IN THE INDUSTRIAL
RELATIONS COURT OF MALAWI

BLANTYRE REGISTRY

MATTER NO. IRC
293 OF 2002

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. (Croner’s
Employment Law Bulletin, (October 1992) D149.

Services of the applicant
were terminated with effect from 1^st 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
applicant’s 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.
                                          

R.
Zibelu Banda (Ms.)

DEPUTY
CHAIRPERSON