Madise (S) v ESCOM - Matter No. 293 of 2002 (293 of 2002) [2002] MWIRC 2 (01 January 2002);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

BLANTYRE REGISTRY

MATTER NO. IRC 293 OF 2002

BETWEEN:

SUNDUZWAYO MADISE ……………………………… APPLICANT

 AND

ESCOM ………………………………………………… RESPONDENT

CORAM:    R. Zibelu Banda(Ms.), Deputy Chairperson

Chalamanda, Counsel for Applicant

Respondent not Present

Galauka, Court Clerk

 RULING

This is an ex parte application for an urgent interim relief made under Rule 25 (1) m (i) of the Industrial Relations Court (Procedure) Rules. The applicant is seeking an order that he be reinstated or that his privileges as an employee of respondent be restored to him.

After reading the affidavit of counsel in support of the application and after having recourse to other relevant law and material on the subject, I make the following   findings:

1.     An application for urgent interim relief by its nature must be made expeditiously. There is no specific procedure in the Labor Relations Act  1996, on the period within which to file such application. However, from practice in this court, see generally Veronica Chinkondenji v. Malawi Stock Exchange Limited (Industrial Relations Court, (IRC) Matter no. 40 of 2002, unreported), and procedure from other jurisdictions with comparable legal systems to ours, it is clear that such applications must be made expeditiously. For instance, in England, such application should be made before the end of seven days following the effective date of termination of services. (Croner’s Employment Law Bulletin, (October 1992) D149.

Services of the applicant were terminated with effect from 1st July 2002. I am not convinced that the applicant was too busy to file this application before now. It took him a whole month and some days to lodge this application.

2    It is trite law that in applications for urgent interim relief as sought by applicant, it must be shown that the applicant has a good chance of succeeding at the main hearing for unfair dismissal. I however cannot determine whether the applicant has a good chance of succeeding in the main action on the following grounds:

2.1       The respondents were not served with notice of this application.

2.2       The respondents were not given a chance to appear in these proceedings and be heard on the applicant’s application.

The applicant is seeking an order, under general discretionary powers of the court, as provided in Rule 25 (1) m (i) of the Labour Relations (Procedure) Rules which, in essence states as follows:

         “ ..the court may on application or of its own motion  at any time; grant an interim relief pending a decision by the court after hearing;”

In the absence of specific rules of procedure in such application the court must endeavour to handle the case with fairness and equity. In my view, this can be achieved by affording both parties the right to be heard on the matter.

The respondents were not served with  notice of hearing. Although there is no specific procedure on the requirement for notice, consideration should be made to the nature of the relief sought. The applicant seeks to go back to work, justice would demand that the other party should be aware of such application through service of notice.

Further, justice would demand that before a court makes such order it should afford the other party the right to be heard on the matter. This view is supported by the procedural requirements in injunctions, which, are similar orders to this application. In such applications, this court demands that the other party be served and given at least 48 hours before hearing. It  is also a requirement that the respondent must be heard on the application,  (section 54 of the Labour Relations Act.)  I am inclined to use this practice and procedure and the procedure used in other comparable jurisdictions.

Finally, it is clear that the application fails to satisfy minimum procedural requirements for fair hearing and practice used in this court. Granting the order sought by the applicant would be tantamount to defeating the objectives of the Labour Relations Act 1996. In this respect, Rule 25 (4) of the said Act states that;

“in the exercise of its powers and discretion and in the performance of its functions, the court may act in such manner as it may consider expedient in the circumstances in order  to achieve the objectives of this Act..” (Rule 25 (4))

In view of the above findings therefore, I dismiss this application in its entirety.

Pronounced in chambers this……day of……………2002 at LIMBE.                                           

R. Zibelu Banda (Ms.)

DEPUTY CHAIRPERSON