IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI
BETWEEN:
SUNDUZWAYO
MADISE
APPLICANT
AND
ESCOM
RESPONDENT
CORAM:
R. Zibelu Banda(Ms.),
Deputy Chairperson
Chalamanda,
Counsel for Applicant
Respondent
not Present
Galauka,
Court Clerk
RULING
This is an ex
parte application for an urgent interim relief made under Rule 25 (1) m
(i) of the Industrial Relations Court (Procedure) Rules. The applicant is
seeking an order that he be reinstated or that his privileges as an employee of
respondent be restored to him.
After reading the
affidavit of counsel in support of the application and after having recourse to
other relevant law and material on the subject, I make the following
findings:
1.
An application for urgent interim relief by its nature must be made
expeditiously. There is no specific procedure in the Labor Relations Act
1996, on the period within which to file such application.
However, from practice in this court, see generally Veronica
Chinkondenji v. Malawi Stock Exchange Limited (Industrial Relations Court, (IRC) Matter no. 40 of 2002,
unreported), and procedure from other jurisdictions with comparable legal
systems to ours, it is clear that such applications must be made expeditiously.
For instance, in England, such application should be made before the end of
seven days following the effective date of termination of services. (Croners
Employment Law Bulletin, (October
1992) D149.
Services
of the applicant were terminated with effect from 1st July 2002. I am
not convinced that the applicant was too busy to file this application before
now. It took him a whole month and some days to lodge this application.
2
It is trite law that in applications for urgent interim relief as sought
by applicant, it must be shown that the applicant has a good chance of
succeeding at the main hearing for unfair dismissal. I however cannot determine
whether the applicant has a good chance of succeeding in the main action on the
following grounds:
2.1
The respondents were not served with notice of this application.
2.2
The respondents were not given a chance to appear in these proceedings
and be heard on the applicants application.
The
applicant is seeking an order, under general discretionary powers of the court,
as provided in Rule 25 (1) m (i) of the Labour Relations (Procedure) Rules
which, in essence states as follows:
..the court may on
application or of its own motion at
any time; grant an interim relief pending a decision by the court after
hearing;
In the absence of specific rules of procedure in such application the court must endeavour to handle the case with fairness and equity. In my view, this can be achieved by affording both parties the right to be heard on the matter.
The
respondents were not served with notice
of hearing. Although there is no specific procedure on the requirement for
notice, consideration should be made to the nature of the relief sought. The
applicant seeks to go back to work, justice would demand that the other party
should be aware of such application through service of notice.
Further,
justice would demand that before a court makes such order it should afford the
other party the right to be heard on the matter. This view is supported by the
procedural requirements in injunctions, which, are similar orders to this
application. In such applications, this court demands that the other party be
served and given at least 48 hours before hearing. It
is also a requirement that the respondent must be heard on the
application, (section 54 of
the Labour Relations Act.) I
am inclined to use this practice and procedure and the procedure used in other
comparable jurisdictions.
Finally,
it is clear that the application fails to satisfy minimum procedural
requirements for fair hearing and practice used in this court. Granting the
order sought by the applicant would be tantamount to defeating the objectives of
the Labour Relations Act 1996. In this respect, Rule 25 (4) of the
said Act states that;
in
the exercise of its powers and discretion and in the performance of its
functions, the court may act in such manner as it may consider expedient in the
circumstances in order to achieve
the objectives of this Act.. (Rule 25 (4))
In
view of the above findings therefore, I dismiss this application in its
entirety.
Pronounced
in chambers
this
day of
2002 at LIMBE.