Mhango and 7 Others v Malawi Housing Corporation (MATTER NUMBER IRC 53 of 2012) [2019] MWIRC 10 (17 July 2019)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY MATTER NUMBER I. R. C. 53 OF 2012 _BETWEEN PATSON MHANGO & 7 OTHERS .......cccccccceccssecesceseseeseeceseaceeees APPLICANTS AND MALAWI HOUSING CORPORATION...0....0... cccscesessssececeeceecenees RESPONDENT CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON APPLICANTS / PRESENT / UNREPRESENTED JANET TCHUKAMBIRI & MR SAKA, RESPONDENT'S REPRESENATIIVES, LEGAL ASSISTANT & HUMAN RESOURCES OFFICER MR HEZRON MHONE, COURT CLERK JUDGMENT/RULING BACKGROUND This is a claim for severance pay, housing allowance, salary arrears and public holiday overtime by the applicants herein against the Respondent, Malawi Housing Corporation (M. H. C)}. The main issue for determination is whether the applicants have proved the said claims to the requisite standard of balance of probabilities. The applicants called one witness, Mr Patson Mhango who testified that they were working as security guards at Malawi Housing Corporation from various dates and based in Mzuzu. In their IRC Form 1, the applicants stated that the Respondent was paying them prescribed rate of wage per day and paid monthly and that they were working 12 hours per day including weekends and public holidays. They said that the Respondent raised their pay rate but did not effect the same and as such they claim the said raise. They said from January 2011 to June 2012, the Respondent increased their daily rate earnings from K142.00 to K213.00, from July 2012 the rate was adjusted from K330.00 to K345.00 but they were still being paid K213.00 daily rate. They wondered why this was so_ yet their colleagues in Blantyre were having their pay adjusted accordingly and that the same Respondent paid them arrears in July, 2012 at the rate of K345.00 per day. They tendered exhibits which were marked as PM1, (a) and (b); PM2; PM3;PM4; PM5; (a); (b); and (c). They said the Respondent terminated their employment contracts in April, 2012 except for Patson Mhango in August, 2012 and Sharex Mtonga in July 2012, without paying them severance allowance. The Respondent, in its IRC Form 2, denied owing the applicants’ salary arrears, housing allowance or any money aft all and put the applicants to strict proof thereof, It stated that the applicants were employed on temporary terms for a specific period and that they were given notice pay and leave pay at the end of their contract of employment and all their lawful dues. In her evidence before this court, Miss Janet Tchukambiri, for the Respondent stated that the applicants were receiving a monthly salary of K3,692.00 in 2010 which was the minimum wage and she tendered the wage sheet for December 2010 which was marked as exhibit J. T.1 She went on to say that in 2012, government increased minimum wage From MK178.25 per day to MK317.00 per day and this translated to K8,242.00 per month and based on exhibit PM2, the applicants were receiving K337.50 per day which was way much above the Government minimum wage. She said that despite this, the Respondent increased the amount to MK350.00 per day as per exhibit J.1.2, and they received K8,625.00 in July, 2012 after the minimum wage increase had come into force. On the issue of Housing allowances, she said that in 2010, the Respondent got a government directive that all statutory Corporations should cease giving their employees housing allowances but it should be incorporated into the lump sum as a salary and that is why prior to this, the applicants’ pay slips were having housing allowances. As such they cannot claim it. On the issue of Public Holidays Pay, she said that the Corporation's Policy was that security guards cannot all go for a holiday and as such those who worked, were later given a leave day which was translated into a sum of money paid at the end of month in aggregate as leave pay as reflected in the applicants’ pay slips. On the issue of severance pay, she said that since the applicants’ contract of employment were for a specific period, the applicants cannot claim the same as per section 35 (7) of the Employment Act. In conclusion, she stated that as per the conditions of service for security guards, Condition No. 2 is that where the employee was sick or absent, no payment shall be made for that day — see exhibit J.1.3. Hence the explanation for lower wages on the pay slips, i.e., the applicant missed some work days and the daily pay for that particular day was not counted. During cross examination, she stated that Government was producing minimum wage which Malawi Housing Corporations was already complying with as the applicants were already getting a higher wage. She stated further that the figure of K350.00 per day on the minute marked as exhibit PM2 was just a proposal where by the Human Resource Manager was writing to the General Manager and when management met they agree not to implement the same as the applicants were getting higher than the minimum wage. She said all the applicants got their whole lawful amounts/ dues in April, 2012 except the 1st applicant who received K18,640.00 in July, 2012 and the balance of K11,026.00 in December, 2012 and in total he got K29,623.00. She then finally tendered exhibit J.1.4 to explain the differences in wage increment for project and maintenance temporary workers. So, this court having heard both parties and analysed any documents tendered in this court, it is satisfied that the applicants were paid their terminal dues. As for severance pay, the Respondent has ably stated the position of the law regarding employees whose services is terminated with effluxion of time, i.e. those whose contracts are for a specified period of time. To that end, this court finds no basis to make the Respondent pay for the applicants’ claims for severance pay, housing allowance, salary arrears and public holiday overtime. | dismiss the claims in their entirety. MADE This 17> day of July, 2019. H/H K. D MLUNGU DEPUTY CHAIRPERSON