-and-

Applicant – Present

Respondent – Present

Davie Mpakani – Official Interpreter

J U D G M E N T

This matter was brought by Mrs. Alice Mwale the Applicant who is the surviving spouse of the late Mr. Mwale. The matter was brought against Muchina Construction Company the Respondent. In her Statement of Claim, the Applicant would like the Respondent to pay to her severance allowance for her late husband who had worked for the Respondent from 1988 to 2001 before he sadly met his death. Thus she is claiming for severance allowance for a period of 14 years.

From the totality of the evidence from both sides, it was settled as a fact that Mr. Mwale was indeed employed by the Respondent. The Applicant was not specific as to when her husband started working for the Respondent.

The Respondent who were represented by Mr. Killy Munthali the proprietor of this Company however confirmed that he employed Mr. Mwale in 1989. The Court therefore took the word of Mr. Munthali to have been truthful. It is again settled as a fact that the late Mr. Mwale worked very well for the Respondent and was even elevated to the position of Foreman.

It is again settled as a fact that by the time Mr. Mwale met his death on 5^th July 2001 as he was on his way to work, he was still working for the Respondent.

There was however some dispute in relation to the period between 1999 and 2000. The Respondent in their response to the claim said that between 1999-2000, the deceased had absconded and worked for some other person. Thus he only re-surfaced back in 2000 and pleaded to be re-employed.

When narrating his evidence in this Court, Mr. Killy Munthali told the Court that in the year 1999, he fell into deep financial problems. This was largely due to the armed robbery, which he had suffered whilst on the way to Karonga. His brand new lorry, which he had purchased on loan, was stolen from him at gunpoint on the Chikangawa-Mzuzu road. As a result of this debacle, he had to service a loan with the company, which had sold him the lorry; yet the lorry was not generating any money. He thus decided to lay off several employees. He however conceded that Mr. Mwale was one of his most reliable employees who he did not lay off. But due to financial problems, he had difficulties to pay the people. He recalls that during that time, Mr. Mwale briefly found some work with a person he could not disclose.

But later on Mr. Mwale came back and confessed that all was not well with this new employer. The evidence of Mr. Munthali was that although Mr. Mwale thus, he welcomed him back as a lost sheep.

The evidence of Mr. Killy raised a very crucial issue in relation to payment of severance allowance. He was raising an issue that at one point Mr. Mwale disrupted his employment (services) with the Respondent. Thus in terms of the Employment Act, he could not be entitled to severance pay. The Employment Act pursuant to Section 41 (1) talks of continuous employment. This Section provides:-

"For the purpose of this Act, "continuous employment" shall begin from and include the first day on which an employee begins to work for an employer and shall continue up to and including the date of termination of employment."

In this particular case, Mr. Munthali openly told the Court that he never terminated the services of the late Mr. Mwale.

Thus the Court takes it that Mr. Mwale had worked continuously from 1989 to the day he was hit by a motor vehicle in 2001. The issue that he absconded from 1999-2001 cannot hold water here. There were two witnesses in this Court from the Applicant side, Mrs. Mwale and Mr. Mwandira. Both witnesses stressed that Mr. Mwale worked for the Respondent up to the time of his death. Indeed this was not challenged.

If indeed Mr. Mwale had absconded from work between 1999-2000 (a period of 1 year), certainly the Respondent could have instituted disciplinary measures. There is nothing of that sort. This Court has failed to believe the story told by Mr. Munthali. The Court finds that Mr. Mwale worked for him from 1989 to 2001. without any interruption. At the time he died, he was a foreman and earning K6,448.00 per month.

The Court should therefore address its mind on the law on severance allowance.

Section 35 (1) of the Employment Act provides:

"On termination of contract by mutual agreement with the employer or unilaterally by the employer, an employee shall be entitled to be paid by the employer, at the time of termination, a severance allowance to be calculated in accordance with the First Schedule."

Section 35 (7) provides:

"Where the contract of employment is terminated by reason of the death of the employee, the severance shall be paid to the surviving spouse of the deceased employee or, in the absence of such a spouse, to such other dependent as the labour office may decide."

It is however to be made clear here that since this matter was brought before the Court, this Court has powers pursuant to Section 35 (8) to order for payment of severance allowance. The surviving spouse Mrs. Mwale is therefore entitled by the foregoing provisions to severance allowance for her late husband. The Court has found that from 1989 to 2001, the late Mr. Mwale had worked for 13 years. As per the First Schedule in the Employment Act, a person who has worked for over 10 years is entitled to four weeks’ wages for each completed year of service.

This four weeks’ wages is equivalent to 1 month’s wages. Since the late Mr. Mwale was getting K6,448.00 at the time he died, I find that this amount multiplied by the 13 years gives me K83,824.00 as severance allowance. I thus order that the Respondent should immediately pay to Mrs. Mwale this amount through this Court.

DELIVERED this 29^th day of April 2002 at the Industrial Relations Court, Lilongwe.

M.C.C. Mkandawire