By Deogratias Mmana:
After the Industrial Relations Court (IRC) stayed the firing of some employees at the Malawi Communications Regulatory Authority (Macra) by the Ombudsman, the High Court has thrown out the Authority’s application to dismiss the IRC order.
On June 28, 2021, IRC Chairperson, Austin Msowoya, ordered that the fired employees be deemed to be on leave on half pay from the date of termination of their employment until conclusion of the matter or until a further order made by the court.
IRC also ordered that the employees should surrender motor vehicles assigned to them to the IRC and that such vehicles be kept at the High Court of Malawi premises at Chichiri.
But Macra lawyer, Thokozani Chimbe on July 8, 2021 asked the High Court to dismiss the IRC orders as they were ‘egregiously and manifestly wrong and likely to prejudice the ends of justice’.
Chimbe argued that IRC lacked jurisdiction to make the said orders. She also argued that the IRC made orders that were not asked for by the defendants and that the orders were unfair treatment towards Macra.
The application was made before Judge Mandala Mambulasa. It came under miscellaneous civil review case no 67 of 2021 between Macra and Daniuel Datchi, Godfrey Itaye and others.
The matter that was brought for determination was whether the High Court can exercise its general supervisory and revisionary jurisdiction over an order or decision made by the chairperson of the IRC as envisaged under section 26 (1) of the Courts Act.
In his ruling on July 15, 2021 in Blantyre, Mambulasa threw out Macra’s application.
“In view of the foregoing, it is this Court’s finding and determination that it has no jurisdiction to hear or entertain the claimant’s application for review of the order of the Chairperson of the Industrial Relations Court made on 28th June, 2021 under section 26 (1) of the Courts Act. The application for review is therefore declined,” reads the order.
Mambulasa argued that if Parliament had wanted the IRC to be under the purview of the High Court in terms of general supervisory and revisionary jurisdiction, it would have specifically amended the Courts Act to include it.
“Parliament did not and has not done so until now in spite of the fact that the Industrial Relations Court has been in existence for well over two decades now.
“Similarly, there is no corresponding provision in the Labour Relations Act conferring a general supervisory and revisionary jurisdiction on this Court over orders or decisions of the Chairperson of the Industrial Relations Court,” reads ruling.
It adds: “Jurisdiction cannot be assumed for mere purposes of convenience in this matter. Jurisdiction is statute-conferred.”
The ruling means that Macra will have to continue paying half salaries to all the employees that were fired by the Ombudsman. Macra will also have to continue providing medical scheme services to the employees.
Former Ombudsman Martha Chizuma fired several employees at Macra because she said their employment was illegal. The employees challenged the dismissals in court.