Dumisani and 4 Others v Silver Spirits (Malawi) Limited (Old Management) t/a Samatha Food and Beverages Limited (MATTER NUMBER IRC 35 of 2018) [2020] MWIRC 5 (29 July 2020)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT OF MALAWI MZUZU REGISTRY MATTER NUMBER I. R. C. 35 OF 2018 BETWEEN DUMISANI AND FOUR OTHERS .................:seseeceeeecetensencuseeeeeeeeeeenes APPLICANTS AND SILVER SPIRITS (MW) LTD (OLD MANAGEMENT ).................2c0eceeeeees RESPONDENT (t/a) Samatha Food & beverages Ltd) CORAM: HIS HON. KINGSLEY D. MLUNGU, DEPUTY CHAIRPERSON APPLICANTS / PRESENT / UNREPRESENTED MR MIKE MUNTHALI, RESPONDENT'S COUNSEL MR HEZRONE MHONE, COURT CLERK RULING 1. BACKGROUND/INTRODUCTION Before me is a claim for terminal benefits, namely, Leave pay, gratuity, Notice pay and service allowance by the applicants herein against the cited Respondents. 2. APPLICANTS’ EVIDENCE Briefly the applicants allege that they were general workers for the Respondent Company having been employed on divers dates from 2011. In 2016 there came a new management to run the Company together with the old management. By then the manager and owner of the Company was Mr. H. P Reddy and the one who came to join him was his younger brother Pavani Reddy and was going to pump in 60% where as H. P Reddy would have 40% in Capital shares. In December, 2016 they received their Christmas bonus from the Company. In mid-2017, (January & July) when the Government directed that alll liquor (spirits) manufactures should halt their operations, staff were told to go for a monthly holiday from 31st July, 2019 apart from some chosen skeleton staff of which they were part of. The applicants were then given the July salary and one month pay for August, 2017 whilst being told that they will come back after a month. However, when the Government lifted the ban in December, 2017 and production at the Company resumed, they were not called back to work yet others were. Those called back informed them that they will not be called back. This prompted the five applicants herein to complain at the Labour Office which advised them to first of all enquire of their employment status with the Respondent Company. Management told them to still wait as production had just started and ona smaller scale. Later they were told that there was no work for them. They then went back to Labour Office who did some terminal dues calculations for them and referred them to this Court. When pre- hearing dates were set, the Respondents were not forthcoming hence the matter being referred to the Deputy Chairperson of this Court. During cross — examination of the applicants’ witness, Duminasani Tchongwe, he stated that all five applicants wrote letters to management and signed them acknowledging receipt of payments but the same were not terminal dues although thereon it was indicated Basic salary for July, 2017, gross salary, Allowance, Notice Pay and Gratuity. He went on to confirm that they received the amounts indicated on the shown/ identified letters / documents. He said it was all the five applicants who wrote and acknowledged the said payments and the Notice Pay was for the month of August, 2017, whereby they were going to stay at home for one month pending resumption of production. He said further that, however there was no proper explanation as to what this Notice pay implied. admitted to have authored and signed for documents acknowledging receipt of the same. They even admitted owing the Respondent various amounts of which the Respondent indicated to them that they were forgiven. It seems fo this Court that the applicants are relying on the calculations made by the Labour Office where they lodged the complaint at first. Much as this is so, those calculations on their own without proving the claim in this Court yields nothing. The applicants’ herein were supposed to bring evidence that the Respondent owed them leave pay for unpaid leave days and whatever amount is indicated on the said Labour Office calculation sheets other than just producing the same and say nothing more as to their origin and correctness; or they could have proved their claim and asked this court to do a recalculation of the said claims. This was not done. The applicants cannot therefore be said to have proved their claim to the requisite standard. The Court cannot go to the root of proving the claims on behalf of the applicants, Accordingly, it is the finding of this Court that the burden of proof remains undischarged and as such the claim herein cannot succeed. It fails in its entirety. Dated This 29'" Day of July, 2020 at Mzuzu. K. D aah DEPUTY CHAIRPERSON