Kamoto v Limbe Leaf Tobacco Company (24 of 2010) [2010] MWSC 23 (12 October 2010)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL CAUSE NO. 24 OF 2O1O (Being High Court, Lilongwe Registry, Civil Appeal No. 4 of 2009) BETWEEN: WILLY KAMOTO.... . APPELLANT - AND_ LIMBtr LtrAF TOBACCO COMPANY LIMITED RESPONDENT BEFORtr: HON. JUSTICE D.c. TAMBALA, SC, JA HON. JUSTICE I. J. MTAMBO, SC, JA HON. JUSTICE A. K. C. NYIRENDA, SC, JA Chagwarnnjira & Misanjo, Counsel for the Appellant M. Nkhono, Counsel for the Respondent E. W. S Mwale, Recording Officer Ethei Matunga Chisale (Ndunya), Senior Personal $sr-rr'1erv JUDGMENT I{YIRENDA, SC, JA This appeal is against the award of compensation made by Honourable Justice Mzrkatnanda by his judgment of the 9th Juiy, 2OO9. The judgment was on appeal from the decision of the Industrial Relations Court. The matter is very brief on the facts and the issues for consideration. The appellant had been in the respondent's employment since 1983. He started working as a genera-1 worker, working on shifts during day and night. In the course of time he was upgraded and became a tractor driver. He stil1 continued to work both at night and during day time. In June, 2AO3 the appellant was dismissed from his employment. The reasons for the dismissa-L were that the appellant had refused to work during daytime and instead came to work at night. Both the Industrial Relations Court and the High Court found that the appellant had infact been aliowed to come to work at night by his immediate superior on account that at the material time during the day time he used to take his children to hospital. Both courts found, conseqrrently, that the appellant's dismissal was unlawful. The appeal to this Court does not seek to question that finding. The appeal is only against the amount of compensation that the appellant was awarded. The IndustriaL Relations Court awarded the appellant 12 months salary as compensation pursuant to section 63(a) of the trmployment Act. The High Court raised the award to 15 month's salary. The appellant is sti1l dissatisfied and seeks that the multiplier be raised. He does not however suggest what level rn'ould be considered sufficient. Section 63 of the Emplovment Act provides: "63 (1) If tL-te Courl finds that an emplogee's complaint of unfair dismissal is utell founded, it shall auard the emploAee one or more of the follotuing remedies - (c) an award of compensation as specif,ed in subsection ffift). 63(4) An award of compensation shall be such amount as the Courl considers just and equitable in the circumstances Ltauing regard to the loss sustained bg the employee in so far as the loss is attributable and the extent, if ang, to uthich the to the dismissal. in consequence of the disnissal to action taken by the employer employee caused or contibuted Both the Industria-l Relations Court and the High Court observed, and rightly so, that compensation under these provisions is discretionary. Both Courts went on to observe that the circumstances of the case will guide the court's discretion. During the hearing of the appea-l what took the centre stage was what would be considered appropriate as a multiplier for compensation other than what the lower Courts determined in the circumstances of the appellant's dismissal. A couple of considerations exercised our minds in determining the issue here. The first consideration is that the appellant's empioyment could not have been for life. Unfortunateiy the record does not include the appellant's contract of employment. It occurs to us therefore that this was ordinary employment which could ordinarily be 1awful1y terminated by the respondent and from which the appeliant himself could have larn fully opted out. We acknowledge that the appellant had served the respondent for 17 years. This was a clear sign of commitment to duty and permanence. That nonetheless could not be equal to a commitment for life. It is equally unsafe to assume that the appellant would have been available for the respondent until the age of his retirement as suggested by the appellant. Fortunateiy for the appellant the trmployment Act 2000 setties a couple of key remedies in cases of wrongfui dismissal. These remedies include severance pay which the appellant \ ras paid. The award of compensation is over and above these other remedies and we believe that is exactly the reason why it was made discretionary. Commenting on compensation under section 63 of the Employment Act 2000, Dr. Cassim Chilumpha, SC, in his book "Labour La\ r" says: "The Act requires that the amount to be awarded should be what the Courl cortsiders just and equita.ble in the circumstarlces hauing regard to the /oss sus/ained by the employee in consequence of tLte dlsmlssal and tLte extent, if any, to utLtich he may haue caused or contributed to the dismissal Clearly that prouision giues the Court a lot of discretion in deciding not only the amount to be autarded but also the composition of the auLard itself. Houteuer the discretion needs to be exercised in a structured and justifi.able manner. In other utords although the court has apparent flexibility in determining the compensation to be autarded, it has to be exercise judicially antd in accordantce uith clear rules. As Sir Jol'tn Donaldson obserued in Norton Tools Co. Ltd Tewson [7972] 7 CR 5O1 fthe] court is enjoirued to assess compensation in an amount rtthiclt ls jusl and equitable in all circumstances [but] there is neither justice nor equity in a failure to act in accordallce uith principle" In Clarkson International tools Limited v Short [1973] lCR l9l the approach is that compensation is not to express disapproval of industry policy but to compensate the plaintiff employee for loss occasioned by the unfair dismissal. A11 in all compensation must take into account such matters as immediate loss of wages, to some degree future loss of wages and the manner of the dismissal. Compensation could never be aimed at completely protecting the employee into the future. It is here that the court's discretion becomes criticaL; but that could not mean a court must be pin point accurate in measuring the amount of compensation. Just as the factors for consideration could never be absolute, there could never be a gauge to measure the accuracy of compensation. Unless the exercise of discretion is obviously perverse, an appellate court should be slow to set aside discretionary orders of courts below, Witkamp v Sittitg, 1197 7-721 ALR Mal 246, Kamwamba v J. M. Njala and Sons 1197 L-72) ALR Ma-l. 75. In arriving at 15 month's salar5r as compensation the learned Judge belou' took a number of factors into consideration including the circumstances of the appellant's dismissal, the effort made by the appellant to mitigate 1oss, the possibility of the appellant finding comparable employment on the market, the appellant's age, fitness and qualifications. As it were, the Judge below took into consideration what we ourselves would have taken into in what has been presented consideration. We find nothing else before us bv the appellant to compei us to depart from what the learned Judge determined. In the result we find this appeal without merit and u'e dismiss it. Considering the position of the parties and also that this was a labour related litigation we would order that each party bears o\^rn costs. PRONOUNCED in Open Court at Blantyre this 13th day of October , 2OIO. signed.. S:qtk D. G. Tambala, SC, JA Signe I. J. Mtambo, P€7. J"4r- Signe A. K. C. SC'