Thewe v Good Samaritan Ministries (IRC MATTER NUMBER 344 OF 2025) [2025] MWIRC 21 (6 October 2025)

sA REPUBLIC OF MALAWI IN THE INDUSTRIAL RELATIONS COURT OF MALAWI PRINCIPAL REGISTRY IRC MATTER NUMBER 344 OF 2025 BETWEEN: OWEN THEWE..………………….….…….….……...……………………………………...APPLICANT AND GOOD SAMARITAN MINISTRIES…………...…………………………………………RESPONDENT CORAM: WYSON CHAMDIMBA NKHATA (DEPUTY CHAIRPERSON) Mr. O. Thewe – Applicant (Present and Unrepresented) Mr. J. Malindi – Respondent (Present and Unrepresented) Mr. F. Zakaria – Court Clerk and Official Interpreter JUDGMENT INTRODUCTION This matter was brought before the Industrial Relations Court of Malawi by the applicant, Mr. Owen Thewe, against his former employer, Good Samaritan Ministries, also known as Victory World Outreach. The applicant alleges that following the end of his employment, the respondent failed to pay him several benefits which he believes were lawfully due to him. The dispute arose after his resignation from the position of administrator at the respondent’s children’s home situated in Blantyre. According to the applicant, he was first engaged by the respondent in November 2002 and served in various capacities, beginning as a primary school teacher, later as head teacher, and finally as administrator. He stated that throughout his service he worked diligently and often beyond normal hours, including weekends and public holidays. Upon resigning in March 2025, he claims he was not paid his gratuity, accumulated leave days, compensation for public holidays worked, overtime pay, and certain months of withheld salary. The total amount claimed stands at fifty-nine million, two hundred sixty-five thousand, seven hundred sixty-five kwacha and seventy-seven tambala. The respondent, through its representative, Mr. Joseph Malindi, denies all the claims and maintains that the applicant was not entitled to the benefits he seeks. It asserts that prior to April 2024, the applicant served only on a voluntary basis and that his formal employment commenced from that date until his resignation in March 2025. The respondent further argues that the applicant was covered under a contributory pension scheme with Old Mutual and that he received all payments due to him, including a severance package Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 1 issued during a transition of management. It also maintains that his resignation was voluntary and uncoerced, and that no salary was withheld at any point. The matter proceeded to a full hearing after an attempt at mediation held on the twelfth day of June 2025 before the Commercial, Industrial and Allied Workers Union failed to achieve a settlement. Both parties were represented during the proceedings, and each had an opportunity to call witnesses and tender documentary evidence. After the hearing, the Court reserved judgment to be delivered on the twenty-second day of September 2025. This judgment therefore arises from a consideration of the evidence presented by both sides and the submissions made in respect of the claims. The central issue before the Court is whether the applicant was entitled to the benefits he now seeks and whether his employment history, as alleged, establishes a basis for the relief claimed against the respondent. EVIDENCE Evidence Adduced by the Applicant During the hearing, the applicant, Mr. Owen Thewe, took the witness stand and testified under oath. He stated that he was employed by the respondent, Good Samaritan Ministries, in November 2002 as a primary school teacher. Over the years, he rose through the ranks, first becoming head teacher in 2007 and later being promoted to the position of administrator in 2013. He explained that Good Samaritan Ministries operates a children’s home under Victory World Outreach and provides education, shelter, and care to orphans. The applicant told the Court that as an administrator, he was required to live within the compound where the children resided. His duties included supervising the welfare of the children and the staff, ensuring discipline, attending to emergencies, and overseeing the day-to-day running of the institution. He said that by the nature of his work, he was required to be present at all times and that his service did not follow fixed hours. He described his employment as one that demanded constant availability, explaining that even during nights, weekends, and public holidays, he was responsible for the welfare of the children and could not leave the premises. He testified that his last salary was three hundred and fifty thousand kwacha per month. According to him, he performed his duties faithfully until he tendered his resignation on 17 March 2025, which was later accepted by the respondent on 19 March 2025. The applicant said that upon resigning, he expected to receive his terminal benefits, but none were paid. He stated that he approached the respondent several times to claim what he believed was due to him but received no satisfactory response. In his evidence, the applicant claimed that he was entitled to gratuity, payment for accrued leave days, compensation for public holidays and overtime worked, as well as salary arrears for months during which he was not paid. He told the Court that he had been paid consistently until June 2020, after which the respondent stopped paying his salary without any explanation. He added that between July 2020 and March 2023 he relied on financial assistance from friends abroad, which was remitted through the same account used by the respondent, since all financial transactions were required to pass through the office. Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 2 Mr. Thewe produced several documents to support his case, including an offer letter dated 30 March 2007, wage sheets showing his name listed among salaried employees, and copies of correspondence that he said demonstrated his long-term engagement with the respondent. He maintained that he was a full-time employee from 2002 until 2025 and that his service during that period entitled him to all the benefits he was claiming before the Court. He also told the Court that he had attempted to seek assistance from the trade union but was only advised to pursue the matter formally through the Industrial Relations Court. He admitted that the organization had not been keeping proper records for overtime or leave days, but argued that this failure was not his fault. He said the institution never gave him an opportunity to rest or go on annual leave, and that he worked continuously throughout his years of service. To support his case, the applicant called two witnesses. The first witness, Mr. Gift Somanje, testified that he was employed by the respondent as a garden boy at the same children’s home. He confirmed that Mr. Thewe worked very hard and was constantly on duty, often remaining within the premises both day and night. He stated that during the time he worked there, employees never had holidays or proper rest days. He said the applicant worked tirelessly attending to the children and that even on Sundays, when others went to church or rested, the applicant was still working within the compound. The second witness, Ms. Ethel Chizumule, also worked at the children’s home. She told the Court that she was initially engaged as a volunteer, but despite that designation, she and others received fixed salaries. She said that the applicant was always present at the home and appeared to be the person in charge of its daily operations. According to her, workers under the program were not given public holidays or annual leave, and they were expected to remain on duty within the compound at all times. She said that although management at one point spoke of transitioning staff into permanent employment, in practice the work and expectations remained the same. The Evidence of the Respondent The respondent’s evidence was presented through its representative, Mr. Joseph Malindi, who testified on behalf of Good Samaritan Ministries, the organisation that operates the children’s home where the applicant had been employed. Mr. Malindi identified himself as the Director of Operations at the Ministry and stated that the institution is a faith-based charitable organisation affiliated with Victory World Outreach, providing shelter, care, and education to orphaned and vulnerable children in Blantyre. He told the Court that the applicant, Mr. Owen Thewe, was engaged as an administrator whose duties included the supervision of staff, coordination of welfare programmes, procurement of supplies, maintenance of discipline within the children’s home, and general oversight of day-to-day operations. According to Mr. Malindi, the applicant’s formal employment with the respondent began in April 2024, following an internal restructuring exercise designed to regularise all volunteer and informal arrangements. Prior to that, the Ministry had operated on a largely voluntary basis, with many workers, including the applicant, serving without formal contracts. When the restructuring was implemented, written contracts were issued and the respondent introduced a monthly payroll system , along with statutory contributions such as pension and tax compliance. Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 3 Mr. Malindi stated that from April 2024 onward, the applicant was paid a monthly salary of K350,000 , which was disbursed at the end of each month. He explained that because of the nature of the institution, certain staff, including the applicant, were accommodated within the premises to ensure immediate response to any emergencies involving the children. He emphasised, however, that being resident on the premises did not mean that the applicant worked around the clock. Instead, he had normal working hours from 7:30 a.m. to 4:30 p.m., with an hour’s break, and weekends were considered rest days unless exceptional circumstances arose. The witness also explained that in January 2025, the Ministry implemented a severance settlement scheme to compensate those who had rendered long service before the April 2024 restructuring. Under that arrangement, the applicant received K1,500,000 as a final settlement for his pre-2024 service. Mr. Malindi tendered a copy of the acknowledgment document bearing the applicant’s signature, confirming receipt of the payment and declaring it as full and final settlement for that earlier period. After the payment, the applicant became a registered member of a contributory pension scheme with Old Mutual , and both employer and employee deductions were made each month. The respondent’s position was that, in law and fairness, the applicant could not receive both gratuity and pension, since the two serve the same purpose. Regarding the end of employment, Mr. Malindi stated that the applicant voluntarily resigned by a letter dated 17 March 2025, which management accepted on 19 March 2025. He said that the resignation came unexpectedly, though the tone of the letter was polite and appreciative. The respondent immediately processed his final dues, which included his March salary and payment for any leave balance. He produced a copy of the resignation letter, the acceptance of resignation, and the payment summary as exhibits before the Court. When asked about the applicant’s allegation that he was forced to resign, Mr. Malindi denied it categorically. He told the Court that there had been a minor disagreement between the applicant and another staff member over the handling of a disciplinary matter involving one of the children, but that the issue had been contained. Management had counselled both parties and encouraged reconciliation. Before the matter could be concluded, however, the applicant abruptly tendered his resignation. Mr. Malindi said that management respected his decision and processed his departure without hostility. He stated that at no point was the applicant demoted, suspended, or denied the right to perform his duties. Mr. Malindi also rejected the applicant’s claims regarding unpaid salaries. He testified that all employees, including the applicant, were paid regularly at the end of each month, and that the applicant himself signed off on staff salary sheets as part of his administrative functions. The respondent maintained clear payroll records, and there was no evidence of arrears. Mr. Malindi said it would have been impossible for any employee, much less a senior administrator, to work for fifty-seven months without pay and yet remain silent. He added that the applicant’s resignation letter made no reference to unpaid salaries, which confirmed that there were none. With regard to leave and overtime, Mr. Malindi stated that the applicant, as a managerial employee, was not entitled to overtime pay under the terms of his contract. He explained that overtime benefits applied only to junior staff working under fixed hourly schedules. The applicant’s position required flexibility and occasional availability outside normal hours, but this was inherent in the role, not compensable as overtime. He further testified that the applicant had taken some annual leave in 2024 , and that staff leave forms submitted into evidence bore his name among those who had been granted time off. The claim of thirteen Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 4 years of untaken leave, said Mr. Malindi, was unrealistic and contrary to the institution’s established practice. He stated that the Ministry maintained a humane and faith-based work culture and would never require an employee to work continuously without rest. Mr. Malindi also commented on the claim for work on public holidays, explaining that while the children’s home remained operational throughout the year, active work by administrative staff was not required every day. The applicant’s mere presence within the premises did not amount to work, as he was not expected to perform duties on every holiday. If emergencies arose, the respondent relied on a duty roster that distributed responsibilities among available staff. When cross-examined, Mr. Malindi maintained his composure and repeated that the applicant’s employment became formal in April 2024 following the restructuring exercise. He agreed that the applicant had been associated with the institution before that date, but he emphasised that earlier work was under a voluntary arrangement, not a contract of service. He was firm that the applicant had been paid all his dues, and that any payment made in January 2025 was intended to settle all earlier claims once and for all. Counsel for the applicant pressed him on whether the applicant had complained of mistreatment prior to resignation, but Mr. Malindi responded that no formal grievance was ever lodged. He added that the respondent had an internal grievance mechanism, and that the applicant, being part of management, was well aware of it. When further questioned about whether the applicant’s authority had been curtailed after restructuring, Mr. Malindi denied any deliberate sidelining. He explained that the restructuring merely introduced new reporting channels and redistributed some administrative functions for better accountability, not to diminish the applicant’s role. He said that the applicant remained part of the leadership team until his resignation. Mr. Malindi rejected the suggestion that the applicant’s resignation was provoked or engineered, saying it was voluntary and peaceful. He concluded by reiterating that the respondent had fulfilled all its obligations to the applicant and that the claims before the Court were baseless and exaggerated. THE LAW AND APPLICABLE LEGAL PRINCIPLES The starting point in this matter is the Constitution of Malawi. Section 31 guarantees every person the right to fair and safe labour practices and to fair remuneration, while section 43 guarantees the right to lawful and procedurally fair administrative action supported by reasons. These constitutional guarantees form the foundation of employment law in Malawi and are particularly relevant where workers allege that they have been denied lawful entitlements and subjected to unfair labour practices. The Employment Act (Cap 55:01) supplements these constitutional protections by defining an employee in broad terms as any person who performs work under the direction of an employer, regardless of the form of the contract. The Labour Relations Act (Cap 54:01) reinforces the same principle by insisting on fairness and balance in industrial relations, and by requiring disputes about the true nature of employment relationships to be resolved through the mechanisms of this Court. The jurisprudence of the Industrial Relations Court has developed clear guidance on when workers who are labelled as casuals must, in law, be recognised as permanent employees. In Kandoje v Malawi Housing Corporation, IRC Matter No. 23 of 2003 , the Court explained that a casual worker is one who is free to Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 5 decide whether or not to report for work on any given day, and whose employer is equally free to hire or not to hire them. The Court went on to hold that where the work is regular and continuous, and where both employer and employee are under mutual obligations such as the employee to report and perform specified duties, and the employer to provide work and pay a wage, the relationship cannot remain casual but matures into permanent employment. The same principle was affirmed in Kayira and Five Others v Malawi Telecommunications Limited, IRC Matter No. 16 of 2015, where the Court held that continuity and regularity of work, coupled with absence of genuine choice in reporting, meant that the claimants had in reality been permanent employees despite the employer’s insistence on describing them as casual labourers. DETERMINATION The Court has carefully considered the evidence adduced by both parties and the documents tendered in support of their respective positions. The testimony of the applicant and his witnesses was consistent on the central claim that he worked for the respondent continuously from 2002 to 2025, that his duties were permanent and regular, and that he was not paid the benefits he believes accrued during that period. The respondent, on the other hand, maintains that the applicant only became a full-time employee in April 2024 following a formal reorganisation and that all entitlements due under that arrangement were fully paid upon his resignation in March 2025. In resolving the issues before it, the Court is required to assess not only the factual record but also the legal framework governing employment relations in Malawi. The matter touches on fundamental questions regarding the nature of employment, the distinction between voluntary or casual service and formal employment, and the fairness of the respondent’s conduct in relation to the applicant’s claimed benefits. These questions lie at the heart of employment law and demand a careful application of both constitutional and statutory principles, together with the guidance found in the Court’s own precedents. The starting point for the Court’s analysis is therefore the Constitution of Malawi, which establishes the right to fair and safe labour practices and the right to fair remuneration. These rights are reinforced by the Employment Act and the Labour Relations Act, both of which promote equity, accountability, and the protection of workers against unfair labour practices. The jurisprudence of this Court has consistently underscored that substance must prevail over form, and that where a person has performed regular and continuous work under the control of another, such a person must be treated as an employee regardless of the terminology adopted by the employer. Against this background, the Court will now examine the evidence in light of these legal principles to determine, first, whether the applicant’s service prior to April 2024 constituted employment within the meaning of the law, and second, whether the benefits claimed namely gratuity, leave pay, overtime, public holiday pay, and withheld salary are lawfully due to him. The Court will also consider whether the applicant’s resignation was voluntary or constructive in nature, and whether the respondent’s handling of the employment relationship met the standards of fairness required by law. Determination on the First Issue The first and most fundamental question before the Court concerns the period of the applicant’s employment. The applicant contends that he entered into employment with the respondent as early as Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 6 November 2002, and that his service continued uninterrupted until his resignation in March 2025. The respondent, on the other hand, maintains that although the applicant had some prior association with the institution, his formal employment began only on 1 st April 2024 when the organization restructured and issued new contracts to all its workers. This issue is of central importance because the resolution of the remaining claims depends on the period of recognised employment. The evidence on record shows that the applicant produced a letter of contract dated 1st March 2007, signed by the Director of the Good Samaritan Children’s Home, Ms. Thandie Chikufenji, and accepted by the applicant on 18th July 2007. The letter expressly refers to “contract employment for one year renewable with effect from 1 st January 2007,” and sets out terms including salary, leave entitlement, severance pay, and notice period. It also attaches a job description for the position of Primary School Teacher, which places the applicant under the supervision of the Director and assigns him academic and administrative duties within the home. This document provides clear evidence that as of 2007, the applicant was not a mere volunteer but a contracted employee of the respondent. The presence of a written contract, salary, specified leave days, and an obligation of reporting and accountability all point to the existence of a legally cognizable employment relationship within the meaning of section 4 of the Employment Act (Cap 55:01) . The respondent’s own records therefore contradict its assertion that the applicant’s formal employment commenced only in April 2024. The Court also notes that the respondent produced a Consent Agreement dated January 2025 in which the parties acknowledged payment of K1,500,000.00 as “full and final severance settlement for the services rendered to the Ministry before 1 April 2024”. This document was signed by the applicant, the Human Resource Manager, and the accountant of the Ministry, and bears an official stamp dated 29 January 2025. The wording of that agreement is particularly significant. By recognising that the payment was made “for the services rendered… before 1 April 2024,” the respondent itself implicitly accepted that the applicant had in fact rendered services to the Ministry prior to that date. The agreement does not deny the existence of earlier employment; it only purports to settle any claims arising from that earlier period. In light of this, the Court finds it untenable for the respondent to now insist that the applicant’s formal employment began only in April 2024. The documentary evidence, coupled with the oral testimony of both the applicant and his witnesses, establishes that he had been in the continuous service of the respondent from at least 2007, and likely earlier, notwithstanding periodic administrative reorganisations and changes in management. The letter of final settlement dated 25 March 2025, signed by the respondent’s Human Resource Manager, Mr. Joseph Malindi, further reinforces this conclusion. That letter itemises the applicant’s final dues following his resignation, including basic pay, leave days, and statutory deductions, and bears the stamp of the respondent’s institution. It demonstrates that the applicant was treated as an employee within the respondent’s payroll system and that his terms of engagement were governed by employment law rather than by voluntary or missionary arrangements. The Court takes judicial notice of its earlier decisions, including Kandoje v Malawi Housing Corporation (IRC Matter No. 23 of 2003) and Kayira and Five Others v Malawi Telecommunications Limited (IRC Matter No. 16 of 2015), where it was held that regularity and continuity of work, coupled with the existence Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 7 of mutual obligations, transform an ostensibly casual or voluntary arrangement into a permanent employment relationship. Applying those principles to the present case, it is evident that the applicant’s long and regular service, combined with his performance of core administrative and educational duties under the supervision and control of the respondent, meets the statutory definition of an employee. The respondent’s argument that the applicant was a “volunteer” before April 2024 cannot withstand scrutiny. Volunteers, by definition, are individuals who perform services without an expectation of remuneration. Yet the documentary record here shows that the applicant was paid a monthly salary, was entitled to leave, and received severance pay under successive contractual arrangements. These features are inconsistent with a voluntary relationship. Even if donor funding occasionally supplemented or facilitated payment, the existence of external sponsorship does not negate the employment relationship between the applicant and the institution. What matters is that the applicant’s labour was rendered in exchange for remuneration and under the authority of the respondent. The Court also observes that the respondent’s own correspondence with its foreign donors, notably the letter from Pastor Chris Birke of Charlestown Independent Church in the United States, confirms that the workers at the orphanage were understood by donors to be salaried employees receiving sponsorship “in addition to their salaries.” That letter, dated in 2023, explicitly complains that workers were no longer receiving the sponsorship allowances previously remitted to them, thereby acknowledging that they were already on payroll and that sponsorship was supplementary, not substitutive. This corroborates the applicant’s evidence that he and others were paid employees whose remuneration was sometimes supported by donor contributions. For these reasons, the Court finds that the applicant’s engagement with the respondent constituted employment within the meaning of the Employment Act, and that such employment commenced well before April 2024. While the precise start date may not be precisely documented for the earliest years, the existence of a written contract from 2007 and continuous service thereafter provide sufficient proof of long- term employment. The Court therefore holds that the applicant was an employee of the respondent from at least 1 January 2007 until his resignation on 19 March 2025. The Court accordingly rejects the respondent’s assertion that employment commenced only in April 2024. The respondent’s own records, including the 2007 employment contract and the 2025 severance agreement, conclusively establish the applicant’s status as an employee long before the alleged date of formalization. The period of recognized employment for purposes of determining benefits shall therefore extend from 1 January 2007 to 19 March 2025. Whether the Applicant’s Resignation Was Voluntary or Constituted Constructive Dismissal The second issue before the Court is the true nature of the applicant’s departure from employment whether he resigned voluntarily or whether, as he contends, his resignation amounted in law to a constructive dismissal. This question requires a careful examination of the surrounding circumstances, the conduct of both parties leading to the separation, and the applicable legal principles governing constructive termination. It is common cause that the applicant tendered a written resignation on 17 March 2025. The letter was brief, cordial, and expressed appreciation for the opportunity to serve under the respondent. It did not contain any Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 8 complaint, allegation of unfair treatment, or expression of distress. The respondent accepted the resignation two days later, on 19 March 2025, and subsequently prepared and issued a letter of final settlement dated 25 March 2025, setting out the applicant’s terminal dues. The entire separation process was orderly, documented, and unaccompanied by protest. In his testimony before this Court, the applicant stated that while he did indeed resign, he was compelled to do so because his working conditions had become intolerable. He said that following the institutional restructuring of April 2024, he was gradually sidelined from administrative responsibilities, his decisions were routinely countermanded, and his authority as administrator was undermined. He claimed that this marginalisation made it impossible for him to function effectively, leaving him with no option but to resign. The respondent, represented by Mr. Joseph Malindi, rejected this narrative and maintained that the applicant resigned on his own accord. It was explained that the applicant had a personal misunderstanding with a colleague, one Mr. Chinyama, which caused tension within the office. According to the respondent, management counselled the applicant and encouraged him to continue working, but he insisted on resigning. The respondent testified that it merely accepted a decision the applicant had already made and that there was no attempt to force him out or to frustrate his continued employment. The law on constructive dismissal is well established, and this Court has consistently applied it with caution. The leading authority is Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 (CA), which laid down the principle that constructive dismissal occurs when an employer’s conduct amounts to a fundamental breach of contract, going to the root of the employment relationship, thereby entitling the employee to regard themselves as dismissed. The test is not subjective but objective whether the employer’s conduct was so unreasonable that a reasonable person in the employee’s position would have felt compelled to resign. This principle was adopted and applied by the Malawi Supreme Court of Appeal in Malawi Telecommunications Ltd v Makawa & Another [2007] MWSC 2, where the Court held that for a resignation to amount to constructive dismissal, the employer’s conduct must be such that it effectively drives the employee out of employment. The Supreme Court emphasised that not every disagreement or frustration amounts to constructive dismissal; there must be a serious breach of an essential term of the contract or of the implied obligation of mutual trust and confidence. In Joan Kadzanja v Airtel Malawi Ltd (MSCA Civil Appeal No. 16 of 2018), the Supreme Court reiterated that constructive dismissal arises where the employer’s cumulative conduct such as humiliation, demotion, or sustained frustration makes continued employment intolerable. However, the Court also observed that where an employee resigns out of dissatisfaction, personal preference, or interpersonal conflict, that does not meet the legal threshold for constructive dismissal. This Court has restated the same principle in a line of decisions including Chitsulo v Malawi Revenue Authority (IRC Matter No. 22 of 2006), Amani v NICO Life Insurance Co. Ltd (IRC Matter No. 5 of 2012), Kandikole v Zodiak Broadcasting Station (IRC Matter No. 232 of 2016), and Chawinga v National Bank of Malawi (IRC Matter No. 246 of 2017) . In these decisions, the Court underscored that the essential test is whether the employer’s actions amounted to a repudiation of the employment contract. Mere unhappiness, disagreements, changes in management style, or a strained working relationship do not suffice. Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 9 Applying these principles to the evidence before this Court, it is clear that the applicant’s situation, while uncomfortable, did not reach the level of intolerability required to justify a finding of constructive dismissal. The applicant’s own evidence does not demonstrate that the respondent breached any fundamental term of his contract. He was not demoted, suspended, or denied salary. There was no disciplinary sanction, reduction in benefits, or official interference with his position. The administrative changes he complained of appear to have been institutional adjustments following the April 2024 restructuring rather than targeted actions intended to force him out. The Court also finds it significant that the applicant did not raise any formal grievance with management, despite the existence of internal mechanisms for doing so. Nor is there evidence that he sought the intervention of his trade union before tendering his resignation. His decision to resign appears to have been sudden and final, consistent with a personal choice rather than a reaction to unbearable conditions. The applicant’s demeanor, as reflected in the record, suggests not a man cornered by hostility but one who had grown weary of the situation and decided to move on. The respondent’s swift acceptance of his resignation and the subsequent settlement of dues do not, by themselves, imply coercion; they simply indicate procedural efficiency. There was no delay, argument, or attempt by the respondent to terminate his services unilaterally. Furthermore, there is no evidence that after resignation the applicant attempted to withdraw it, complained of coercion, or sought reinstatement. In cases of genuine constructive dismissal, employees often communicate protest, seek redress, or otherwise record their objection. The absence of any such action here further reinforces that the resignation was voluntary. While the Court acknowledges that the applicant may have felt unappreciated or excluded following managerial changes, those feelings, however genuine, do not equate to constructive dismissal. Employment relationships often involve tension, adjustment, and occasional disagreement. The law does not guarantee a conflict-free workplace; it guarantees fairness and protection against conduct that makes employment impossible to continue. In the present case, the Court finds no evidence of such conduct. There was no proof of malice, harassment, or intentional acts designed to undermine or drive out the applicant. The restructuring and subsequent redistribution of roles may have altered the scope of his authority, but such managerial discretion does not, without more, amount to a breach of contract. Accordingly, the Court finds that the applicant’s resignation was a voluntary act, freely and consciously made. It cannot be said that the respondent made continued employment intolerable or breached the implied term of mutual trust and confidence. The employment relationship therefore ended at the initiative of the applicant and not through constructive dismissal. This finding has two implications. First, the applicant is not entitled to remedies that arise from unfair dismissal, since the termination was self-initiated. Second, he remains entitled to any terminal benefits or statutory dues properly accruing from his service up to the date of resignation. The Court will therefore proceed to consider whether such benefits in particular gratuity and related claims are payable under the terms of his employment and applicable law. Whether the Applicant Is Entitled to Gratuity, and How It Should Be Computed Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 10 The third issue for determination is whether the applicant is entitled to gratuity, and if so, how such entitlement should be computed in view of the severance and pension arrangements that governed his employment. The applicant claims that he served the respondent from 2002 until 2025 and that he is therefore entitled to a gratuity of ten percent of his monthly salary for each month of service. He argues that his long and faithful service, coupled with the nature of his duties, entitles him to this payment as part of his terminal benefits. The respondent denies that any gratuity is due. It maintains that the applicant was a member of a contributory pension scheme managed by Old Mutual and that he already received a lump-sum payment described as “severance settlement” for the period prior to April 2024. The respondent’s position is that the applicant cannot lawfully receive both gratuity and pension for the same period of service. The starting point is the Employment Act. The Act does not create a general or automatic right to gratuity. Gratuity is a contractual benefit, payable only where it is provided for in an employment contract, collective agreement, or consistent institutional policy. The Act distinguishes gratuity from severance pay and pension. Severance pay is a statutory entitlement that arises under section 35 of the Act when employment ends through retrenchment, redundancy, or unfair dismissal, while gratuity and pension are contractual or scheme-based benefits designed to reward long service. In reviewing the evidence, the Court notes that the applicant’s 2007 employment contract provided for a salary, leave entitlement, and other conditions of service, but it did not include any clause granting him gratuity. There is also no written policy from the respondent indicating that its employees were entitled to gratuity upon completion of service. What the evidence does show is that on 29 January 2025, the applicant signed a written consent agreement acknowledging payment of K1,500,000.00 as a final severance settlement for services rendered before 1 April 2024 . This document was signed by the applicant and witnessed by both the Human Resource Manager and the Accountant of the respondent. The document expressly stated that the payment was in full and final settlement of benefits for the earlier period of service. There is no evidence that the applicant was misled, coerced, or otherwise induced to sign that agreement. He accepted payment, continued to work thereafter, and did not raise any protest until after his resignation. The Court therefore finds that this document constituted a valid and binding settlement of all claims arising from the applicant’s service before April 2024. After April 2024, the applicant became a registered member of a contributory pension scheme with Old Mutual, under which monthly deductions were made from his salary. It is not disputed that the respondent also contributed its portion to the same scheme. Under Malawian labour law and accepted industrial practice, once an employee is covered by a contributory pension scheme, that employee is not entitled to gratuity for the same period of service. The reason is that both benefits serve the same purpose to provide post-employment financial security and the law avoids double compensation. This Court has in several decisions reiterated that gratuity is only payable where it is specifically provided for in the contract or established by consistent practice. In cases such as Noemi Sichinga v University of Malawi (2023) and Pearson January v Capital Oil Refining Industries (2024) , the Court observed that gratuity is not presumed merely from long service or dedication; it must rest on clear contractual or Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 11 institutional provision. In both those decisions, claims for gratuity were dismissed where the employees were already beneficiaries of pension or severance arrangements. Applying that reasoning to the present case, the Court finds that the applicant’s employment after April 2024 was fully covered under the pension scheme. The earlier period of service prior to April 2024 was conclusively dealt with through the January 2025 severance payment, which the applicant accepted without objection. The Court therefore finds no legal or contractual basis for a further claim to gratuity. In industrial relations, fairness must be balanced with contractual certainty. Employers should honour genuine entitlements, but employees must also respect settlements they have voluntarily entered into. Having accepted a severance payment for the earlier period and contributed to a pension scheme thereafter, the applicant cannot now claim an additional gratuity covering the same years of service. Accordingly, the Court finds and declares that the applicant is not entitled to gratuity as claimed. The payment made in January 2025 extinguished any claim for the pre-2024 period, and his participation in a pension scheme covers the subsequent period until his resignation in March 2025. This finding, however, does not affect the applicant’s right to pursue other statutory or contractual benefits, such as accrued leave, overtime, or withheld salary, if evidence establishes that such benefits were due and remain unpaid. These matters are addressed in the next issue. Whether the Applicant Is Entitled to Payment for Accrued Leave Days, Public Holidays, and Overtime The next issue concerns the applicant’s claims for payment of accrued leave days, compensation for work performed on public holidays, and overtime. In his testimony, the applicant told the Court that during the entire period of his service with the respondent, he was never afforded annual leave, nor was he granted rest on public holidays. He stated that because he was responsible for the day-to-day administration of the children’s home, he was constantly required to be on duty to attend to emergencies and oversee the welfare of the children. According to him, this constant demand for attention meant that he effectively worked every day, including weekends and holidays. He described the institution as one that never slept, and argued that the absence of rest or leave for such a prolonged period entitled him to monetary compensation in lieu of the leave, public holidays, and overtime allegedly worked. The respondent’s position was entirely different. Through the testimony of Mr. Joseph Malindi, the Court was told that the institution operated on a structured schedule where staff worked from 7:30 in the morning to 4:30 in the afternoon, with a one-hour lunch break in between. Saturdays and Sundays were ordinarily days of rest, save for exceptional cases where certain staff were required to attend events or accompany the children to church. It was explained that the applicant’s role as an administrator was primarily supervisory and managerial. As such, he was not an hourly worker entitled to overtime but a salaried officer whose responsibilities sometimes required presence beyond the formal working hours. The respondent therefore denied that the applicant was ever entitled to overtime, or that he accumulated unpaid leave for more than a decade. Mr. Malindi testified that leave was routinely granted to staff and that the applicant himself, being in charge of administration, was responsible for processing and approving leave rosters. He could therefore not credibly claim to have worked continuously for over ten years without taking rest. Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 12 The applicable law is found in the Employment Act, which provides that every employee who has completed twelve consecutive months of service is entitled to at least fifteen working days of paid annual leave. The Act also recognises public holidays as days of rest, save for cases where the nature of work requires service on such days, in which event compensatory rest or pay may be agreed between the parties. Overtime is likewise regulated by the Act, which requires that work performed in excess of normal hours must be compensated at a premium rate. However, this applies primarily to employees whose remuneration is calculated by the hour or by reference to fixed working periods. The Court notes that the Act places the burden on the claimant to prove that such work was actually performed and that no compensation or rest was provided in respect thereof. The evidence before the Court does not support the applicant’s sweeping claims. While it is true that work at the children’s home could be demanding, there is no record showing that the applicant applied for leave and was denied it. The applicant did not produce any documentary proof of outstanding leave, nor did he bring forward attendance records or payslips showing unpaid overtime. His witnesses, Gift Somanje and Ethel Chizumule, confirmed that staff at the children’s home worked hard and were often on duty, but their testimony remained general and lacked the specific detail necessary to quantify the alleged entitlements. Neither witness could identify the precise number of days the applicant worked without rest, nor could they confirm that the respondent expressly refused to grant him leave. The respondent, in contrast, produced evidence indicating that leave records were maintained and that the applicant’s name appeared on staff rosters for leave taken during the period of service in 2024 and 2025. Although these records did not cover the earlier years that the applicant claimed, they demonstrate that the respondent had an established practice of granting leave and that it was not institutionally opposed to employees taking time off. The Court finds it implausible that an administrator of the applicant’s seniority could have been denied rest for thirteen years while himself being responsible for managing staff leave schedules. In similar cases, this Court has consistently held that claims of long-term accumulation of leave must be proved by clear and convincing evidence, since it is inherently unlikely that an employer would keep a worker continuously on duty without relief over such an extended period. As for the alleged work on public holidays, the Court is not satisfied that the applicant was required to perform specific duties on those days. His residence within the institution’s premises may have created the impression of constant presence, but presence alone does not amount to active work. No records or testimony were provided to show that he was formally instructed to work on public holidays or that he performed measurable tasks for which he was not compensated. Without such evidence, the Court cannot infer that every holiday during his tenure was spent in active service. The claim for overtime similarly fails on the evidence and on the law. Overtime pay presupposes the existence of fixed working hours and a contractual obligation to remunerate excess hours worked at a higher rate. The applicant’s position as administrator was not one of hourly labour but of managerial responsibility. His remuneration was a fixed monthly salary of K350,000, which compensated him for the full scope of his administrative functions, including any periods of extended availability. The law and established industrial practice in Malawi recognise that senior employees who occupy managerial or supervisory roles are generally excluded from overtime provisions unless the contract expressly provides otherwise. The applicant’s contract did not contain such a clause. The Court therefore accepts the respondent’s argument that his responsibilities, while demanding, did not create an entitlement to overtime pay. Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 13 On the totality of the evidence, the Court is not persuaded that the applicant’s claims for leave, public holidays, and overtime are supported either in fact or in law. His evidence was broad, imprecise, and unsupported by records capable of establishing the exact quantum of the alleged entitlements. The respondent, on the other hand, demonstrated that leave was regularly granted, that the applicant’s role was managerial in nature, and that his remuneration structure did not include an overtime component. The Court therefore concludes that the applicant’s claims under this head are unproven. While the Court acknowledges that the applicant’s service was undoubtedly demanding and that his dedication to the children’s home was significant, entitlement to monetary compensation must rest on evidence, not sentiment. The law requires that such claims be clearly substantiated by records or credible corroboration. In the absence of that, the Court cannot speculate or award damages based on conjecture. The Court accordingly finds that the applicant is not entitled to payment for accumulated leave days, public holidays, or overtime. The Court nonetheless observes that institutions such as the respondent, which depend heavily on residential staff and continuous operations, must ensure proper documentation of leave schedules and working hours to prevent future disputes. This finding having been made, the Court now turns to the final question in this matter, which concerns the applicant’s claim for withheld salary. Whether There Was Any Unpaid Salary or Remuneration During the Applicant’s Employment The final issue concerns the applicant’s allegation that the respondent unlawfully withheld his salary for a period of fifty-seven months. This is a serious claim, and the Court has approached it with careful attention to both the pleadings and the evidence. The applicant asserted that for nearly five years he continued to work but did not receive his wages. He alleged that the respondent failed to honour its obligation to pay him regularly and that despite repeated demands, the situation was never rectified. He therefore sought a declaration that he was entitled to the withheld wages, which he quantified at K19,950,000. The respondent rejected this allegation entirely. It maintained that the applicant was at all material times paid his full monthly salary, either in cash or through bank transfers, up to the date of his resignation. The respondent stated that its payroll records were available and that none of them reflected any outstanding salaries due to the applicant. The Court was told that from April 2024 onwards, when the institution reorganised its administrative system and introduced payroll management through the finance office, payments were made consistently at the end of every month. The respondent also pointed out that the applicant himself was responsible for signing off salary sheets during his tenure as administrator, which made it improbable that he would have failed to notice, record, or formally complain about unpaid wages if indeed they had not been forthcoming. In assessing this issue, the Court began with the elementary principle that wages are the most fundamental obligation of an employer and that non-payment, if proved, amounts to a serious breach of contract. The Employment Act makes it clear that remuneration must be paid promptly and regularly. Section 47 specifically provides that wages are due at the end of each period of work agreed between the parties, and that failure to pay constitutes an offence. However, like all claims, the burden of proving non-payment lies upon the party asserting it. The applicant must show, on a balance of probabilities, that wages were withheld or that there exists a definite period for which he was not remunerated. Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 14 The Court has carefully considered the applicant’s testimony and found it general in nature. He did not produce any payslips, bank statements, or correspondence demonstrating that specific months went unpaid. His assertion of fifty-seven months without salary appears to be based on estimation rather than documentation. There is also no evidence that he ever lodged a complaint with the labour office or the respondent’s board during the alleged period of non-payment. On the contrary, the respondent’s witness, Mr. Malindi, explained that salaries were paid regularly and that the applicant, as part of management, was himself responsible for ensuring that staff were paid. It was inconceivable, said the witness, that the applicant could have continued to work for nearly five years without pay, yet remain silent and continue to sign off payroll documents. The Court finds that explanation credible. It is highly improbable that an employee occupying a managerial role and living within the premises of his employer could have gone without salary for such a long period without taking any formal action, whether through internal channels, the union, or the labour office. Human conduct and industrial logic alike suggest that such a scenario is implausible. Furthermore, the respondent’s records and the testimony of other witnesses confirm that the institution maintained regular monthly disbursements to its staff during the entire period in question. Even if there had been occasional delays in disbursement which can occur in charitable or donor-funded institutions there is no evidence that any salary was permanently withheld or that arrears accumulated to the extent claimed. Occasional administrative delay does not amount to withholding of wages under the law. The applicant’s claim that he was unpaid for fifty-seven months is therefore not only unsupported by evidence but also inconsistent with the ordinary course of employment. The Court also considers the context of the applicant’s departure. His resignation letter, dated 17 March 2025, makes no reference to outstanding wages. It is polite and expresses appreciation for the opportunity to have served. Had he been owed nearly twenty million kwacha in unpaid salary, it is inconceivable that he would have resigned quietly without mentioning such a substantial debt. His silence at that stage and in the correspondence that followed indicates that the claim of withheld wages emerged only after the employment relationship had ended, and likely as an attempt to enhance the scope of his monetary claim. On a balance of probabilities, the Court is satisfied that the applicant received his salary throughout his employment. The allegation of withholding of wages is therefore unsubstantiated. The Court accordingly finds that there was no breach of the employer’s duty to pay wages. While the Court appreciates that the applicant may have experienced frustrations associated with administrative changes, it must be emphasised that allegations of unpaid salaries require precise and credible evidence. Such claims cannot rest on broad assertions or retrospective calculations unsupported by records. The law demands proof of specific months of non-payment, verified through documentation or corroborative testimony, none of which has been presented in this case. The Court therefore finds that the applicant was duly remunerated throughout his employment, that no salary was unlawfully withheld, and that his claim for arrears of K19,950,000 cannot be sustained. CONCLUSION Having examined the evidence in its entirety and applied the relevant legal principles, the Court finds that the applicant was an employee of the respondent, but his recognised employment commenced in April 2024 Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 15 when he was formally integrated into the institution’s structured payroll and pension system. The Court further finds that his resignation in March 2025 was a voluntary act and not the result of any constructive dismissal. The allegations of mistreatment or coercion were not substantiated, and the evidence shows that he chose to leave of his own accord. The Court also finds that the applicant’s claim for gratuity has no legal foundation, as he was already covered under a contributory pension scheme and had previously received a severance payment in January 2025 that conclusively settled benefits for his earlier period of service. On the remaining claims for accrued leave, public holidays, overtime, and withheld salary, the Court finds that they were not supported by credible evidence. The applicant, as a managerial employee, was not entitled to overtime pay, and his assertions of unpaid leave and withheld wages were broad and unsubstantiated. Accordingly, the Court dismisses the applicant’s claims in their entirety for lack of merit. Any party dissatisfied with this decision has the right to appeal to the High Court within thirty (30) days from today. It is so ordered. DELIVERED THIS 6TH DAY OF OCTOBER 2025 WYSON CHAMDIMBA NKHATA DEPUTY CHAIRPERSON Owen Thewe v Good Samaritan Ministries, IRC Matter No. 344 of 2025 Page 16