Malinda and Others v Carlsberg Malawi Limited (Civil Appeal No. 4 of 2023; High Court Civil Appeal No. 17 of 2021; IRC Matter Number 308 of 2016) [2025] MWSC 1 (3 May 2025)

+a 5 Ray oS? Ker oma REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL ‘SITTING AT BLANTYRE CIVIL APPEAL NO. 4 of 2023 (Being High Court Civil Appeal No. 17 of 2021, Being IRC Matter Number 308 of 2016) BETWEEN ARNOLD MALINDA & 55 OTHERS .......seseseseeseseseseeeeeeeees APPELLANTS AND CARLSBERG MALAWI LIMITED .....scssssesessesessssesesseseeses RESPONDENT

Coram

HON. JUSTICE L.P. CHIKOPA SC, DEPUTY CHIEF JUSTICE HON. JUSTICE H.S.B. POTANI, JA HON. JUSTICE J. KATSALA, JA HON. LADY JUSTICE I. KAMANGA, JA HON. JUSTICE M.C.C. MKANDAWIRE, JA HON. JUSTICE S.L. KALEMBERA, JA HON. JUSTICE R. MBVUNDULA, JA C. Kalua and S. Mumba, of counsel for the Appellants P. Mpaka, of counsel for the Respondent J. Tehukambiri (Ms), Judicial Research Officer Mutinti & Msimuko (Mrs.), Court Reporter Chinkono and Fundani (Mrs), Court Clerks

Judgment

Hon. Chikopa SC, Deputy Chief Justice

Background

1. There are 56 appellants in this matter. They claim that they were at all material times employees of the respondent. They worked in the respondent's Sales Department having been employed on different dates. Their ‘employment’ was terminated on December 31, 2015 due to the respondent's operational requirements. They were then paid their dues via a standard letter addressed to all claimants dated February 25, 2016.

2. The appellants claim that they were, during the subsistence of their employment with the respondent, unfairly and unlawfully treated. They therefore brought an action in the Industrial Relations Court (IRC) where they particularised the unfair and unlawful treatment as follows:

i. That they received a monthly salary of K18,200.00 while others on the same grade doing the same work were on K83,000.00 per month;

ii, That they were not given the two bottles of mineral drinks a day given to other employees on the same grade doing the same work;

fii, That they were denied the daily free meals given to other employees on the same grade doing the same work;

iv. That they were not on any medical scheme like other employees doing the same work on the same grade;

v. That they were not put on any pension scheme like the other employees doing the same work on the same grade;

vi. That during the subsistence of their contract of employment with the Respondent they worked through public holidays and never had day offs as provided for under the Employment Act;

vii, That at the termination of their respective contracts of employment they were paid a severance allowance which was not calculated in line with the provisions of the Employment Act and that accordingly there was a shortfall which must be paid to them; and

viii, That they were not paid any gratuity on the termination of their contracts of employment contrary to the provisions of the Employment Act.

3. Claiming that they thereby suffered loss and damage, the appellants sought the following reliefs in the IRC:

i. An order that each appellant should be paid the shortfall on their remuneration for all the years worked;

ii, An order that each appellant should be paid the value of bottles of minerals for all the years worked;

iii, An order that each appellant should be paid the value of the meals for all the years worked;

iv. An order that each appellant should be paid the equivalent ‘of the respondent's contribution towards the medical scheme for all the years worked;

v. An order that each Appellant should be paid the equivalent of the appellant's contribution towards the pension scheme for all the years worked;

vi. An order that the Respondent should pay the Appellants the statutory gratuity the same to be calculated on wages after taking into account the shortfall on the salary, the meal allowance, drinks allowance, and the Respondent's contributions towards the medical and pension schemes;

vii, An order that the Respondent should recalculate the severance pay based on wages after taking into account the shortfall on the salary, the meal allowance, drinks allowance, and the Respondent's contributions towards the medical and pension schemes and should pay the shortfall to the Appellants; and

viii. Any other relief the court deems fit.

4. The IRC found for the appellants and ordered that they be compensated as above.

5. The respondent was not satisfied with the judgment. It appealed to the High Court which allowed the appeal by its judgment of 18" November 2022. The High Court specifically reversed the IRC’s conclusion that the appellants were employees of the Respondent and thus made the issue of terminal benefits totally redundant.

6. The Appellants were not satisfied with the High Court's decision. They appealed to this Court filing in relation thereto the following grounds of appeal.

i. That the High Court erred in law in holding that the appellants were not employees of the respondent within the definition of ‘employee provided for in sections 3(b) of the Employment Act and 2(1) of the Labour Relations Act;

li, That the High Court erred in law by holding that the appellants were independent contractors;

iil, That the High Court erred in law in failing to determine whether the issues raised by the respondent in respect of the release and discharge agreements were properly before the Court for adjudication and further in determining the said issues;

iv. That the High Court erred in law by holding that the release and discharge agreements that were signed by the appellants were not signed under duress; and

v. That the High Court erred in law by failing to hold that the release and discharge agreements amounted to an illegality in that they offended the fundamental principles provided for in sections 5 and 6 of the Employment Act and sections 20 and 31 of the Constitution of the Republic of Malawi.

7. The record shows that the notice of hearing herein was issued and served on the parties on January 10, 2024 for a hearing set for

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