IN THE INDUSTRIAL
RELATIONS COURT OF MALAWI

BLANTYRE REGISTRY

MATTER NO. IRC 11
OF 2001

BETWEEN:

A.J. PIETERSE
…………………………………………… APPLICANT

AND

STANCOM AVIATION
SERVICES LTD………….1^ST RESPONDENT

STANCOM TOBACCO
COMPANY (MW) LTD….2^ND RESPONDENT

CORAM

R.Zibelu Banda
(Ms) Deputy Chairperson

K. Savjan SC, Counsel
for the respondents

Njobvu, Counsel for
the respondents

R. Kasambara, Counsel
for the applicant

Drummond, assisting
counsel for the applicant

E. Lora, Court clerk

R U L I N G

Taking 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.

JURISDICTION     

The respondents objected
to jurisdiction of this court on the following grounds as per amended
IRC FORM 2:

1. 
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.

2. 
The
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.
 

3.  The
Industrial Relations Court is not the appropriate forum to determine
the Applicants action because:-

(a) 
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.

(b) The
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.

  
     Counsel
on 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 gratuity benefits.

   
    Upon a
careful consideration of the issues raised in relation to
jurisdiction, I hereby make the following observations and findings:

1.     
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.

2.    
If the court finds that there is a contract of employment between the
parties, the question is whether
the respondents breached it.

3.     
After that finding the court will look at the remedies sought by the
applicant and determine whether
they fall under this court’s
jurisdiction.

4     
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.

5.    
This court also finds that it has jurisdiction to hear and determine
the issues raised in the statement
of claim.

6.    
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.

7.    
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.

8.    
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.

A 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)

The
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.

RULES OF
PROCEDURE AND EVIDENCE

Counsel
for the respondents raised the issue of rules of procedure applied in
this court and rules of evidence. His contention was
based on section
71 of the Labour Relations Act, which allows this court to dispense
with formalities and rules of evidence as applied
in civil
proceedings. The fact of the matter is that this court does and will
dispense justice according to applicable law and each
case is decided
on its own merits. This court cannot prevent a party from demanding
the required standard of proof in a case where
ends of justice
demand. The section referred to by counsel is merely permissive. In
other words, the court is given discretion to
relax rules of
procedure and evidence to meet the exigency of a particular case in
order to achieve justice. In fact this provision
was deliberate to
cater for a majority of the users of this court who will not have
services of legal counsel. (See section 73 of
the Labour Relations
Act 1996)

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.

CONCLUSION

Finally, the
application to have this matter removed from this court on grounds of
lack of jurisdiction is denied.

ADJOURNMENT

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.

Pronounced
in chambers this
18^th
day of June, 2002 at Limbe.

R. Zibelu Banda (Ms)

DEPUTY  CHAIRPERSON