, except where if is specifically otherwise provided, apply to all permanent and contracted employees of Sunbird Tourism plc (the Company) and its Divisions and/or Subsidiaries. lt is, therefore, incorrect to assert that the terms and conditions of service that were used did not apply to employees who were on fixed contracts. Before | get into the analysis as to whether the reasons for dismissal were valid in line with the Respondent's Terms and Conditions of Service, this Court would like to begin by looking at the procedural aspects to see if the Applicant was accorded the right to be heard or put simply, if there was procedural fairness in the conduct of the disciplinary hearing. One of the issues raised by the Applicant 25 on the procedural fairness which this Court agrees with is the roles taken by RW1 namely Mr. Edward Chunga on the issue at hand. It is in evidence that Mr. Chunga took a very active role throughout all the processes leading to the dismissal of the Applicant. It is Mr. Chunga who investigated the allegations levelled against the Applicant; it is the same Mr. Chunga who then proceeded to draft the charges against the Applicant and issued the notice of the disciplinary hearing and the same Mr. Chunga was part of the disciplinary hearing panel that heard and decided the fate of the Applicant. This is a grave breach of the rules of natural justice as the said Mr. Chunga acted as an investigator, a prosecutor and a Judge in the within matter, The said Mr. Chunga should have known that he overstretched his mandate as far as the rules of natural justice in conducting disciplinary hearings are concerned. In Khoswe V National Bank of Malawi (2008) MLLR, 201; the court said on bias: “It is also a general principle of law that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but must be seen to be done, that if a reasonable observer with full knowledge of the facts would conclude that the hearing might not be impartial, that is enough. Even if the decision-maker has not been biased at all, a decision may still be quashed if they have any professional or personal interest in the issues, because justice must be seen to be done.” The Court, in the case of Chiyembekezo. D, Mnyimbiri v Carlsberg Malawi Limited, Matter Number I. R. C 14 OF 2012, stated as follows with respect to the rule against bias in administrative actions; 26 "All this goes to the root of proving that the said Mr. Wankhama was indeed a panelist of the Applicant's disciplinary committee. The same Mr. Wankhama also investigated the issues surrounding the Applicant's offences as per the Disciplinary Report Statement of the accused...ihe presence of Mr. Wankhama on the Disciplinary Panel made the panel impartial.” Having considered the role played by Mr. Edward Chunga in the disciplinary proceedings against the Applicant herein, it is my considered view that the disciplinary hearing against the Applicant was faulty as the Applicant was not heard by an impartial tribunal. Another element that demonstrates that the Respondent breached the demands of procedural fairness in conducting a disciplinary hearing against the Respondent is the fact that the Respondent refused to share with the Applicant the minutes of the disciplinary hearing when the Applicant wanted to use the same to aid his appeal of the disciplinary committee's decision of summary dismissal. The right to appeal is duly provided for in the Respondent's Conditions of Service and it is an opportunity to have a different panel reconsider the decision of the initial disciplinary hearing panel. One fundamental element of the right to be heard is the disclosure of all the necessary information that an accused needs to prepare for his case {see. Chakhaza v. Portland Cement and The State v. Council of the University of Malawi (supra)} The Applicant duly requested the minuets of the disciplinary hearing to aid him in preparing for his appeal and the Chairperson of the said disciplinary hearing, who also happens to be a Board member for the Respondent's Board and a seasoned governance expert had the courage to write a letter refusing the request on the 27 basis that the Company's Conditions of Service do not provide for sharing of minutes with an accused person. This is a grave procedural error on the part of the Respondent as if is a fundamental breach of the right to be heard. In actual fact, the Conditions of Service of the Respondent have no provision that prohibits sharing of minutes to an accused person and one cannot refuse to share the minutes on the basis that the Conditions of Service do not provide for the same. Even if the Conditions of Service of the Respondent would have provided for prohibition of sharing of information regarding an accused person's case in the process of disciplinary hearing, such prohibition should have been unlawful for breach of the rules of natural justice. The other area demonstrating procedural unfairness in the conduct of the disciplinary hearing was the way the charges against the Applicant were drafted. As was indicated earlier on all the three charges levelled against the Applicant were based on his circulation of a letter from the Controller of Statutory Corporations to the Respondent's Board Chair. In accordance with the law, the requirement is that a proper charge should contain the actual charge and the particulars of a charge so as to give an accused person proper details of his charges. A charging officer is not allowed to give vague details in the charge and hope that they will make the charge clear to an accused during the actual disciplinary hearing. This is what exactly RW1 told this Court in his evidence during the hearing of the matter that he felt that he would make the charges clear to the Applicant during the disciplinary hearing. This kind of thinking was admonished by the Court in the case of The State V. Council of University of Malawi ex parte Msukumwa (Supra). The first charge was breach of conduct contrary to Clause 7(m) of the Company's Conditions of Service. Clause 7(m) of the Conditions of Service provides as follows; 28 “any information received relating to clients’ or Company's operations should be treated confidentially and not divulged to any third parties other than those duly authorized to receive such information by Management" The second charge is based Clause 13.2 (a) and the said clause Provides as follows; “The following incidents may result in the summary dismissal of an employee, misconduct whether in the course of duty or not, if inconsistent with the fulfillment of these conditions” The third charge was a charge based on Clause 13.2 (aa) of the Conditions of service and it provides as follows; “Any other actions which, in the opinion of Management may cause disturbance of Company property or operations or which may bring the name of the Company into disrepute” The Respondent was required by law to give full particulars against each and every count levelled against the Applicant so as to make it clearer to the Applicant and not just to take the definitions of the charges from the Terms and Conditions of Service and throw them in the notice of disciplinary hearing. It is the view of this Court that the charges herein were defective for lack of better particulars to enable the Applicant prepare for the hearing. In my appreciation of the evidence, it is clear that the Respondent failed to adhere to the rules of natural justice in the way they conducted the disciplinary hearing for the reasons already highlighted above. In the case of General Medical Council v. Spackman (1943) AC 627 at 644-45, the Court stated as follows 29 on the effects of failure to adhere to the rules of natural justice during a disciplinary hearing; “If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.” As per the quotation above, the decision of the disciplinary committee summarily dismissing the Applicant is no decision at all as there was a grave failure on the part of the Respondent to adhere to principles of natural justice. Having dealt with the issue of procedural fairness, this Court proceeds to look into the question as to whether the Respondent had valid reasons to dismiss the Applicant. The evidence before me indicates that the only reason that led to the dismissal of the Applicant is the fact that he shared a letter from the Controller of Statutory Corporations addressed to the Board Chairman of the Respondent over issues of recruitment of the Chief Executive Officer for the Respondent. This is the conduct that led to the three charges already highlighted against the Applicant. The Applicant does not contest that he was responsible for sharing the letter but he only contends that he was not the source of the letter and further that in his view the letter was not confidential as it was not written confidential and it was in the public domain. A reading of Clause 7(m) of the Respondent's Terms and Conditions of Service makes it clearly that the conduct of the Applicant was a breach of the said provision. | have already highlighted the contents of the clause in question but for the sake of emphasis | see no harm in repeating it. The clause is coined in the following terms; “any information received relating to clients’ or Company's operations should be treated confidentially and not divulged to any third parties other 30 than those duly authorized to receive such information by Management" The letter subject to the disciplinary hearing contained information relating to Company's operations as it was about an issue to do with the recruitment of the Company's Chief Executive Officer and the demands by Clause 7(m) are that the Applicant should not have divulged such information to third parties other than those duly authorized to receive such information by Management. The intended recipient of the letter was the Board Chairperson of the Respondent's Company and by virtue of the seniority of the Applicant in the Respondent's Company, the appropriate action for him when he got hold of the letter was to liaise with the Board Chairperson or the outgoing Chief Executive Officer as the evidence before me indicates that the Applicant was almost like the second in command for the Respondent's Company. Despite the fact that the conduct of the Applicant was inappropriate, it is the considered view of this Court that the Respondent did not act with justice and equity in choosing the sanction of dismissal over all other sanctions. This fact was also conceded by the Respondent's witnesses that the conduct did not warrant a sanction of summary dismissal. The evidence from the Respondent witnesses was that the sanction of dismissal was necessary as the Applicant's misconduct was aggravated by the fact that at the time of the said disciplinary hearing, the Applicant was serving a serious warming owing to a previous misconduct charge with regard to the submission of a big for Regional 5 games. The serious warning communication was tendered by RW1 as exhibit EC 5. | have already highlighted the evidence with respect to the issue of the Regional 5 games bid and | do not see it necessary to reproduce it. What is important to note from the evidence is that the Respondent's witnesses conceded before this Court that the Respondent's Terms and Conditions of 31 Service do not provide for the sanction of serious warning. This simply means that the sanction that was given to the Applicant for the said misconduct was an invalid sanction and the Respondent would not have relied on the said invalid sanction to justify the decision of summary dismissal in the subsequent disciplinary hearing. Furthermore, the said previous disciplinary proceedings against the Applicant were on the basis that the Applicant's conduct in failing to submit a bid for the Regional 5 games in time potentially caused a loss of over MK1.5billion that could have been earned by the Respondent had the bid been submitted in time. It is in evidence that the bid in question was cancelled and re-advertised. The Applicant subsequently submitted a bid which was successful and the Company gained from the successful execution of the bid. The Respondent did not act with justice and equity in using this incident as an aggravating factor in the subsequent disciplinary hearing that led to the summary dismissal of the Applicant herein. In the circumstances of the present case, it is the view of this Court that the reason that the Respondent used to dismiss the Applicant herein was not enough to effect the sanction of dismissal and consequently, the Respondent did not act with justice and equity in dismissing the Applicant. In Sokalankhwazi v. Sugar Corporation of Malawi Lid (2004) MLR 358; the Court stated that the fact that the law requires that there be a valid reason for the termination of employment casts the burden of proof that such a reason exists on the employer and further that the employer must set about identifying the reason for dismissal. After showing the reason for the dismissal, the onus still remains on the employer to prove the reason for the dismissal. The sentiments in the Sokalankhwazi case were echoed in the Singini v. BCA Bestobell Malawi, |RC Matter No 274 of 2002, where the Court held as follows: 32 “Where there is an allegation of dismissal, the burden is on the employer to show that there was a valid reason for the dismissal and that the employer acted with justice and fairness before dismissal. The employer must substantiate the reason in Court. In the absence of such proof there is conclusive presumption that the dismissal was unfair. Having analyzed the evidence presented before this Court; it is the finding of this Court that the Applicant's dismissal was unfair in that the Respondent did not act with justice and equity in dismissing the Applicant herein for failing to prove the validity of the reasons for dismissal and also for breaching principles of procedural fairness in as far as the conduct of the disciplinary hearing is concerned. The claim for unfair dismissal by the Applicant succeeds. Pursuant to the finding that the Applicant was unfairly dismissed, this Court proceeds to award the Applicant the remedy of compensation for unfair dismissal, notice pay as well as severance allowance. The claim that the severance allowance be paid with interest is dismissed as | do not see the basis for the same. This Court does also not see the merit in the prayer for payment of bonus for the year 2022 as | do agree with the position of the Respondent that the Applicant did not qualify for the said bonus for the year in question. Again, the Applicant gave no evidence as to whether the Respondent made a profit for that year and whether other employees received a bonus in question. It has to be stated that payment of '‘performance-based incentives’ or what is loosely called ‘bonuses’ is never as of right as per the policy of the Respondent. There must be clear evidence that the employee meets the set criteria under the scheme of the performance-based incentives. For the Respondent, exhibit GK 9 being the Performance Related Incentive Schemes is quite crucial when it comes to the issue Of bonus. 33 The Applicant admitted in cross-examination that he is only entitled to a bonus after calculations and that the formula is as contained in the policy that the Respondent exhibited. He further admitted, such a formula is based on the performance of the particular employee and therefore a performance appraisal is required for purposes of these calculations which performance appraisal was never attached. The Applicant admitted that only those who had worked for not less than six months were entitled to a bonus and that he was confirmed on his new position as of August 2022 when the period for calculation was from January to December 2022. Having considered the conditions for payment of bonus, this Court agrees with the Respondent that the Applicant did not qualify for payment of the same. The claim for bonus is hereby dismissed. WHAT AMOUNTS TO JUST AND EQUITABLE COMPENSATION FOR THE APPLICANT? Having found that the dismissal of the Applicant was unfair, this Court will proceed to assess as to what is the just and equitable sum of compensation for the Applicant. In awarding compensation for unfair dismissal, the current jurisprudence is that the Court will have to base its award mainly on the duration of service of the employee and the salary that he used to get during his employment in line with Section 63 (4) as read with Section 63 (5) of the Employment Act. The law is to the effect that 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 attrioutable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal. The law further provides for minimum awards of compensation which are in line with the length of service of an employee. The Supreme Court of Appeal in the case of First Merchant Bank 34 Limited v. Eisenhower MKaka and Others Civil Appeal No. 1 of 2016 stated as follows; “In assessing compensation; the Industrial Relations Court had to stick to the spirit of Section 63 of the Employment Act. Under this provision it is the duration of service before termination that matters a lot in the calculation of compensation that falls due, not the loss of salary increments and sundry amenities from the date of dismissal to the date of judgment or assessment of damages/ compensation. As already observed, Section 63 (5) sets down the minimum compensation. The court may go up depending on its valuation of the matter. The Court enjoys the wide discretion to settle for either the minimum prescribed or for any higher amounts of compensation as would fit the description of “just and equitable after weighing the considerations in Section 63(4) of the Act" Section 63 (5) of the Employment Act stipulates that the amount to be awarded as compensation shall not be less than one week's pay for each year of service for an employee who has served for not more than five years; 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; 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 one monih's pay for each year of service for an employee who has served for more than fifteen years. The minimum awards provided under Section 63(5) are a starting point. A court has the discretion to award more than the provided minimum awards depending on the circumstances of the case but when awarding more than the minimum, the Court must provide reasons for the 35 same. This is the position stated in Southern Bottlers (SOBO) v. Graciam Kalengo, (2013) MLR 345 where the Supreme Court stated that where the court wishes to exceed the minimum compensation in Section 63(5) of the Employment Act, it must give clear reasons so that the employer, employee and also the appeal or review court are able to appreciate why the award was enhanced. As can be seen from the authorities cited, the correct approach in awarding compensation for unfair dismissal is by reading Section 64 (4) together with Section 63 (5) of the employment Act. This approach places an emphasis on the length of service of an employee when making an award for unfair dismissal and what the law provides for are minimum awards. Again, in making an award of compensation, the Court strives to reach a determination that is ‘just and equitable’ in the circumstances of the case at hand. The considerations with regard to the just and equitable principle are not closed but they include marketability of the employee on the job market; whether the employee tried to mitigate his losses; the manner of termination of employment; legitimate expectations and also inflation as was stated in Kachinjika v. Portland Cement Company, [2008] MLLR 161. The Applicant in the present case was employed on the 1 7h day of September 1991 and he was dismissed on the 26! day of January 2023. This means that the Applicant completed 31 years by the time of dismissal and in line with Section 63 (5) of the Employment Act his minimum award is one months’ pay for each year of service. However, the finding of this Court is to the effect that the Resoondent did not act with justice and equity in dismissing the Applicant as there were grave procedural shortfalls in the conduct of the Applicant's disciplinary hearing that led to his dismissal and further that the reason for dismissal was inadequate to justify the sanction of dismissal imposed on the Applicant. Considering the above 36 stated circumstances, it is the view of this Court that it is just and equitable to award the Applicant compensation over and above the minimum provided for under Section 63 (5) of the Employment Act. Before | proceed, | feel its important to highlight the justification for the 31 years of service of the Applicant. The emphasis is particularly due to the evidence of RW2 and the argument raised in the Respondent's final submissions with respect to the period of service of the Applicant for purposes of compensation for unfair dismissal. In his evidence in chief, RW2 told this Court that for purposes of the Applicant's claim for unfair dismissal, it is incorrect to use 31 years as the period of service as the evidence of the Applicant is that the claim for unfair dismissal is emanating from the termination of the fixed contract that run from February 2022 and there is no claim for unfair dismissal for the other years the Applicant was with the Respondent. RW2 stated that the compensation can only be calculated for the period that the Applicant worked under the fixed term contract which is less than a yeor. In cross-examination, however, RW2 confirmed that the Applicant was employed in 1991 and was dismissed in January 2023 and that he did work for 31 years. RW2 further stated that after the change in the status of employment of the Applicant from permanent to a fixed term renewable contract, the Respondent treated the Applicant's employment as continuous service. He stated that the Respondent did not issue a letter terminating the Applicant's employment after the restructuring process and as a result the Applicant was not paid severance allowance at that point. He confirmed that in this matter, the Applicant should be treated as if he was in continuous employment for 31 years. 37 It is clear from the evidence of the Respondent that for all intents and purposes, the change of the contract status effected in 2022 for the Applicant had no effect on the period of service of the Applicant. Again, to buttress the point that the change of the contract status did not affect the Applicant's period of service is the latest pay-slio of the Applicant that was exhibited as GK-10 by RW2. The said exhibit clearly indicates date of engagement of the Applicant as 17 Seotember 1991 and this pay-slio was for the month of January 2023, the month that the Applicant was dismissed. This means that despite the change in the status of employment, the Respondent still considered the Applicant as having worked from 1991 hence there was no break with respect to his years of service for the Respondent, This is why the assessment of compensation herein will stick to 31 years as the applicant's period of service. In his evidence as seen from his witness statement, the Applicant prayed for an award of the initial minimum of one month compensation as provided for under Section 63 (5) of the Employment Act and a further three months’ pay for each year of service to account for the Respondent's conduct leading to his dismissal. Essentially, the prayer of the Applicant is that he be compensated with four months' pay for each year of service as compensation for the unfair dismissal. Three cases on awards for compensation for unfair dismissal have been considered by this Court in reaching its determination. The first case is Victoria Chidumula v. Limbe Leaf Tobacco Company Limited (Matter No. IRC 87 of 2016). The Judgment in the Chidumula matter was delivered on the 14!5 November 2022. In that case, the Applicant was awarded one month's pay for each completed year of service over and above the minimum award provided for under Section 63 (5) of the Employment Act though the Applicant was found to have 38 coniributed to her dismissal. The Applicant had worked for four years by the time of the dismissal. The second case is a decision delivered on the 31st day of January 2023 in the case of Prescott Nkhata & 98 others v. Inde Bank Limited (IRC Matter No. 67 of 2016). The Court in the Nkhata case placed emphasis on the length of service of the Applicants; the fact that the Applicants did not contribute to their dismissal and the conduct of fhe Respondent in the process of dismissal. In its finding, the Court awarded one month pay for each year of service for employees who had worked below five years and two months' pay for employees that had worked for more than 5 years but not more than 10 years and three months’ pay for those above 10 years and below 15 years. The third case considered by this Court is the case of Chifundo Chioko & 59 Others v. First Capital Bank (Matter No. IRC MZ 10 of 2020) where the Court awarded the minimum awards as provided under the law and proceeded to award three months' pay for employees who worked for a period of below five years; four months' pay for employees who worked between five to ten years and five months' pay for employees who worked between ten to 15 years. The Chioko case involved dismissal by way of retrenchment where the Applicants did not contribute to their own dismissal. Having considered the precedents and the number of years of service of the present Applicant being 31 years, this Court could have awarded the Applicant herein 5 month's salary for the unfair dismissal in question. However, my finding is that the Applicant was in the wrong in sharing the letter subject to the disciplinary hearing that led to his dismissal although the said wrong should not have led to the dismissal considering the circumstances of the case. This means that, the Applicant still has to take a minimal blame for his dismissal as he partly contributed to it as per the finding of this Court. It is on the basis of this finding that this Court 39 deems an award of 3 months’ pay for each year of service as just and equitable award in the circumstances of the within matter. The Applicant is, therefore, awarded three months salary for each year of service as compensation for unfair dismissal. As per the pay-slip tendered by the RW2 as exhibit GK-10, the total earnings of the Applicant as of the month of January 2023 when he was being dismissed were MK10,411,475.45. The definition of "remuneration" under Section 3 of the Employment Act means the wage or salary and any additional benefits, allowances or emoluments whatsoever payable, directly or indirectly, whether in cash or in kind, by the employer to the employee and arising out of the employee's employment. The amount indicated on the pay-slip does not include other entitlements payable to the Applicant which include fuel allowance, airtime allowance, medical allowance, residential internet allowance and school fees allowance. The annual amounts for these entitlements were laid out in the Applicant's IRC Form 1 and the Respondent's witness particularly RW2 confirmed that the Applicant had these entitlements in his witness statement. The Applicant's pay-slio only captured the basic salary and the motor vehicle allowance. My addition of the Applicant's total remuneration which includes the salary on the pay-slip and all the entitlements listed herein “comes to MK12,479,275.5. | must state that this amount does not include the medical allowance as this Court has not been advised as to how much the entitlement of the medical allowance was as the Applicant did not include the amount in his IRC Form 1 list of entitlements. The entitlements remuneration has taken into account the basic salary of MK6,808,731.33; vehicle allowance of MK3,602,744.12; fuel allowance of MK4é60, 800; Internet allowance of MK210,000.00; airtime allowance of MK147,000 and school fees allowance of MK1,250,000.00, Since the 40 Applicant has been awarded three months pay for each year of service and he worked for a period of 31 years, the total compensation payable for unfair dismissal comes to MK1,160,572,621.5. SEVERANCE ALLOWANCE The Applicant worked for 31 complete years. The formula for payment of severance allowance is provided for under Section 35 of the Employment Act and under the said Section, an employee is entitled to two weeks’ pay for each completed year of service for the first five years; three weeks' pay for each year of service from the sixth year up to and including the tenth year and four weeks’ pay for each year of service from the eleventh year onwards. In terms of the remuneration to be used for purposes of calculation of severance allowance, there are some entitlements that are not included in the calculation of remuneration as provided for under Section 35 (2) of the Employment Act. In relation to the case at hand for the present Applicant, the entitlements that should not be included in his remuneration for purposes of severance allowance calculation are school fees allowance and medical allowance. The earlier calculation of the Applicant's remuneration with regard to compensation for unfair dismissal already did not include medical allowance as the amount was not provided. This means that what needs to be removed from the remuneration used in calculating remuneration for purposes of compensation is the amount for school fees being a sum of MK1, 250,000 per month. The monthly remuneration for purposes of calculation of severance allowance is therefore a sum of MK11,229,275.5. The calculation of severance allowance payable to the Applicant is as follows; 41 For the first five years MK11,229,275.5/ 2 = MK5,614,637.75 MKS,614,637.75* 5 = MK28,073, 188.8 From 6h year to 10! year Three weeks’ pay = MK8,421,956.63 MK8,421,956.63 * 5 = MK42,109,783.2 From the 11 year to the 315! year MK11,229,275.5 *21 = MK235,814,786.00 The total severance pay payable to the Applicant comes to a sum of MK305,997,758.00. NOTICE PAY Clause 11 of the Respondent's Terms and Conditions of Service provides that employees of the grade of the Applicant are entitled to three month's salary in lieu of notice, The Applicants notice pay is, therefore, a sum of MK37,437,826.5. The total sum awarded to the Applicant as compensation for unfair dismissal; severance pay and notice pay comes to MK1,504,008,206.00 and the Respondent has a period of 14 days to make the payment. 42 As per Section 65(2) of the Labour Relations Act, any aggrieved party has the right of appeal 30 days from the date of this judgment. | Delivered on the 24 Day of JUNE 2024 at Mzuzu, ANTHONY PITILIZANI KAPASWICHE DEPUTY CHAIRPERSON 43