Gilbert and Others v Blantyre Hotels Ltd (IRC 111 of 2005 ) (111 of 2005) [2006] MWIRC 47 (25 April 2006);




MATTER NO. 111 OF 2005





CORAM: Rachel Zibelu Banda; Chairperson
Njobvu; of Counsel for the Respondent
Madise; Labour Consultant for the applicants
Chinkudzu, Official Interpreter


Terminal benefits-Severance allowance-Section 35 Employment Act-Whether payable or not-Jurisdiction-Severance allowance complaints-Labour Office.

Upon reading the applicants’ submissions and upon reading the respondent’s submissions the court finds that the applicants’ claim for severance allowance must fail on lack of jurisdiction.

The applicants did not lodge their complaint for severance allowance at the Labour Office as stipulated under section 35 (8) of the Employment Act. In Sokalankhwazi V Sugar Corporation of Malawi [Civil Cause Number 3204/2003 (unreported)], the High Court, in dismissing an action for severance allowance held that:

Even if I could find that the plaintiff was fairly dismissed, which is not the case here, I would have nonetheless exercised my discretion to refuse such relief on the ground that the provisions of section 35 (8) were not complied with….where the law has specifically created institutions and procedures to deal with specific rights everyone must adhere to such law. There is no evidence here that the plaintiff complained to the District Labour Officer or further appealed to the Industrial Relations Court.

Indeed such is the position of the law that where the law sets down procedures and steps to be taken in addressing a dispute, then all parties are legally obliged to adhere to such procedural steps; carrying on otherwise would create jurisdictional problems and render the object of the law nugatory. The courts must be the first to enforce such processes so that the rule of law prevails over chaos.

Counsel for the respondent has cited several cases both in the High Court on section 108 of the Constitution and section 35(8) of the Employment Act, where the High Court has refused to entertain matters on the basis of jurisdiction and procedure, see local case citations in: Zibelu Banda; Unfair Labour Practices in Malawi; A Guide to Relevant Cases and Materials (Lexis Nexis Butterworths, South Africa, 2005, at1). The Industrial Relations Court has dismissed cases on the basis of jurisdiction including matters relating to severance allowance claims, see Kungaume V Steel Supplies (Mw) Ltd [Matter Number IRC 269/2003 (unreported)] among other cases.

In all cases of severance allowance as provided by the law, the complaint comes to the Industrial Relations Court by way of either appeal against the Labour Officer’s decision or by way of referral where the Labour Officer refers the unresolved matter to the Industrial Relations Court stating the reasons why the matter could not be resolved at the Labour Office. The Industrial Relations Court must not usurp the powers given to the Ministry of Labour and Vocational Training which has specific responsibilities to deal with specific labour issues including severance allowance claims.

Just to add that the Industrial Relations Court has of late complained of massive case back log and lack of adequate financial resources. The reason has been that the Industrial Relations Court has in fact been taking on responsibilities which are under another institution’s jurisdiction and budget. Therefore in order for the Industrial Relations Court to carry out its functions with efficiency and effectively, it must refrain from taking on other institution’s responsibilities and concentrate only on its mandate as regulated by the law. The law has clearly made divisions of labour between the two institutions, namely the Ministry of Labour and Vocational Training and the Industrial Relations Court.

The right to access justice through the courts is indeed inalienable. However, the law provides means and ways of getting to the court. This is why a person must for example pay court fees in order to access the court. One is yet to argue that the poor should be exempted from paying court fees and that insisting on asking for court fees from the poor is violating their right to access justice in the courts. The scenario is not different from the one provided under section 35 (8). The rationale is to promote order and efficiency.

Any party aggrieved by this decision is at liberty to appeal in terms of section 65 (2) of the Labour Relations Act.

Made this 25th of April 2006 at BLANTYRE

Rachel Zibelu Banda