THE HIGH COURT OF MALAWI
CAUSE NO. 2721 OF 2001
Katsala, Legal Practitioner for the Plaintiff
Nyimba, Legal Practitioner for the Defendant
Balakasi, Official Court Interpreter
Post and Telecommunications Workers Union raises a narrow but crucial issue to
a complex injunction application. The Union moves this Court to decide that
Malawi Telecommunications Limited’s action is irregular because Malawi
Telecommunications Limited, the employer, should, under sections 54 and 64 of the Labour Relation Act, have
commenced the action in the Industrial Relation Court.
the injunction, the Union raises four points under section 54 of the Labour
Relations Act. First, the Union
accuses the employer for violating sections 46 and 53 by not applying to the
Industrial Relations Court. Secondly, the Union alleges the employer could
only apply for an injunction if it demonstrates, and it never did, danger to
life safety or health of a person. Thirdly, the Union accuses the employer for
not affording Union a reasonable opportunity to be heard on the injunction.
Finally, the Union submits
there are no good reasons to support the plaintiff’s action in the
High Court when the Industrial Relations Court has original jurisdiction on
Nyimba, the Union’s legal practitioner,
carefully thought through the motion. The supporting affidavit and
arguments premiss on two decisions of this Court. This Court
has to reconsider certain statements in
these judgements and has, something not done fully in Kaunde v
Malawi Telecommunications Ltd. and Mungoni v Registered Trustees of The
Development of Malawi Traders Trust, to examine the constitutional
provisions and various statutes made under the Constitution dealing with
labour disputes, industrial or labour relations and employment in Malawi.
should, to handle all legal issues the motion raises, present the events,
not the detailed evidence, leading to the employer’s application and
the subsequent Union’s motion to dismiss this action.
It is unnecessary to give
full details or the length of this dispute for the narrow point
this motion raises. It suffices to say that the Union on 19th
July 2001 declared a dispute and gave the employer seven days notice to
strike. The dispute, in the letter titled “declaration of the dispute and
notification of our intention to strike” the Union sent to the employer and
the Principal Secretary for Labour, reads:
The new conditions of service (Malawi Telecom Limited) be nullified and a
mechanism be put in place to discuss new regulation in which all the
stakeholders be involved (i.e., all directors, all controllers and the union)
we shall comply with the provisions of the Communications Act No. 41 of 1998;
(ii) If management feels it
cannot be able to comply with the above requirements, management should lay
off its employees and pay their retrenchments benefits from April 1997 to date
based on the 1995 Malawi Post and Telecommunication conditions of service;
(iii) In any event should management accept in writing to comply with either of the above requirements the dispute shall be resolved.”
paragraph indicates the effective date of the notice and the subsequent
above shall come to into effect from Monday the 23rd July 2001 to Tuesday the 31st July 2001. Should management fail to
address this issue within
the prescribed period, we shall go on an indefinite strike effective
Wednesday the 1st of August 2001.”
20th of July 2001, responding
to the Union’s letter of 19th July 2001,
the Principal Secretary for Labour considered the strike premature
because the Union never complied with dispute settlements procedures in
sections 44 and 45 of the Labour Relations Act.
The Principal Secretary thought that, under section 44 of the Labour
Relations Act, the Union should have reported the dispute to the Principal
Secretary to facilitate conciliation. He
wrote the Union, being at a stage where a dispute was declared, to report to
the Principal Secretary to appoint a conciliator.
section 43 (1), the parties are not obliged to report a dispute to the
Principal Secretary to facilitate conciliation: “Any disputes, whether existing or eminent, may be
reported to the Principal Secretary responsible for Labour by or on behalf of
any of the parties to the dispute.” Nothing in section 43 (1) suggests
compulsory reporting. Section 44
(1), setting the conciliation procedure confirms this: - “If a dispute is
reported to the Principal Secretary responsible for Labour...” The conciliation procedure begins if the parties or
somebody else decides and actually reports the matter to the Principal
Secretary. The Principal
Secretary, himself or through others, can endeavour conciliation. His
endeavors are subject section 44 (2). Reading
sections 43 (1) and 44 (1) closely, however,
the Principal Secretary cannot endeavor to conciliate if parties to the
dispute or others have not reported
the dispute to her.
44 (2) should be read sui generis. It makes conciliation or endeavours
to conciliation compulsory. It
calls parties to disputes where
one party is government, including any public authority or commercial
enterprise where government has a controlling interest, to agree upon a
conciliator. The Principal Secretary cannot appoint a conciliator. If parties cannot agree on a conciliator within seven days of
the report of the dispute, the Industrial Relation Court, on application by
the parties, can appoint an independent arbitrator. Even if the Union’s
letter is a notice to the Principal Secretary, since the dispute involved
government or a commercial enterprise where government has a controlling
interest, the Principal Secretary should have allowed parties to agree on a
next event was an unsuccessful Malawi Congress of Trade Union mediation of 31st
July 2001. The Malawi Congress of Trade Unions thought the employer’s
decision correct and invited the
Union to call off the strike. The
Malawi Telecommunications Limited’s board considered the mediation
outcome and resolved to stick to the earlier view.
It encouraged continuing consultation with the Union.
On 23rd August 2001 the Principal Secretary
appointed a conciliator. The conciliator’s meetings proved
problematic because members sat in. On 21st September 2001 police
arrested six workers at Kanjedza earth station for switching off the system.
The 25th September 2001 meeting failed because the Union
changed demands. The parties agreed for the
Principal Secretary for Statutory Corporation. The Union changed mind.
Meanwhile, the sitting in continued. The
employer applied to this Court for an injunction.
labour disputes interlocutory injunctions are problematic because
granting the relief to stop a strike or a lock out might actually
determine the matter. The
employer will suffer considerably if the strike is not stopped and it turns
out the employer was right in preventing the strike by the interlocutory
injunction. Conversely, should
the employee or employees’ organization be correct an interlocutory
injunction causes the employee or employee organization to lose the impetus
the strike sets. The reasoning
applies mutatis mutandis to an injunction to prevent a lockout. If the lockout is not prevented, the employees will have lost
out if it turns out that they were correct.
If the lockout is prevented and it turns out that the employer was
right he also will have suffered. The
court should treat the employee’s right to strike and the employer’s right
to lockout diligently and deliberately. Ex parte applications for
injunctions are more problematic.
resolve the Union’s objections is to answer three sets of question.
Has the Industrial Relations Court got exclusive jurisdiction in labour
disputes and employment matters? Has
the Industrial Relations Court original jurisdiction in all labour disputes
and employment cases? In all
cases where the Industrial Relations Court has got common or concurrent
jurisdiction what should the courts, including Industrial Relations Court, do
when matters are before them?
first question is important to the submission, which in my judgment must be
correct, Mr. Katsala, the plaintiff’s legal practitioner, makes about this
Court’s jurisdiction. Section
108 (1) provides:
shall be the High Court for the Republic which shall have unlimited original
jurisdiction to hear and determine any civil and criminal proceedings
under any law.”
civil ... proceeding under any law’ must ex hypothesi include
employment law and labour relations law and civil proceedings thereunder.
Suggestions that an Act of Parliament, without amending the
Constitution, would limit the power of the High Court must be unacceptable.
On this courts plenipotentiary jurisdiction, it seems to me, there is
agreement between Kapanda J and Chipeta J in the cited cases.
The point does not only arise from the wording of section 108 (1). The
contrary conclusion that the Industrial Relations Court has exclusive
jurisdiction in labour disputes and employment related issues is unjustified
even on the reading of section 110 (2) creating the Industrial Relations
shall be an Industrial Relations Court, subordinate to the High Court, which
shall have original jurisdiction over labour disputes and such other issues
relating to employment and shall have composition and procedure as may be specified in an Act of Parliament.”
the Industrial Relations Court is subordinate to the High Court suggests, on
the face of it, that the High Court has the same, if not greater, jurisdiction
than the Industrial Relations Court. If the constitutional framers intended
the Industrial Relations Court have exclusive jurisdiction to the exclusion of
the High Court, the words
‘unlimited,’ ‘exclusive’ or words to the same effect would have been
introduced in section 110 (2).
framers in section 138 (1) employed such terminology about the National
Compensation Tribunal. They never
did that for the Industrial Relations Court. More importantly, ‘original
jurisdiction’ in section 110 (2) and in
provisions examined later do not
introduce any magical meaning to the section.
The words are used in a contradistinction to ‘appellate
jurisdiction.’The Industrial Relations Court is a court of first instances.
concluding statement is important for the other point I make that it is not
only the High Court which has jurisdiction on the same matters as the
Industrial Relations Courts. Magistrate courts have jurisdiction in labour
disputes and employment related issues. The
Courts Act excludes from subordinate courts jurisdiction certain actions based
on the nature of the law or subject matter. Labour law and Employment law have
not been excluded. A part from jurisdiction based on the law and subject
matter, magistrates can apply any law subject to the amount of the claim.
Consequently, where the claim falls within the amounts, nothing in
section 110 (2) exclude the jurisdiction of subordinate courts created under
section 110 (1). The subordinate
courts’ jurisdiction in employment and labour issues relates to the amount
of claim. In my judgement, like in England and Wales, the Industrial Relations
Court shares jurisdiction with the High Court and subordinate Courts.
This conclusion necessarily implies that there is no principle of law
to compel, as Kaunde v Malawi Telecommunications Ltd. and Mungoni v
The Registered Trustees suggest, a litigant to commence all labour
disputes and employment related cases in the Industrial Relations Court.
Of course, there are remedies which, it appears, only the Industrial
Relations Court can give. For that reason alone, it may be advisable, subject
to costs, to commence proceedings in that court. The Industrial Relations
Court does not have exclusive original jurisdiction, at least from the
standpoint of the Constitution. Is the situation any different from the
standpoint of the statutes?
The second question is whether the Industrial Relations Court has original jurisdiction in all labour disputes and employment related cases. Put differently, are there labour disputes and employment related issues outside the Industrial Relations Court’s jurisdiction? This question is important to Mr. Katsala’s suggestion that section 64 of the Labour Relations Act would be unconstitutional if, as Mr. Nyimba suggests, the legislature intended the Industrial Relations Court to handle all such matters. The Lord Chancellor, it may be useful to know, was, until recently (Industrial Tribunal Extension of Jurisdiction (England and Wales) Order 1994, Article 10), reluctant to transfer to employment tribunals, our Industrial Relations Court equivalents, jurisdiction over breaches of employment contracts. The question must be answered by interpreting section 64 of the Labour Relations Act.
64 of the Labour Relations Act provides: -
Industrial Relations Court shall have original jurisdiction to hear and
determine all labour disputes and disputes assigned to it under this Act or
any other written law.”
The expression ‘original jurisdiction’ no more than suggests that the Industrial Relations Court will have original, as opposed to appellate, jurisdiction. The section does not, however, provide that the Industrial Relations Court shall have original jurisdiction to hear and determine ‘all labour disputes and disputes,’ the rendition Mr. Nyimba and Mr. Katsala assign to the provision.
section provides that the Industrial Relations Court will have original
jurisdiction to hear and determine all labour
and all disputes ‘assigned to it under this Act and any other written law.’
The word ‘all’ qualifies
‘labour disputes’ and ‘disputes.’ The word ‘all’ covers ‘labour
disputes’ and ‘disputes.’ The words ‘assigned to it under this Act or
any other written law’ qualify ‘labour disputes’ and ‘disputes.’
It is not that the Industrial Relations Court shall have original
jurisdiction to hear and determine all disputes assigned to it under the Act and
other written law besides jurisdiction to hear and determine all labour
disputes. It is to the extent that this Act or any other written law has
assigned labour disputes and disputes that the Industrial Relations Court has
original jurisdiction to hear and determine those cases.
The Industrial Relations Court, therefore,
has only original jurisdiction over all matters the Labour Relations Act
or any other written law assign. The
Industrial Relations Court does not therefore have jurisdiction on all labour
disputes and disputes.
Industrial Relations Court’s jurisdiction derives from the Labour Relations
Act, the Constitution and the Employment Acts. The Constitution has not defined
the expression ‘labour dispute.’ The word occurs once in the Constitution.
The Labour Relations Act defines a dispute. Without the context, a definition by
Parliament, in another context, may offer necessary guidance, though section 42
only defines ‘dispute’ only in relation to ‘this Part.’ Section 42
this Part, ‘dispute’ means any dispute or difference between an employer or
employers’ organisation and employees or a trade union, as to the employment
or non-employment, or the terms of employment, or the conditions of labour or
the work done or to be done, of any person, or generally regarding the social or
economic interests of employees.”
11 of the Constitution allows recourse to comparable foreign case law. The
American National Labour Relations Act defines a labour dispute to include any
controversy between employers and employees concerning terms, tenure, hours,
wages, fringe benefits, or conditions of employment, or concerning the
association or representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment. Not all
disputes, as National Labour Relations Board v Longshoremen’s Association,
Md., 332 F.2d, 992, points out, in which a labour organisation is involved is a
labour dispute. A labour dispute primarily involves an employer or employer
organisation and employees or trade
unions. The subject-matter of the dispute is wide. The parties are definite. The
Constitution therefore creates the Industrial Relations Court and assigns to it
jurisdiction, not exclusive, over labour disputes and employment related
Labour Relations Act assigns two disputes to the Industrial Relations Court.
Section 8 of the Labour Relations Act covers part II provisions
relating to freedoms of association. Sections
44, 45 and 54 cover disputes
settlements under part V. Part II
covers freedoms of association: rights
of Trade Unions and Employers organization (section 5); protection of employees
(section 6); and protection in respect of organizations (section 7).
Section 8 covers remedies for violation:
“(1) Any complaint of infringement of the rights or protection contained in this paragraph may be presented to the Industrial Relations Court
Subject to subsection 3, the Industrial Relations Court shall make such
orders as it deems necessary to secure to compliance
with this part, including an order for reinstatement
of an employee, the restoration of her or him of any benefit or advantage
and an order for repayment of any compensation
(3) Where an employee is dismissed contrary to section 6, reinstatement
to be ordered is so requested by the employee as long with any remedy that the
Industrial Relations Court deems appropriate, unless
reinstatement is clearly not practicable.”
8 (1) of the Labour Relations Act is permissive. It does not state that the
complaints or infringement shall be presented to the Court. If that was intended
Parliament would have used clear words.
V deals with dispute settlements: reporting a dispute (section 43); conciliation
procedure (section 44); unresolved dispute (section 45); strike out or lockout
procedure(section 46); strike or lock out in essential services(section 47);
status of collective agreements and employment contracts (section 48); civil
immunity (section 49); right to return to work (section 50); temporary
replacement labour (section 51); refusal to do strikers’ work (section 52);
peaceful picketing (section 53); and injunctions in respect of strike or lockout
(section 54). Sections 44, 45 and
54 give Industrial Relations Court’s jurisdiction on disputes as defined in
section 42. The
Labour Relation Act confers to the Industrial Relations Court parts II and V
because the Act concerns labour and industrial relations and not terms of
sections 44 dealing with the power of the Industrial Relations Court to appoint
an arbitrator if parties cannot agree on a conciliator, sections 45 and 54,
which confer the Industrial
Relations Court’s jurisdiction, do not obligate commencing proceedings in that
court. Under section 45 (1), dealing with unresolved disputes about the
interpretation or application of any statutory provisions or any provisions of a
collective agreement or contract of employment or an essential service, parties
to the dispute or the Principal Secretary may, they do not have to, apply to the
Industrial Relations Court to resolve the dispute. Ex hypothesi, parties
can go elsewhere. Under section 45 (2), dealing with unresolved disputes other
than those in section 45 (1), parties can only refer to the Industrial Relations
Court if they agree. They do not have to refer the matter to the Industrial
Relations Court if they do not agree. Section 45 (3) is equally permissive.
section 54 (1), parties may, they do not have to, apply to the Industrial
Relations Court for violations of sections 46 to 53. Section 54 (2) of the
Labour Relations Act impliedly gives power, the Courts Act does not in relation
to subordinate courts, to the Industrial Relations Court. The section should not
be read as affecting the power of the High Court to grant injunctions in these
matters. The section also restricts the Industrial Relations Court’s power to
grant ex parte injunctions in industrial dispute matters. The restrictions,
subject to what I say later, pertain to that court alone. The Labour Relations
Act therefore does not give the Industrial Relations Court jurisdiction over all
labour disputes. It does not for that matter, may be to a limited extent, as the
Constitution states, give the Industrial Relations Court jurisdiction over
employment related matters. That is left to the Employment Act.
the Employment Act give the Industrial Relations Court jurisdiction over all
employment related matters? The Act has eight
parts: preliminary matters (Part 1); fundamental principles (Part II);
Administration (Part III)freedom of association (Part III); Employment of
young people (Part IV); Contracts (Part V); Hours of work (Part VI); Wages (Part
VII); Discipline and dismissal (Part VIII); and Miscellaneous provisions (Part
IX). True to section 64 of the Labour Relations Act, which provides that
jurisdiction on all labour disputes and disputes may be conferred by other
written law, the Employment Act, passed after the Labour Relations Act, gives
certain powers to the Industrial Relations Court.
The Employment Act does not, however, give the Industrial Relations Court
jurisdiction over all employment related cases.
In Kaunde v Malawi Telecommunication Ltd., this Court said:
is a common cause that the plaintiffs are relying on the provision of the Employment Act and are desirous of obtaining reliefs under
the said Employment Act. It is also clear in my mind that under the said
Employment Act the Tribunal that is competent to deal with complaints under the
said Employment Act is the Industrial Relations Court. This is clear when one reads section 3 together with sections
7, 62, 63 and 64 of the Employment
Act. Indeed, the said
Employment Act has provided that the Industrial Relations Court is the court
that should entertain and hear applications for the enforcement of the
fundamental rights provided for under the said act no 16 of 1996.”
in my judgement, in the Employment Act, the Labour Relations Act, which created
the Industrial Relations Court and the Constitution suggests that the Industrial
Relations Court is the competent, where that suggests that other courts are not,
court to deal with the Employment Act matters.
On the contrary the High Court and magistrate
courts, in their original jurisdiction, are competent to handle Employment Act
matters. When sections 3, 7, 62,
63, and 64 of the Act Kaunde v Malawi Telecommunications Ltd., refers to
are read, it is clear the legislature never intended to limit the jurisdiction
of courts other than the Industrial Relations Court in relation on matters under
3, the interpretation section, provides that, in the Employment Act, ‘court’
means the Industrial Relations Court established under section 110 (2)of the
Constitution. Sections 7, 62, 63
and 64 of the Employment Act are sections conferring the court, the Industrial
Relations Court, the jurisdiction under the Act.
Section 7, concerning remedies for Part II infringements, provides:
a complaint alleging infringement
of rights contained in this Part has been proved, the Court shall make such
order as it deems necessary to
ensure compliance with the provisions in this Part, including an order for reinstatement of an employee, the restoration to him of a
benefit or advantage and an order for payment of compensation.”
II creates and confirms several fundamental rights; forced labour (Section 4);
antidiscrimination (Section 5); and equal pay (section 6).
One cannot however read in section 7 that only the Industrial Relations
Court can handle Part II violations. The Constitution creates these rights and
gives general jurisdiction to courts to oversee enforcement and fulfilment.
Section 46 (2) of the constitution, concerning enforcement of rights,
gives the citizen a right to apply to a competent court.
It does not follow, however, that
other courts are incompetent because under section 7 of the Employment Act the
Industrial Relations Court has jurisdiction on the same matters. There must, in my judgement, be clear wording in
section 7 of the Employment Act to oust other courts’ constitutional
jurisdiction. In my judgment, for
the principles stated the Industrial Relations Court is one among many to handle
violations of fundamental rights. Section
7 only confers jurisdiction to the Industrial Relations Court. It does not
exclude other courts’ jurisdictions.
62, 63 and 64 of the Employment Act Kaunde v Malawi Telecommunication Ltd.
mentions concern a statutory right, unfair dismissal: the sections do not cover
the common law right for damages for unlawful or wrongful dismissal. There were
problems with the concepts in Kaunde v Malawi Telecommunications Ltd.
The matter was subsumed either from submissions or from misunderstanding
that the Act applied generally to matters the action raised.
Fortunately, the Court’s judgement detailed the matters the action
raised. In all instances the action was not for unfair dismissal, the statutory
right under sections 62, 63 and 64. The
plaintiffs claimed damages for unlawful and wrongful dismissal at common law.
section 58 a dismissal is ‘unfair if it is not in conformity with section 57
or is a constructive dismissal pursuant
to section 60.’ Under Section 57 the employment of an employee shall not be
terminated by an employer unless there is a valid reason for such termination
connected with the capacity or conduct of the employee or based on the
operational requirements of the undertaking (1); The employment of an employee
shall not be terminated for reasons connected with his capacity or conduct
before the employee is provided an opportunity to defend himself against the
allegations made, unless the employer cannot reasonably be expected to provide
the opportunity (2); the following reasons do not constitute valid reasons for
dismissal or for the imposition of disciplinary action, (a) an employee’s
race, colour, sex, language, religion, political or other opinion, nationality,
ethnic or social origin, disability, property, birth, marital or other status or
family responsibilities, (b) an employee’s exercise of any of the rights
specified in part II of the Labour Relations Act, © an employee’s temporary
absence from work because of sickness injury, (d) an employee’s exercise or
proposed exercise of the right to remove himself from a work situation which he
reasonably believes presents an imminent or serious danger to life or health,
(e) an employee’s participation or proposed participation in industrial action
which takes place in conformity with the provisions of Part V of the Labour
Relation Act, (f)
an employee’s refusal to do any work normally done by an employee who
is engaged in industrial action, or (g)
the filing of a complaint or the participation in proceedings against an
employer involving alleged violations of laws, regulations or collective
60 defines constructive dismissal:
employee is entitled to terminate the contract of employment without notice or
with less notice than that to which the employer is entitled by any statutory
provision or contractual term where the employer’s conduct has made it
unreasonable to expect the employee to continue the employment relationship.”
62 lays the procedure for unfair
dismissal complaints. Under section
62 (1), the employee may, within three months of termination, complain to the
district labour office about the unfair dismissal. Section 62 (2) requires the district labour officer to settle
the matter within one month of reference. If,
under the section the District Labour Officer fails, the matter may be,
not that it should, referred to the Industrial Relations Court under sections 64
(2) and 64 (3). Section 64 (3)
the provisions of subsections (1) and (2), any person alleging a violation of a
provision of this Act may where not otherwise specified, present his
complaint to the Court for relief and where a time limit has been set for the
presentation of a complaint by a complainant and the District Labour Officer
chooses not to institute a prosecution, the limit shall be further extended for
64 (1) provides:
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 or employment
may bring the matter to the attention of a labour officer who shall attempt to
resolve the matter.”
there is section 63 which provides for remedies for unfair dismissal.
is a difference between the statutory right of unfair dismissal and unlawful and
wrongful dismissal at common law. An
employee can sue the employer for damages purely for breach of contracts, for
breach of terms concerning termination. At
common law the employee’s damages are the amounts she is entitled to up to
when the notice should have been given. The plaintiff, as happened in Kaunde
v Malawi Telecommunication Ltd., could claim other benefits under the
contract. The contract governs
these. Nothing in the
Employment Act, even the Labour Relations Act,
gives the Industrial Relations Court jurisdiction over actions based
purely on breach of a contract. Matters
based purely on breach of a contract are governed by the general law of
contracts administered by the High Court and magistrate courts. In England and
Wales the Lord Chancellor was very reluctant to allow Employment tribunals to
handle matters based on breach of a contract of employment. He has done so
recently (Industrial Tribunals Extensions of Jurisdiction (England and Wales)
Order, 1994, Article 10) but only for amounts for up to the county court
judges’ jurisdiction. Matters
purely contractual, therefore, such as terminal entitlement benefits etc., are
not in the Industrial Relations Court’s jurisdiction.
termination, the employee still has her rights under the contract.
Where the employer breached the contract when terminating the
employee’s services, the employee
is entitled to damages which only regular courts give.
This raises the possibility, not introduced in Kaunde v Malawi
Telecommunications Ltd., but possible under our law since the Employment Act
came into force, that the employee has two remedies:
her common law remedy for damages for unlawful or wrongful dismissal and
her statutory remedy for compensation for unfair dismissal (Janciuk v
Winerite Limited  IRLR 63; and Raspin v United News Shops EAT
Employment Act has two implications. First,
a lawful termination can be unfair dismissal under the Act.
Conversely, an unlawful termination may be a fair dismissal under the
statute. Secondly, the Act has implications on damages and awards. This duality
means an employee can recover common law damages for unlawful dismissal in
ordinary courts and statutory awards for unfair dismissal under the Act.
Scottish and English Court s differ on the double compensation prospect. Scottish courts, unlike English courts, do not allow for
common law damages for wrongful or unlawful termination to the unfair dismissal
compensation award (Addison v Babcock FATA Ltd.,  2 All ER 784
rejecting the Scottish view in Finnie v Top Hat Frozen Foods,  IRLR
173). Malawian courts invariably follow English courts.
There might be good reasons for both options.
This lengthy discourse is for the important point I make following this
Court’s decision in Kaunde v Malawi Telecommunications Ltd. and Mungoni
v The Registered Trustees of Development of Malawi Traders Trust. In my
judgment the Employment Act gives the Industrial Relations Court jurisdictions
over fundamental rights (Part II) and unfair dismissal (Part VIII). The
Employment Act never gives the Industrial Relations Court jurisdiction
over all employment matters. Specifically, on termination of employment,
the Industrial Relations Court, under the Employment Act, only has
jurisdiction on unfair dismissals. Much
of the employment contract is outside the Industrial Relations Court’s
jurisdiction and governed by general contract law which ordinary courts apply.
sections 62 (3) conferring jurisdiction on the Industrial Relations Court
provides that the matter may, not should, be referred to the Industrial
Relations Court if the labour officer fails to settle the matter. Under section
64 (3) a person alleging violation of provisions of the Act may, not
shall, present her complaint to the Industrial Relations Court.
separation between rights under the contract and statute is
pronounced in section 64, a saving provision.
Under section 64 (1), concerning conciliation by a labour officer,
disputes that a labour officer can, if brought to him, try to assist are those
under ‘this Act or a contract of employment.’
Under section 64 (3), dealing with the Industrial Relations Court
jurisdiction, a person alleging violation of ‘provisions of this Act’ may
present her complainant to the Industrial Relations Court. There is no reference
to a ‘contract of employment’ as in section 64 (1).
the second question, therefore under our law, the Industrial Relations Court
does not have original jurisdiction on all labour disputes or disputes or
employment related matters. Since
the law confers the Industrial Relations Court’s jurisdiction, the
Constitution, the Labour Relations Act itself and the Employment Act give
limited jurisdiction to the Industrial Relations Court. The High Court and magistrate courts have general powers on
matters the Industrial Relations Court has jurisdiction on.
is significant that the Employment Act in part II and part VIII covers
employees’ rights. Sections 57 to 63 concern employees’ rights.
The Employment Act and the Labour Relations Act do not address the
employer’s rights in the Industrial Relations Court where the employer alleges
the employee’s breaches of a contract. The assumption is that the employer who
claims breach of the employment contract can recourse
regular courts. Nothing in
the Employment Act requires the employer recourse
the Industrial Relations Court except, of course, in the only circumstance in
section 64 (3) that the employer claims violation of the Act. Even section 64
(3) is permissive. The person alleging violation of the Act is not obliged to go
to the Industrial Relations Court. She can go elsewhere. There is nothing in
section 64 (3) that ousts the jurisdiction of this Court or other courts.
Ultimately a person alleging violation of the Act may find it expedient to go to
the Industrial Relations Court because that court is cheaper and quicker.
final question therefore should be considered. I must answer this question
because Mr. Nyimba, before reading Likaku v Likaku suggested that,
notwithstanding this Court’s jurisdiction, this Court should dismiss the
action because the Industrial Relations Court also has jurisdiction. There
appears to be conflicting decisions
of this Court on the matter. Mungomo v Mungomo, the earlier decision,
suggests this Court should dismiss the action in the circumstances. Mungoni v
Registered Trustees of the Development of Malawi Traders Trust, although
Chipeta, J., never cited Mungomo v Mungomo is to the same effect. Chipeta,
J., thought that the plaintiff should have commenced the matter in the
Industrial Relations Court and dismissed the summons. In Kaunde v Malawi Telecommunications Ltd., Kapanda,
J., followed Mungomo v Mungomo and Mungoni v The Registered Trustees
of the Development of Malawi Traders Trust.
The consequences of the reasoning in Kaunde v Malawi
Telecommunications Ltd. is
unclear. The judge ordered the
proceedings be taken before the Industrial Relations Court.
It is unclear whether he, following Mungomo v Mungomo, dismissed
the case. Just as
the order is unclear on whether the Court transferred the case. More
however suggests that the Court dismissed the matter.
The costs were not left to the transferee court.
Whatever happened is unimportant.
appears to this Court that the legal practitioners never introduced
Likaku v Likaku, where this Court considered
Mungomo v Mungomo. It
is useful therefore to consider Kaunde v Malawi Telecommunications Ltd.,
the latest case, because until the Supreme Court resolves the question, the
position in Likaku v Likaku, with which both counsel agree,
that this Court cannot dismiss an action where it has jurisdiction simply
because a lower court has jurisdiction is correct in principle and in law. This
Court must in the circumstances, rather than dismiss the action, transfer,
either of its own motion or application by the parties, the proceedings.
first point Kaunde v Malawi Telecommunications Ltd., following Mungomo
v Mungomo, makes is that the plaintiff has to satisfy this Court that there
are exceptional circumstances for commencing proceedings here.
It is difficult to think why there should be such proof if, as we see
shortly, and as demonstrated earlier, the court has jurisdiction.
If this Court has jurisdiction, and this should be sufficient reason, it
is unnecessary to require a litigant to demonstrate why she invokes that
jurisdiction. Where this court
lacks jurisdiction the plaintiff does not have to give reasons; lack of
jurisdiction is reason enough. Where the court has jurisdiction, to require the
litigant to demonstrate reasons may result in multiplicity of applications
dealing with the very question whether there are exceptional circumstances in
one case or the other justifying the commencement of proceedings in this court.
There is the very question when should the demonstration be. Should it be as the action is commenced, before the action is
commenced or after the action is commenced?
This involves the court in unnecessary and distended applications.
page 11 the court said:
are no good reasons to support the plaintiff’s choice of the High Court, as a
forum in which they should commence these proceedings, when the Employment Act
clearly states that an application for the enforcement of remedies under the
said Act shall be brought before the Industrial Relations Court. The fact that
the High Court has unlimited original jurisdiction must not be allowed to
detract us from the clear provisions of the Employment Act as read with section
64 of the Labour Relations Act, which categorically states that the Industrial
Relations Court shall have the original jurisdiction to hear and determine all
such labour related disputes.”
110 (2) of the Constitution is given to aid the assertion. The Labour Relations
Act, the Employment Act and the Constitution, as demonstrated, do not support
is said that this Court has no original jurisdiction because the Labour
Relations Act provides for an appeal from the Industrial Relations Court to this
Court. The existence of a right to
appeal to this Court is not decisive on this Court’s original jurisdiction.
This Court’s appellate jurisdiction is statutory. It is not constitutional.
This Court and subordinate
courts overlap jurisdiction despite that this Court has
appellate jurisdiction over subordinate courts.
The Act must clearly show that it strips this Court of its unlimited
jurisdiction. The right of appeal from another court is inconclusive.
In my judgment, there is nothing to oust the original jurisdiction of
this Court in the very matters in which a subordinate court has also
jurisdiction. The original
jurisdiction of this Court is not undermined by the number of appeals afforded a
litigant. The Constitution provides
for a right of appeal. It does not determine how many appeals there should be.
A litigant has only one right of appeal on matters originating
from this Court. It makes no
difference that this is an employment matter.
The Labour Relations Act is premised on reduced appellate proceedings.
Consequently, some Industrial Relations Court’s decisions are final.
Mungomo v Mungomo and Kaunde v Malawi Telecommunications Ltd.,
this Court gives two reasons for reluctance to entertain matters where lower
courts have jurisdiction. First, is fear of inundation in this Court. The High
Court should not see inundation from its side only. This Court must consider both sides. Inundation in this Court must be avoided. It is equally
important to avoid inundation in the lower court. A rule proscribing commencing
actions in this Court for inundation affects the citizen’s right to a speedy
trial. Where the lower court is inundated, it is, in my judgement,
within the litigants right to commence actions in this Court which shares
jurisdiction with the lower court. Inundation or opening flood gate is,
in my judgement, a limited argument.
the defendant in Kaunde v Malawi Telecommunications Ltd. contended that
commencing proceedings in this Court should be avoided for costs.
The Industrial Relations Court does not normally award costs.
Litigation costs are reasons why litigants avoid coming to this Court. Fundamentally, the Employment Act promotes good industrial
relations through expedited, cheaper
and mediated processes. Counsel
should advise clients on litigation costs. That duty is pronounced in matters
litigants commence in this Court. This
Court orders costs on a subordinate scale.
If the plaintiffs, upon good advice from counsel, continue the action
here notwithstanding costs, this Court, in case she wins, should order costs on
the subordinate scale. This
approach however overlooks the successful defendant’s costs. Difficulties arise with unrepresented litigants. In such
situations the court, for the duty to parties, should appropriately advise the
parties of cost implications and probably invoke the transfer powers.
On the other hand defence counsel should apply to transfer proceedings
because of cost prospects on her client.
an inbuilt mechanism forestalls litigants’ cost implications.
The mechanism might not act reasonably and fairly in all circumstances.
It is quite another thing, however,
to dismiss the action or to refuse jurisdiction because of inundation,
costs or expedience. The European Court of Human Rights in Klass and
others, 6th September, 1978, series A,
No. 28, reenforces Likaku v Likaku. In Klass and others the
European Court on Human Rights confirmed the well established principle in the
cases that once a case is duly referred to it,
the court is endowed with full jurisdiction and may take cognaisance of
all questions of fact or of law arising in the proceedings.
There the European Court of Human Rights followed its decisions in De
Ilde, Ooms and Versyp of 18th June 1971, Series A, No. 12, pp 29-30; the Belgian
Linguistic case of 9th February 1967, series A, No. 5,
pp 18; the Handycide judgment of 7th December 1976, series A, No.
20 pp 20 and the case of Ireland v United Kingdom of 18th January 1978,
series A, No. 25, pp 63. A
matter, properly instituted before a court with jurisdiction is,
in my judgment, duly before that court.
That court has full jurisdiction and should take cognaisance of all
questions of fact or law emanating from those proceedings subject, of course, to
the power to transfer mentioned in Likaku v Likaku.
When considering transferring, either of its own motion or on
application, this Court, no doubt, must regard litigation costs, inundation in
the lower and the upper court, the complexity of the matter and the stage of the
this matter I carefully consider the claim the employer lodged. The action is
two pronged. First, the action
relates to the employer’s contractual rights.
The Industrial Relations Court under the Labour Relations Act and the
Employment Act has no jurisdiction over contracts. The High Court and magistrate courts have. The employer sues
for breach of a contract of employment. This Court, not the Industrial Relations
Court, has jurisdiction. The Union
can put the golden rule defence, namely, the breaches further a strike.
This cannot bar this Court’s and other courts’ overall jurisdiction on
breach of a contract.
the law now, only the employee can sue for unfair dismissal in the Industrial
Relations Court. The Employment Act and the Labour Relations Act do not give the
employer congruent rights in the Industrial Relations Court to sue the employee
for unlawful or wrongful termination, which there could be in any strike.
Consequently, the employer can properly sue in this Court or a magistrate court,
where the latter has jurisdiction.
the plaintiff’s action is in torts. A man cannot induce another to break a
contract with another. It is a tort to induce another to breach a contract with
another. The Industrial Relations Court has no jurisdiction over torts in the
employment place. Once the action has been properly commenced in this Court, the
employees can put defences such as
the golden rule or immunity. These defences never oust this Court’s
jurisdiction. The High Court, not the Industrial Relations Court, has
Court and the Industrial Relations Court share jurisdiction in matters where the
latter has jurisdiction.For the most parts the Labour Relations Act and the
Employment Act use the word ‘may’ in conferring rights to litigants. These
words can only be permissive. “‘May,’” said Cotton, L.J., in the Court
of Appeal in Re Baker, Nichols v Baker (1890) 44 Ch. D. 262, 269, “can
never do more than give a power.” Unless they use express words or there is
clear implication, statutes should not be read as to take away the jurisdiction
of superior courts (R v Moreley (1760) 2 Burr 1040 at 1042;
Pyx Granite Co Ltd v Ministry of Housing and Local Government
 AC 260,  3 All ER 1, HL; Customs and Excise Corms v Cure ans
Deeley Ltd QB 340,  3 All ER 641; Anisminic Ltd v Foreign
Compensation Commission  2 AC 147 at 170,  1 All ER 208 at 213,
HL, per Lord Reid; Pountney v Griffiths  AC 314 at 331, 334 
2 All ER 881 at 884, 886, 887, HL, per Lord Edmund-Davies).
Moreover statutory provisions conferring jurisdiction to inferior courts
must be construed strictly ( R v Bird, ex parte NeedsU  2 QB 340; R
v Board of Education [ This Court cannot dismiss the action just because the
Industrial Relations Court has concurrent jurisdiction.
Court can transfer the case to the Industrial Relations Court. The plaintiff
however seeks an injunction. The parties do not want damages. The employees and
the employer want to continue the employment, on better and negotiated terms, of
course. One reason for choosing this Court is, unlike the Industrial Relations
Court, the absence of limitations on ex parte interlocutory injunctions
for industrial action by employees (a strike) or employers (lockout). Of course
courts regard the limitation in section 54 (2) of the Labour Relations Act (per
Ackner, J., in Biscuits (UK) Ltd. v Fall,  IRLR 110. This
matter’s complexity and urgency make some transfer undesirable. The transfer
is however possible if the
Industrial Relations Court has jurisdiction on the plaintiff’s action. The
Industrial Relations Court has no jurisdiction in torts or claims by the
employer for breach of a contract. Only this Court, in view of the injunction
application, has jurisdiction. The matter is properly before this Court.
dismiss the motion with costs. I will hear the interlocutory injunction
Open Court this 16th Day of October 2001.