THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. IRC 11 OF 2001
PIETERSE …………………………………………… APPLICANT
AVIATION SERVICES LTD………….1ST RESPONDENT
STANCOM TOBACCO COMPANY (MW) LTD….2ND RESPONDENT
Banda (Ms) Deputy Chairperson
Savjan SC, Counsel for the respondents
Counsel for the respondents
Kasambara, Counsel for the applicant
assisting counsel for the applicant
E. Lora, Court clerk
U L I N G
into consideration the importance of the respondent’s application on
jurisdiction, this court granted them leave to address this court on the issue
before deciding on their earlier application for an adjournment. I reserved my
ruling on the adjournment to avoid waste of time in case I proceeded with an
action that may end up being heard elsewhere.
respondents objected to jurisdiction of this court on the following grounds as
per amended IRC FORM 2:
The Industrial Relations Court does not have jurisdiction in the matter
because the primary issue i.e. the issue of rectification of contract, neither
relates to employment nor is it a labour dispute.
Industrial Relations Court is not mandated to grant rectification as part of its
remedies or reliefs under the constitution, the Labour Relations Act or the
employment law applicable then.
Industrial Relations Court is not the appropriate forum to determine the
Applicants action because:-
By law a party seeking for rectification, for instance based on a
unilateral mistake alleged to have been induced by fraud or misrepresentation as
the claimant is alleging in the present case, is required to discharge a high
standard of proof.
Industrial Relations Court is not bound by any rules of evidence and therefore
the Respondents are likely to be prejudiced in so far as regards the admission
of evidence in relation to the action for rectification.
both sides addressed the court on various points notably the issue of whether
the applicant’s claim was one relating to employment or rectification of a
contract. It was the view of counsel for the respondents that the applicant
seeks rectification of a contract and that this has nothing to do with a labour
dispute or employment. According to counsel for the respondents this court has
no jurisdiction to rectify a contract nor to grant a remedy of rectification.
The applicant’s counsel on the other hand, averred that the dispute borders on
termination of contract of employment and seeks remedies in form of salary and
Upon a careful consideration of the issues raised in relation
to jurisdiction, I hereby make the following observations and findings:
The Statement of Claim in FORM IRC 1 read in its entirety discloses
issues of employment. The alleged dispute is described as termination of a
contract of employment amounting to unfair dismissal. The reliefs sought are
salary and gratuity benefits.
If the court finds that there is a contract of employment between the
parties, the question is whether the respondents breached it.
After that finding the court will look at the remedies sought by the
applicant and determine whether they fall under this court’s jurisdiction.
The court finds that the issue to be decided is one of employment between
the applicant as employee and the respondents as employers and whether that
employment was properly terminated.
This court also finds that it has jurisdiction to hear and determine the
issues raised in the statement of claim.
Counsel for the respondents argued that the primary issue for
determination is rectification of a contract. They further contend that this
court has no jurisdiction over rectification of contracts. It is the view of
this court that the fact that the word rectify appears in the statement of claim
does not of itself make the matter one of rectification of contract. There is a
difference or dispute between the applicant and the respondents on one or more
terms of an alleged contract of employment. The case is for this court to hear
and determine that dispute or difference. Sections 42 and 64 of the Labour
Relations Act confer on this court jurisdiction over any dispute or difference
between an employer and an employee as to the employment or non employment, or
the terms of employment. This jurisdiction is further buttressed under sections
63 and 64 of the Employment Act.
The Employment Act clearly applies to this claim in terms of section 69
thereof, which, states that the Act applies to all contracts of employment
including those concluded prior to the commencement of the Act. In other words,
the fact that the alleged contract was entered into in 1996 does not preclude
the applicant from seeking relief under the Act if the terms of the alleged
contract are inconsistent with the Act.
This court therefore derives its jurisdiction not only from the
Constitution of the Republic of Malawi 1995 as provided for under section 110
(2) and the Labour Relations Act 1996 as alluded to by counsel for the
respondents but also from the Employment Act 2000.
reading of the Constitution, the Labour Relations Act 1996 and the Employment
Act 2000 clearly show that it is only the Industrial Relations Court that has
original jurisdiction to grant the remedies sought by the applicants. The High
Court has appellate jurisdiction and only on issues of law and jurisdiction (See
Mary Kaunde vs. Malawi Telecommunications,
Civil Cause Number 687 of 2001 (unreported)) and also see Ibrahim
Makalani v. National Bank of Malawi, Civil
Cause number 1491 of 2001 (unreported). It must be pointed out that there is a
contrary interpretation in Malawi
Telecommunications Limited v. Malawi Post and Telecommunications Workers Union
Civil Cause number 2721 of 2001 (unreported)
intention of the legislature is very clear. It was to create a specialist court
to deal with labour and employment matters. The legislature could not create a
specialist court if it intended to grant concurrent jurisdiction to other
courts. This jurisdiction should not be curtailed by a restrictive
interpretation of what constitutes labour and employment matters.
It is the duty of this court like any other court to apply necessary safeguards to ensure justice and fairness in all its decisions. In fact, where the nature of the facts as raised at trial disclose or necessitate observance of higher standard of proof, neither the respondents nor the applicants could be precluded from demanding that such standard be complied with. Hence, the position espoused by counsel has no legal authority and certainly a misconstruction of the law.
the application to have this matter removed from this court on grounds of lack
of jurisdiction is denied.
I allow the adjournment sought by the respondents so that they can
read through the bundle of documents served on them in the afternoon of
yesterday, June 17. Counsel may agree on the duration of the adjournment and the
court will set down the case for hearing accordingly.
this 18th day of June, 2002 at Limbe.
R. Zibelu Banda (Ms)