Kamphoni v Malawi Telecommunications Ltd (IRC 52 of 001)) (52 of 001) [2006] MWIRC 66 (31 May 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 52 OF 2001


BETWEEN


KAMPHONI ………………………………………………………….. ….APPLICANT


-and-


MALAWI TELECOMMUNICATION LTD ………………………... RESPONDENT



CORAM: R. ZIBELU BANDA (MS); CHAIRPERSON

Ngwira; of Counsel for the Applicant
Nkuna; of Counsel for the Respondent
Chinkudzu – Official Interpreter


JUDGMENT

Disputes-Complaints of labour nature-Procedure for lodging complaints-Conciliation-Mediation-Arbitration-Labour Officer-Role of labour officers in labour disputes-Courts-Mandatory Mediation Rules.


Background

On 22 February 2006 the this matter was set down for hearing. Counsel for the Respondent raised some preliminary observations. The observations touched on the propriety of the court proceeding with the hearing in the light of three issues. First was the fact that the contract subject of the proceedings contained an arbitration clause under Clause 19. Second was that the applicant had not followed the procedures laid out under the Employment Act regarding dispute resolution and finally the Mandatory Mediation Rules 2004 were not utilised.


The court having listened to the observations and heard from counsel for the applicant ordered that some serious observations had been made that would require the court to come up with a precedent once and for all on matters regarding the bringing of cases to the Industrial Relations Court. The court directed that written submissions be filed on the issue as the issue was purely procedural.


The Employment Act

Section 64 (1) of the Employment Act provided as follows: Any person having a question, difference or dispute as to the rights or liabilities of any person, employer or employee under this Act or contract of employment may bring the matter to the attention of a labour officer who shall attempt to resolve matter.

In all cases alleging unfair dismissal, 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).


The language of the provision is not mandatory but clearly the law has put in place a mechanism that is meant to screen complaints before they are taken to court. Such a mechanism would seriously help reduce congestion at the courts as only unresolved issues could go through the courts system.


The importance of following procedures laid down under statute was emphasized by Justice Chimasula Phiri in the case of Sokalankhwazi V The Sugar Corporation of Malawi Limited [Civil Cause Number 3204 of 2003 (unreported)] where the court was dealing with a complaint for severance allowance. Section 35 (8) of the Employment Act provides that such complaint can be reported to the District Labour Officer who can then refer it to court if not resolved.


In Luhanga V Coda Partners and Mota Companhia S.A. [Civil Cause Number 2891 of 2002, (unreported)] Justice Katsala while considering similar provisions under the Workers Compensation Act observed that where an Act of Parliament has provided the mode as to how issues arising under the Act are to be determined that mode of procedure must be followed. He went further to state that it would be pointless for parliament to prescribe a procedure if parties would be at liberty to deal with issues under Act otherwise than as is so prescribed. The Judge cited the case of ABC Cosmo Limited V Blantyre Water Board [1991] 14 MLR 1. The Judge dismissed the plaintiffs claim on the above ground.


The Industrial Relations Court has made similar findings in its rulings on the issue of lodging labour complaints. In the most recent case of George and another V Conforzi Plantations [Matter Number IRC 15/2005 (unreported)] the court held that:


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.


Court (Mandatory) (Mediation) Rules 2004


The Courts (Mandatory) (Mediation) Rules 2004 were specifically erected under Section 67 of the Court Act with background of congestion of cases at the court. The purpose was therefore to provide not only an alternative conflict resolution mechanism but to screen complaints so that only those complaints that are serious and that cannot be resolved otherwise find their way to the courts.


The rules apply to civil actions pending before the High Court and Subordinate courts and all civil actions commenced before the High Court and Subordinate Courts. The rules clearly apply in matters before the Industrial Relations Court as should be clear from rule 14.


For the above reason the Judiciary has set up an Alternative Dispute Resolution Registry to facilitate the process of conciliation and mediation. There are exceptions to the application of the rules but they are not relevant to the present case.


Under Section 4 of the rules all proceedings to which the rules apply are mandated to first go through mediation in accordance with the rules. The ideal is to strive to reduce cost and delay in litigation, and facilitate expedient and fair resolution of disputes.


This is a new system which deserves the support of all including the courts and legal counsel, in order for the system to take root. As observed in the case of ABC Cosmos supra, where the law prescribes procedure for settlement of disputes, the procedure has to be followed otherwise the system will be a mockery.


Finding

It is for this reason therefore that this matter is stayed pending compliance with the provisions stipulated by law enunciated above on procedure for lodging labour complaints.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this Ruling in accordance with section 65(2) of the Labour Relations Act.




Pronounced this 31st day of May 2006 at BLANTYRE



Rachel Zibelu Banda1

CHAIRPERSON



1 The court is grateful to Counsel for the Respondent for his well researched submissions on this subject.