Mwakhwawa v Chibuku Products Ltd (IC 234 of 20022 ) (234 of 20022) [2006] MWIRC 73 (15 June 2006);




MATTER NO. 234 OF 2002


MWAKHWAWA…………………… …………………………………..APPLICANT



CORAM: Rachel Zibelu Banda; Chairperson
Tembo; of Counsel for the respondent
Makhasu; Representing Trade Union for the applicant
Applicant; Present
Ngalauka; Official Interpreter


Dismissal-Complaints of unfair dismissal-Section 62 Employment Act-Jurisdiction-Regional 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 applicant in this case with the assistance of Trade Union (Hotels) successfully complained to the Regional Labour Officer about the applicant’s dismissal. The Regional Labour Officer conciliated in the matter whereby the respondent offered to reinstate the applicant. The applicant however refused the offer of reinstatement and instead came to court to complain about the same issue that was successfully conciliated in his favour. The court upon hearing the matter dismissed that action as frivolous vexatious and an abuse of court process.

The Law

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 clear that a person having a labour dispute or complaint including a dispute relating to dismissal, must take that complaint to the 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.

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)] and Kamphoni V Malawi Telecommunications Ltd [Matter Number IRC 52/ 2001 (unreported)].


It is an abuse of court process and of the legal system to ignore dispute resolution structures that have been put in place by statute. It is frivolous to take a matter to court which has already been settled through a process of conciliation and mediation as demanded by the law. This action is dismissed on that basis.


The applicant is condemned to pay costs of these proceedings in accordance with section 72 (2) of the Labour Relations Act.

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 15th day of June 2006 at BLANTYRE

Rachel Zibelu Banda