-and-

SUCOMA LIMITED……………………………………RESPONDENT

Mr. Joster Mwazani Chisale for the Applicant

Mr. Chalamanda for the Respondent

Mrs. Mzumara – Official Interpreter

R U L I N G

This matter has been brought before this Court by Counsel for the applicant in order for the Court to determine that summary judgment be entered in favour of the applicant for the sum of K1,849,124:10 being severance allowance payable by the Respondent to the applicant pursuant to Section 35 (1) and (7) of the Employment Act, 1999, inclusive of 15% solicitors statutory collection fees pursuant to Table 6 of the Legal Practitioners (Scale and Minimum Charges) (Amendment) Rules, 1999. The application is supported by an affidavit deponed by Mr. Joster Mwazani Chisale of Counsel for the applicant. By the Applicant’s Statement of Claim dated the 18^th of October, 2001, the Applicant’s Claim against the defendant is for payment of severance allowance in the sum of K1,849,124:10 inclusive of solicitor 15% collection charges pursuant to Table 6 of the Legal Practitioners (Scale and Minimum Charges) (Amendment) Rules, 1999 and costs of this suit.

It would appear that the Respondents do not really have a defence to this relief sought. I say so because there is form IRC (the respondent’s statement of reply) filed with the Court but with no response at all. I also observe that the Respondents have not filled in any affidavit to oppose the application made in this matter.

In entertaining this matter, I have taken into account the provisions of Section 67 (3) of the Labour Relations Act, which provides as follows:-

"Where the dispute involves only a question of law, a sitting of the Industrial Relations Court may be constituted by the presence of the Chairperson or Deputy Chairperson sitting alone."

I find that the matter before me really involves the provisions of Section 35 of the Employment Act as read with Sections 64 and 65. Before I further delve into the matters at hand, I have a few observations to make in relation to the way the motion herein has been brought. These are very critical issues especially at this point in time when the Court has started receiving a lot of legal practitioners.

The Rules governing this Court are those known as the Industrial Relations Court (Procedure) Rules, 1999. These are the Rules which the Hon. the Chief Justice has sanctioned pursuant to Section 71 (1) of the Labour Relations Act. In these rules, we do not have provisions such as those, which are found in the white book commonly referred to as the Rules of the Supreme Court (RSC). This Court does not use such rules as are commonly applicable in the High Court and Supreme Court of Appeal. Be that as it may, I have looked at the provisions of Rule 16 (1) of the Industrial Relations Court (Procedure) Rules, which deals with interlocutory applications and matters not covered by these Rules. This Rule provides:-

"An interlocutory application or other application incidental to any proceedings pending before the Court in respect of which no procedure has been provided for by the Act or by these Rules shall be brought by a party on notice of motion which shall, as near as possible, be in the form set out in Industrial Relations Court Form 3."

Rule 16 (2) provides:-

I note that the applicant’s Counsel have followed the provisions and requirements of Rule 16 (1) (2). That being the case, I can entertain this application.

As already mentioned earlier, this matter has its genesis from Section 35 of the Employment Act. This provision deals with the issue of Severance Allowance. What has happened in this case is that the Applicant’s husband was an employee of the Respondent. The deceased employee died on 4^th May 2001. Thus the Contract of Employment between the deceased and the Respondent was terminated by reason of the death of the deceased. The Applicant has therefore invoked Section 35 (7) of the Employment Act, which provides as follows:-

Then Sub-section (8) provides:-

My understanding of Sub-section (8) is that a party has got discretion whether to go to the District Labour Officer or direct to the Industrial Relations Court (since Court in the Employment Act is defined as the Industrial Relations Court). I say so because the catchword in this provision is may. The Applicant has decided to complain direct to the Court for his severance pay.

The matter having come before this Court, I have looked at the affidavit in support of this application. I have also looked at the arguments put forward by both sides through learned Counsel. From the word go, I find that the Respondents are not disputing the fact that the Applicant’s husband is entitled to severance pay. The issue they have raised is about the Applicant’s status. They are saying that there is no cogent evidence that the Applicant is the surviving spouse of the deceased employee so as to entitle her to severance allowance pursuant to Section 35 (8). I am afraid to say that I do not have any basis on which I can hold that the Applicant is not the surviving spouse of the deceased employee. The Respondent did not even suggest to this Court why they would doubt the truthness of what is contained in the affidavit of Mr. Chisale about the Applicant being the surviving wife. I find no basis on that point. I take it that the Applicant herein is the surviving wife of the deceased employee.

The next point I have to look at is whether severance allowance is payable to an employee who is also on pension scheme. This point has raised a lot of contentious issues in the Labour field. Of late, there has been a criss-cross correspondence on the issue. My duty here is to look at the spirit of the Law. My reading of Section 35 of the Employment Act is that Severance Allowance is payable to any employee who qualifies. If one is also on pension scheme, that is his or her luck. I do not think that payment of Severance allowances is only intended on those who are not on pension arrangements. If the Law wanted that to be the case, it could have specifically provided for that.

In relation to issue of costs; I do refer both Counsel to Section 72 of the Labour Relations Act, which provides as follows:-

"Subject to Sub-section (2) the Industrial Relations Court shall not make any order as to costs."

I therefore do not award any costs in this case. I therefore order that the Respondent should pay out the severance allowance to the Applicant as prayed for. The Respondent should deduct any tax that is lawfully levied if any. I would advise here that before they do that, they should liaise with the Malawi Revenue Authority as to whether such an allowance attracts any tax.

DELIVERED this 30^th day of November 2001 at Lilongwe Industrial Relations Court of Malawi.

M.C.C. Mkandawire