Kang ome v Bata Shoe Company (Ruling) (IRC 143 of 2005 ) (143 of 2005) [2006] MWIRC 6 (23 January 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. 143 OF 2005


BETWEEN



KANG’OMBE………………………… …………………………………..APPLICANT

-and-


BATA SHOE COMPANY………... …………………………………. RESPONDENT

CORAM: Rachel Zibelu Banda; Chairperson
Nthara; Deputy Chairperson (Observer)
Msuku; of Counsel for the respondent
Chinkudzu, Official Interpreter
Gowa, Official Interpreter (Observer)


RULING

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


Upon hearing the applicant and upon hearing the respondent’s submissions the court finds that the applicant’s claim has no merit and it is therefore dismissed. This is because the applicant in his submissions stated that he had received severance allowance amounting to MK268 000-00. The respondent complied with the law as provided in section 35 of the Employment Act.


Further as a matter of orbiter, the applicant did not lodge his 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 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 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.


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



Made this 23rd of January 2006 at BLANTYRE





Rachel Zibelu Banda

CHAIRPERSON