REPUBLIC OF MALAWI
IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL REGISTRY
MATTER NO. IRC PR 230 OF 2011
IN THE DISPUTE BETWEEN
LUKA CHIPEMBERE..........................................................APPLICANT
-ANDANGLICAN DIOCESE OF SOUTHERN MALAWI.......RESPONDENT
CORAM: J N’riva Deputy Chairperson
Applicant represented by Mr Namagonya
Respondent represented by Rev Canon A Kaswaya and Rev Fr
Kalilombe, Priests
Clerk Ms Mbobe
RULING
The main issue in this hearing is whether the applicant was on a threeyear contract or a two-year one. The other issues for determination are
subsequent to that question. The issues are: if it was a three year
contract, whether the respondent breached it by terminating it after two
years and whether the applicant is entitled to compensation for that
breach and whether the applicant is entitled to gratuity for the
remaining part of the contract. To a great extent, therefore, the issue
before us had to be the interpretation of the contract between the parties.
At the beginning of the hearing, we proceeded on an understanding that
the issue before the court was about the construction of the contract.
This never came to be.
The applicant’s statement of claim stated that he entered into a three
year contract of employment with the respondent. In breach of that
contract, the respondent terminated the contract after two years.
On the other hand, the respondent made an assertion that they
employed the applicant on a two-year contract. His contract was not
renewed towards the end of the period due to unsatisfactory
performance. In short, the applicant suggests that he was on a threeyear contract whereas the respondent suggests that he was on a twoyear contract.
Reverend Canon Constantine Kaswaya has sworn an affidavit
emphasising that the applicant was not on a two-year contract.
Reverend Kaswaya is the retired diocesan secretary for the respondent.
During the hearing, the applicant’s representative told the court that the
applicant entered into a three-year contract. However, when his
employment was terminated, he was given a letter stating that his
appointment was for two years and not three years. However, there is a
another letter that shows that the applicant’s contract was for three
years.
Rev. Kaswaya contends that the applicant was given the letter at the end
of the contract because he (the applicant) had stated that he did not have
the offer letter. On the letter talking about three years contract, Rev
Kaswaya said the letter was addressed to Mrs Ann Salaka and not the
applicant; in his words, it was an internal letter.
The letter in question is dated 19th July 2007 and is in the following
terms:
Paragraph 2 (the first paragraph was in respect of another person):
Mr Luka Chipembere has finally completed his six months probation successfully.
He needs his salary adjusted upwards. Unfortunately we did not come up with
definite figure as he is on a three-year contract. He advised us not to consider him to
be on MASM.
Waiting to hear from you soon,
Yours in Christ Service
Constantine A. Kaswaya
DIOCESAN SECRETARY
On his part, Fr Kalilombe stated that the above letter, though not
addressed to the applicant shows that the applicant was confirmed.
None of the parties has brought forward the contract of employment.
The parties have relied much on some letters. It is contended that the
letter connoting that the contract was for two years was given to the
applicant at the time of the dismissal. The respondent on the other hand
argues that they gave the applicant the letter at that point because the
applicant had argued that he had not received the letter at the inception.
On the letter I have reproduced above, the respondents argue that it was
merely an internal letter. It was not meant for the applicant.
It appears that the applicant had an understanding that he was in a
three-year contract. Of course, there is a letter that talks about a two-year
contract. The applicant argues that he got the letter at the termination of
his employment. The respondent agrees but states that that happened
because the applicant was suggesting that he did not have the letter. In
other words, the respondent was merely giving a copy of the letter they
already gave the applicant. As to the other letter, the only thing the
respondent states is that that letter was not meant for the applicant. The
applicant was, nonetheless, part of the respondent’s employment. The
respondent does not indicate that the mention of the three years was
mistake or something not intended. Whichever way, the applicant got
the letter in question, it seems to me that the letter might have created in
the applicant expectations that he was on a three year contract. As I have
pointed out above, we have not seen any contract. More to that the
applicant states that he was offered a three-year contract. The
respondent’s opposition to this assertion is not quite strong. All the
respondent’s witness stated was that he was sure it was a two yearcontract unless his memory was betraying him. He suggested that
sometimes, his memory betrays him because he is a cancer patient. On
the evidence before this court, there are factual issues about allegation of
termination of employment contract. Matters of such nature are
supposed to be decided by a full court. Of course, I can make a finding
whether the parties entered into a two year or a three year contract.
Finding in one way of the two would technically and actually
mean
that I am saying there was unfair dismissal. That is a factual question.
Moreover, in this matter we do not have the written agreement oral any
other facts of the agreement. The facts are still in dispute. At first we
thought our task would merely be to construe a contract. That is not the
case here. I did not even hear the parties in evidence apart from merely
receiving the respondent’s affidavit in support of their assertion. This
therefore is a matter fit for determination by a full panel after a real
hearing. Even if I consider the issue of the length of the contract, and in
case I find that it was a three-year contract, there would still be need to
consider compensation which I believe would be within the province of
the court sitting with member panellists. There is also the issue about
claim for gratuity. That, too, is a factual question. It is dependent on the
contractual obligation between the parties. That, too, has not been
argued at this hearing. So the whole matter
should be heard by a full
panel.
MADE the 28th day of November 2011
J N’riva
DEPUTY CHAIRPERSON