IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI

LILONGWE REGISTRY

MATTER
NO. 22 OF 2001

BETWEEN:

S.S.
PHIRI……………………………………………………APPLICANT

-and-

ADMARC………………………………………………….RESPONDENT

CORAM: HON.
M.C.C. MKANDAWIRE, CHAIRMAN

Applicant,
present (unrepresented)

Respondent – present,
represented by Limbe of Counsel

Mrs. Mzumara –
Official Interpreter

R
U L I N G

This matter came for a full hearing
today. It is a matter in which the Applicant has brought up the
matter against the Respondent
on a complaint of unfair dismissal.
The Respondent have denied the trade dispute.

Before the matter
commenced for hearing, Counsel for the Respondent raised a
preliminary objection. In his objection, Counsel raised
the issue of
res judicata. He told the Court that the Applicant had
brought up the matter before the Office of the Ombudsman. On the
28^th of February 2002 a determination was made by the
Ombudsman whereby the Applicant’s complaint was dismissed. The
Respondent’
Counsel therefore is of the view that this matter is re
judicata and that it can only go to the High Court of Malawi
on judicial review.

On his side, the
Applicant said that he had indeed lodged a complaint with the
Ombudsman’s Office in March 2001. He waited up
to September 2001
when he was advised by his colleagues to lodge the matter with the
Industrial Relations Court. That he did. As
the matter was with the
Industrial Relations Court the Ombudsman called him for hearing which
took place in February 2002. Later
on he got a determination through
the post office which found him rather late. As he was contemplating
what to do next, he also
got a phone message that he was wanted by
the Court today for a hearing. He is therefore wondering as to how
he can pursue the judicial
review with the High Court of Malawi in
view of the expiry in the 21 days within which he was supposed to
apply to the High Court
for judicial review.

Let me first thank
Counsel for bringing these developments to the knowledge of the
Court. When this matter was filed with the Court
on the 25^th
of September 2001, the Applicant had indicated on form 1 (the
Applicant’s Statement) that the matter had just been brought before
the Office of the Ombudsman in March 2001. The impression created
was that that was just an attempt to sort out the dispute between
the
two parties.

This Court is aware that
the Office of the Ombudsman is not a Court of Law. Thus matters
determined by that office cannot be strictly
called res
judicata in this Court. But whilst that is the case, this
Court is also aware that the Office of the Ombudsman has been given a
mandate to
investigate complaints where there is no practicable
remedy in a Court of Law. This matter having been filed before the
Ombudsman,
the Ombudsman found it fit to investigate and a public
enquiry was thereafter instituted. A determination was made. This
Court
does recognize the role the Office of the Ombudsman plays in
protecting the human rights of the citizens of this country, some of
which rights are labour rights of which this Court has got the
mandate to adjudicate upon.

I have carefully listened
to Counsel’s objection as to why this matter has to be discontinued
in this Court. This Court is of
the view that since the matter was
already brought before the Office of the Ombudsman and since a
determination was already made
on the 28^th of February
2002, the next step that the Applicant would take if aggrieved or
dissatisfied by the determination handed over by the
Ombudsman is to
apply for judicial review before the High Court. I am aware that the
Applicant has already expressed his anxiety
in relation to the
already expired 21 days within which he was supposed to apply for
judicial review. But I have taken note of his
mitigation that he got
the determination through the post office rather late. I am also
aware that the Applicant is unrepresented
and may not have clearly
understood the implication of the 21 days period. The High Court,
where this judicial review will take
place is likely to have a human
rights approach in considering whether it should construe the 21 days
period in a very rigid way.

I therefore advise that
the Applicant should proceed to apply for judicial review before the
High Court. This ruling shall also
be forwarded to the High Court
Registrar.

As for this case in the
Industrial Relations Court, I do order that it should be treated as a
closed chapter unless the High Court
otherwise directs.

MADE this 7^th
day of May 2002 at the Industrial Relations Court, Lilongwe.

M.C.C. Mkandawire

HON.
CHAIRMAN