IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 219 OF 2002

BETWEEN:

WILLIAM BVUMBWE ………………………………………………. APPLICANT

-and-

BANJA LA MTSOGOLO ………………………………………….. RESPONDENT

CORAM: R. ZIBELU BANDA, DEPUTY CHAIRPERSON

William Bvumbwe, Applicant

S. Jussab for Respondent

Ngalauka, Court Clerk

RULING

Urgent interim relief- Industrial Relations Court (Procedure) Rules, 1999, r.16- pension as part of employment contract-terms and conditions subject to contract

FACTS

This is a motion for urgent interim relief filed by the applicant under Rule 16 of the Industrial Relations Court (Procedure) Rules, 1999 to recover a balance of pension payment from the respondents. The applicant stated that upon termination of his services he was not paid all his pension dues and he applied to this court to enforce payment of the said balance. He asserted that he was entitled to One Hundred Sixty Six Thousand and Fourteen Kwacha and seventy-eight tambala (K166, 014.78) plus another amount to be calculated from 31 March to 4 December 2001.

Assessment of facts

The applicant relied on a memorandum from the respondents dated 07/11/2000 indicating that pension scheme would not be terminated in March 2001 as previously indicated. This was followed by an annual pension benefit notification from INDETRUST Limited, the pension scheme administrators. This notification showed that the applicant’s benefits were K166, 014.78.

During hearing it transpired without dispute that every year in March, INDETRUST produced and disseminated notifications on the state of pension benefits to all members of pension scheme at Banja La Mtsogolo. It was therefore not out of the ordinary that the applicant received this notification at this particular time of the year. It also transpired that the applicant would ordinarily have received that amount if he were retiring during that particular period.

THE LAW

The applicant contended that the respondents had put in him a reasonable expectation that in March 2001 he would get K166, 014. 78. However, apart from the memorandum of November 2000 there was no evidence to sustain that expectation. The memorandum itself was vague and inclusive because it refers to previous indications, which were not known to the applicant. It also refers to future communication, which did not occur. The applicant did not seek further clarification from the respondents after receiving this memorandum until his services were terminated. At the termination of his employment he received Ninety Thousand Three Hundred Eighty- Five Kwacha and fifty tambala (K90, 385.50) only.

The respondents explained that this amount reflected the applicant’s own contribution plus the employer’s contribution and interest also referred to as bonus. The calculation was in conformity with the Special Rules of the pension scheme. The applicant got part of the interest/bonus while the other part remained in the fund to be distributed to remaining members of the scheme in the next pension scheme year. The respondents explained that the applicant would have received the full bonus/ interest if he were retiring at that time.

Pension scheme formed part of the employment contract. If an employee does not agree with terms and rules governing the scheme he must either negotiate or withdraw or decline from joining that scheme. Consequently, an employee is obliged to find out terms and rules governing his pension scheme. The court will not add or substitute terms or conditions of an employment contract to suit the needs of any party.

FINDING

The court finds the claim baseless. There was neither a promise that the applicant would get K166, 014.78 in March 2001 nor was there a contractual obligation on the part of the respondents to pay the applicant the money claimed. I accordingly dismiss the motion in its entirety.

MADE IN CHAMBERS this 21^st day of November 2002 at LIMBE.

R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON.