Tengani v PG Industries(Mw) Ltd - Matter No. 148 of 2000 (148 of 2000) [2002] MWIRC 22 (19 July 2002);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

MATTER NO. IRC 148 OF 2000

 BETWEEN:

 MOLENI TENGANI ……………………………………… APPLICANT

 AND

 P.G. INDUSTRIES (MW) LTD ………………………… RESPONDENT

 CORAM

 R. Zibelu Banda (Ms) Deputy Chairperson

Chalamanda, Counsel for Respondent

Mwafulirwa, General Secretary for Malawi Congress

of Trade Union assisting the Applicant

Ngalauka, Court Clerk

 RULING

This is a case under the Workers’ Compensation Act. The facts are that the applicant was employed by P.G. Industries Limited in 1969 in the mirror making section. In 1973 he was involved in an accident in the course of his employment. He was taken to hospital where he was treated. The degree of  permanent incapacity was assessed at 20%.

In 1975, the applicant was paid full compensation for the injury. The respondents submitted and tendered in this court a payment voucher in the sum of Malawi Kwacha 374.40, paid on 30 August 1975( exhibit RP2).

Nineteen  years later in 1994, the applicant was sent back to the hospital for examination. At this second visit to the hospital, he was re-examined and his condition was discovered to have worsened. His degree of permanent  incapacity was assessed at 70%.

 He went back to P.G. Industries where he submitted his medical report. The employer was not satisfied with the results. Especially, since the applicant had had an earlier examination in 1975 which put his degree of incapacity at 20%.

The employer sought clarification from the Labour Office and the department of workers compensation. The employer sought clarification on the new assessment of the applicant’s condition in a letter of 2nd June, 1995 signed by A.A. Singano and letter of 5th September, 1995 signed by E. Patel. The clarification was provided in the form of a medical report of 26th October, 1994 and an accompanying note from a medical doctor, Dr Mateus of 26th August, 1997 and also a letter from the labour officer of 22nd June, 1995 signed by F.F. Gonani.

 Of interest is a letter written on 26th February, 1999 by A.M.A. Machado writing for Workers’ Compensation Commissioner, where he is advising the applicant, copy to P.G. Industries, that the applicant’s case was a closed chapter (in paragraph d). In other words, he advised the applicant he had no case against the respondent basing on the facts before him i.e. A.M. A. Machado. His reasons were outlined in this letter. I am not at liberty to comment on the points raised by Machado in that letter because that is the issue for the Chief Resident Magistrate to decide as I show later in my ruling.

It must be noted that there had been several prior communication between the labour office, the applicant and the workers’ compensation commission dating back as far as 1996.

JURISDICTION

After hearing both parties, I adjourned to read the relevant laws and make a determination. It is unfortunate that after all hopes raised in the applicant considering how long it has taken for him to finally address a court of law, this court can not grant the remedies prayed for.

The reason is simple. This court has no jurisdiction under either the Workers’ Compensation Act 2000 or Workers Compensation Act 1990 to  entertain such claims. The Workers’ Compensation Act 2000 does not apply in this case by virtue of transitional section 70 of the said Act.

THE LAW

This claim arose some time in 1995 after the re-examination where 70% degree of permanent incapacity was certified. The applicable law under the circumstances was the Workers’ Compensation Act 1990 (hereinafter referred to as the Act). Under this Act, an employee who gets injured out of or in the course of his employment is entitled to compensation. In such cases the role of workers compensation commissioner (hereinafter referred to as commissioner) is very crucial. The applicant did all that he was supposed to do under the Act to get compensation.

The applicant was asking the commissioner to find that his degree of incapacity had increased basing on the medical report of 26 October 1994 and as confirmed by Dr Mateus in a letter of 26 August 1997.

The commissioner has powers under section 32 (1)(d&e) of the Act to make a determination basing upon opinion of a medical practitioner that the degree of incapacity has increased. After this finding, the commissioner has powers under section 32(2) to increase compensation.

The applicant being dissatisfied with the reasoning for the decision of 26 February, 1999, by the commissioner, he lodged that dissatisfaction with the commissioner through a letter of 19 July 1999 signed by G.R. Chumachiyenda secretary General of Building Construction Civil Engineering and Allied Workers Union. The letter indicated the desire to take the case elsewhere for adjudication.

Under section 37 of the Act, the applicant has the right of appeal within 21 days of decision of commissioner or within such further period as the court of the Chief Resident Magistrate (CRM) may on good cause shown. The court of the Chief Resident Magistrate, is the one that has appellate jurisdiction to entertain such claims from the commissioner.

LIMITATION PERIOD

First, it must be noted that under both the 1990 and 2000 Acts, the Limitation Act does not apply to claims for compensation. Secondly, the Act of 1990 allows the applicant to appeal against decision of commissioner within 21 days or such further period as the court may deem fit. The applicant in this case, is unrepresented. He has all along been working with a member of trade union, a  lay man as well. Further, due to the complexities in this case, the applicant kept moving from one institution to another, including the, Labour Office, Works Compensation department, the hospital, and the employer. It is proper to conclude that the applicant believed there was  light at the end of the tunnel and he kept going.

The matter was never laid to rest by the applicant at any point. He continued to look for a remedy. The employers defended themselves in court basing on this same letter from the commissioner (26 February 1999) that the applicant had no case.

Despite the said letter of the commissioner, the applicant continued to seek a remedy from the respondent. He lodged his case in the Industrial Relations Court, on18 September 2000. This case has been with this court since then. Meanwhile there was still communication with the workers compensation commissioner. Some of the letters include the letter of 8 January, 2001 and 26 October 2000 from the secretary General of Building Construction Civil Engineering and Allied Workers Union to the commissioner and labour officer.

The applicant was still pursuing his case although he was dealing with the wrong institutions especially after  1999. All in all, the delay in making the appeal to the Chief Resident Magistrate court in this matter should be looked at carefully bearing in mind all the circumstances of this case including the ones observed by this court.

FINDING

It is clear from a reading of the Workers’ Compensation Act 1990 and the laws on Industrial Relations Court that it is only the Chief Resident Magistrate Court that can entertain this case on appeal and order the necessary remedies. If the claim was being lodged now after the assessment of 1994, the applicant would still have had recourse with the CRM court as institution of first instance as per proviso to section 70 of the Workers Compensation Act 2000.

I therefore order that since the workers’ compensation commissioner had made its determination regarding this case, the applicant has the right of appeal against that determination before the Chief Resident Magistrate Court.

Pronounced in open court this 19th day of July, 2002 at Limbe.

R. Zibelu Banda (Ms)

DEPUTY CHAIRPERSON