George and Another v Conforzi Plantations (IRC 15 of2005 ) (NULL) [2006] MWIRC 5 (31 May 2006);




MATTER NO. 15 OF 2005





CORAM: Rachel Zibelu Banda; Chairperson
Kalinga; General Manager
Applicants; George and Kachala
Ngalauka; Official Interpreter


Dismissal-Complaints of unfair dismissal-Section 62 Employment Act-Time limits-Three months-Jurisdiction-District Labour Officer-Section 64 Employment Act-Disputes and Complaints-Labour Officer to attempt to resolve-Court-Jurisdiction on referral or Appeal from Labour Officer-Section 62.

Back ground

The two applicants, George and Kachala, complained to the District Labour Officer in Thyolo that their services had been unfairly terminated. The District Labour Officer at Thyolo invited the respondent for conciliation and mediation. The parties met and the matter was discussed and resolved. The Labour Officer in his wisdom calculated redundancy packages to be paid out to the two applicants. The respondent made out the payments as advised. The matter was thus closed on 19 April 2004.

In 2005 the two applicants went to court and lodged the same complaint against the respondents. At the hearing the court heard the applicants and the respondent and found that the matter was frivolous, vexatious and an abuse of court process and accordingly dismissed the action for the following reasons:

The position of the law is that where the law sets down procedures and steps to be taken in addressing a labour 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.

In all cases of unfair dismissal 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. Section 62 of the Employment Act provides that:

  1. Within three months of the date of dismissal, an employee shall have the right to complain to the District Labour Officer that he has been unfairly dismissed irrespective of whether notice was given or not.

  1. The right of an employee to make a complaint under this section shall be without prejudice to any right that he may enjoy under a collective agreement.

  1. Where the District Labour Officer fails to settle the matter within one month the matter may be referred to the Court in accordance with section 64(2) and (3).

Section 64(1) of the Employment Act provides that:

any person having a question, difference or dispute as to the rights or liabilities of any person, employer or employee under this Act or a contract of employment may bring the matter to the attention of a labour officer who shall attempt to resolve the matter.

The law is very clear that a person having a labour dispute or complaint including a dispute relating to dismissal, must take that complaint to the District Labour Officer within 90 days of the date of the dispute arising. It is therefore unprocedural and a contravention of the labour laws for any person to take their labour disputes directly to the court without first taking their case to the Labour Officer in the district in which the dispute arise.

It is further unprocedural and a flouting of labour laws for a District Labour Officer to entertain a labour dispute brought to his attention after the expiry of the stipulated 90 days. The law provides conversely that all matters brought after 90 days must not be entertained.

In the case of Sokalankhwazi V Sugar Corporation of Malawi [Civil Cause Number 3204/2003 (unreported)]; it was held by Justice Chimasula Phiri that:

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.

In the case of the Industrial Relations Court it must not usurp the powers given to the Labour Officers, who have specific responsibilities to deal with specific labour issues including unfair dismissals, severance allowance and other claims.

Just to add that the Industrial Relations Court has for a long time complained of huge 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 the Industrial Relations Court.

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

Made this 31st day of May 2006 at BLANTYRE

Rachel Zibelu Banda