IN THE INDUSTRIAL
RELATIONS COURT OF MALAWI

MATTER NO.
IRC 148 OF 2000

 BETWEEN:

 MOLENI
TENGANI ……………………………………… APPLICANT

 AND

 P.G.
INDUSTRIES (MW) LTD ………………………… RESPONDENT

 CORAM

 R. Zibelu
Banda (Ms) Deputy Chairperson

Chalamanda,
Counsel for Respondent

Mwafulirwa,
General Secretary for Malawi Congress

of Trade Union
assisting the Applicant

Ngalauka,
Court Clerk

 RULING

This is a case under the
Workers’ Compensation Act. The facts are that the applicant was
employed by P.G. Industries Limited in
1969 in the mirror making
section. In 1973 he was involved in an accident in the course of his
employment. He was taken to hospital
where he was treated. The degree
of  permanent incapacity was assessed at 20%.

In 1975, the
applicant was paid full compensation for the injury. The respondents
submitted and tendered in this court a payment voucher
in the sum of
Malawi Kwacha 374.40, paid on 30 August 1975( exhibit RP2).

Nineteen 
years later in 1994, the applicant was sent back to the hospital for
examination. At this second visit to the hospital,
he was re-examined
and his condition was discovered to have worsened. His degree of
permanent  incapacity was assessed at 70%.

 He
went back to P.G. Industries where he submitted his medical report.
The employer was not satisfied with the results. Especially,
since
the applicant had had an earlier examination in 1975 which put his
degree of incapacity at 20%.

The employer
sought clarification from the Labour Office and the department of
workers compensation. The employer sought clarification
on the new
assessment of the applicant’s condition in a letter of 2^nd
June, 1995 signed by A.A. Singano and letter of 5^th
September, 1995 signed by E. Patel. The clarification was provided in
the form of a medical report of 26^th October, 1994 and an
accompanying note from a medical doctor, Dr Mateus of 26^th
August, 1997 and also a letter from the labour officer of 22^nd
June, 1995 signed by F.F. Gonani.

 Of
interest is a letter written on 26^th
February, 1999 by A.M.A. Machado writing for Workers’ Compensation
Commissioner, where he is advising the applicant, copy to P.G.
Industries, that the applicant’s case was a closed chapter (in
paragraph d). In other words, he advised the applicant he had no
case
against the respondent basing on the facts before him i.e. A.M. A.
Machado. His reasons were outlined in this letter. I am not
at
liberty to comment on the points raised by Machado in that letter
because that is the issue for the Chief Resident Magistrate
to decide
as I show later in my ruling.

It must be
noted that there had been several prior communication between the
labour office, the applicant and the workers’ compensation
commission dating back as far as 1996.

JURISDICTION

After hearing both
parties, I adjourned to read the relevant laws and make a
determination. It is unfortunate that after all hopes
raised in the
applicant considering how long it has taken for him to finally
address a court of law, this court can not grant the
remedies prayed
for.

The reason
is simple. This court has no jurisdiction under either the Workers’
Compensation Act 2000 or Workers Compensation Act
1990 to 
entertain such claims. The Workers’ Compensation Act 2000 does not
apply in this case by virtue of transitional section
70 of the said
Act.

THE
LAW

This claim arose some time
in 1995 after the re-examination where 70% degree of permanent
incapacity was certified. The applicable
law under the circumstances
was the Workers’ Compensation Act 1990 (hereinafter referred to as
the Act). Under this Act, an employee
who gets injured out of or in
the course of his employment is entitled to compensation. In such
cases the role of workers compensation
commissioner (hereinafter
referred to as commissioner) is very crucial. The applicant did all
that he was supposed to do under the
Act to get compensation.

The
applicant was asking the commissioner to find that his degree of
incapacity had increased basing on the medical report of 26 October
1994 and as confirmed by Dr Mateus in a letter of 26 August 1997.

The commissioner has
powers under section 32 (1)(d&e) of the Act to make a
determination basing upon opinion of a medical practitioner
that the
degree of incapacity has increased. After this finding, the
commissioner has powers under section 32(2) to increase compensation.

The
applicant being dissatisfied with the reasoning for the decision of
26 February, 1999, by the commissioner, he lodged that
dissatisfaction
with the commissioner through a letter of 19 July
1999 signed by G.R. Chumachiyenda secretary General of Building
Construction Civil
Engineering and Allied Workers Union. The letter
indicated the desire to take the case elsewhere for adjudication.

Under
section 37 of the Act, the applicant has the right of appeal within
21 days of decision of commissioner or within such further
period as
the court of the Chief Resident Magistrate (CRM) may on good cause
shown. The court of the Chief Resident Magistrate, is
the one that
has appellate jurisdiction to entertain such claims from the
commissioner.

LIMITATION
PERIOD

First, it
must be noted that under both the 1990 and 2000 Acts, the Limitation
Act does not apply to claims for compensation. Secondly,
the Act of
1990 allows the applicant to appeal against decision of commissioner
within 21 days or such further period as the court
may deem fit. The
applicant in this case, is unrepresented. He has all along been
working with a member of trade union, a  lay
man as well.
Further, due to the complexities in this case, the applicant kept
moving from one institution to another, including
the, Labour Office,
Works Compensation department, the hospital, and the employer. It is
proper to conclude that the applicant believed
there was  light
at the end of the tunnel and he kept going.

The matter was never laid
to rest by the applicant at any point. He continued to look for a
remedy. The employers defended themselves
in court basing on this
same letter from the commissioner (26 February 1999) that the
applicant had no case.

Despite the said letter of
the commissioner, the applicant continued to seek a remedy from the
respondent. He lodged his case in the
Industrial Relations Court,
on18 September 2000. This case has been with this court since then.
Meanwhile there was still communication
with the workers compensation
commissioner. Some of the letters include the letter of 8 January,
2001 and 26 October 2000 from the
secretary General of Building
Construction Civil Engineering and Allied Workers Union to the
commissioner and labour officer.

The applicant was still
pursuing his case although he was dealing with the wrong institutions
especially after  1999. All in
all, the delay in making the
appeal to the Chief Resident Magistrate court in this matter should
be looked at carefully bearing in
mind all the circumstances of this
case including the ones observed by this court.

FINDING

It is clear from a reading
of the Workers’ Compensation Act 1990 and the laws on Industrial
Relations Court that it is only the
Chief Resident Magistrate Court
that can entertain this case on appeal and order the necessary
remedies. If the claim was being lodged
now after the assessment of
1994, the applicant would still have had recourse with the CRM court
as institution of first instance
as per proviso to section 70 of the
Workers Compensation Act 2000.

I therefore
order that since the workers’ compensation commissioner had made
its determination regarding this case, the applicant
has the right of
appeal against that determination before the Chief Resident
Magistrate Court.

Pronounced
in open
court this 19th day of July, 2002 at Limbe.

R. Zibelu Banda (Ms)

DEPUTY CHAIRPERSON