IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

THYOLO
REGISTRY

MATTER
NO. 01 OF 2006

BETWEEN

MUNLO AND
ANOTHER……… …………………………………..APPLICANTS

-and-

CHIWALE ESTATE
LTD……... …………………………………. RESPONDENT

CORAM: R Zibelu
Banda (Ms); Chairperson

Malijani; Employers’
Panelist

Kajombo; Employees’
Panelist

Bwanausi; For Respondent

Applicants; Present

Nyabanga; Official
Interpreter

JUDGMENT

1. 
   Dismissal-Complaints of
   unfair dismissal-Section 62 Employment Act- Jurisdiction-District
   Labour Officer-Section 64 Employment
   Act-Disputes and
   Complaints-Labour Officer to attempt to resolve-Court-Jurisdiction
   on referral or Appeal from Labour Officer-Section
   62

2. 
   Labour Officer-Role of
   Labour Officer-Conciliation-Where Labour Officer secures an
   agreement parties to comply

3. 
   Matter not to be
   entertained in court where a party refuses re-instatement or
   reengagement without good cause

4. 
   Where reinstatement or
   reengagement is offered there can not be a claim for unfair
   dismissal

Back
ground

The two applicants, Munlo
and Makabuli were employees of the Respondent. They were suspended on
7 March 2005 on allegations of theft
of cattle. They complained to
the District Labour Officer for Thyolo. After discussions the
respondent offered to re-engage the
applicants on 7 December 2005 and
pay them salaries for the period that they were on suspension. The
applicants refused offer of
re-engagement and instead came to this
court to claim compensation.

In their
evidence in this court the applicants did not show why they refused
the offer of re-engagement. The court found that the
matter was
frivolous, vexatious and an abuse of court process and accordingly
dismissed the action for unfair dismissal on the
following reasons:

The legal
position is that where the law sets down procedures and steps to be
taken in addressing a labour dispute, all parties
are legally obliged
to adhere to such procedural steps; carrying on otherwise would
create jurisdictional problems and render the
object of the law
nugatory. The courts must be the first to enforce such processes so
that the rule of law prevails over anarchy.

In all
cases of unfair dismissal as provided by the law, the complaint comes
to the Industrial Relations Court by way of referral
from the Labour
Officer. H/se refers unresolved matter to the Industrial Relations
Court stating the reasons why the matter could
not be resolved at the
Labour Office. Section 62 of the Employment Act provides that:

1. Within
   three months of the date of dismissal, an employee shall have the
   right to complain to the District Labour Officer that
   he has been
   unfairly dismissed irrespective of whether notice was given or not.

2. The
   right of an employee to make a complaint under this section shall be
   without prejudice to any right that he may enjoy under
   a collective
   agreement.

3. Where
   the District Labour Officer fails to settle the matter within one
   month the matter may be referred to the Court in accordance
   with
   section 64(2) and (3).

Section
64(1) of the Employment Act provides that:

any
person having a question, difference or dispute as to the rights or
liabilities of any person, employer or employee under
this Act or a
contract of employment may bring the matter to the attention of a
labour officer who shall attempt to resolve the
matter.

In this
matter the parties appeared before the District Labour Oficer where a
conciliation process resulted in the respondent re-engaging
the
applicants. Having reached that understanding the parties had no
dispute before this court relating to termination.

Order

The court orders the
respondent to pay the applicants salary arrears from the date of
suspension on 7 March 2005 to 7 December 2005
when they were offered
re-engagement. The respondent may re-engage the applicants if the
respondent’s operational requirements
so demand.

Any party
aggrieved by this decision is at liberty to appeal to the High Court
in terms of section 65 (2) of the Labour Relations
Act.

Made
this 4^th day of March 2008 at THYOLO

Rachel
Zibelu Banda

CHAIRPERSON

Aiman
Malijani

EMPLOYERS’ PANELIST

Nick
Chifundo Kajombo

EMPLOYEES’ PANELIST