Backlog hits Malawi’s industrial court

Crisis has hit the Industrial Relations Court (IRC) in Malawi as poor funding and lack of panellists have resulted in a backlog of over 2 400 cases.

While the accumulated cases may mean that more Malawians are becoming knowledgeable about their employment rights, the backlog also shows how hard it is for a wrongly dismissed worker, for example, to access timely justice.

The backlog of between 1999 (when the court was established) and September 2012, stands at 2 480, records show.

During the period, the court registered 6 392 cases and concluded 3 912, according to a list the court compiled on Weekend Nation’s request.

This year alone—between January and September—the IRC registered 445 cases, but only 38 have been concluded, leaving a backlog of 407.

The court, running at K18 million (about $60 000) annual funding this year, first registered a backlog of two cases in 2001, one in 2002, four in each year of 2003 and 2004; 13 in 2005 and 19 in 2006.

But the figures dramatically jumped to 168 in 2007, 255 in 2008, 533 in 2009, 514 in 2010 and 560 last year.

Deputy chairperson of IRC Jack N’riva said in an interview last week the trend means more employees are becoming aware of the existence of the court and knowledgeable about their labour rights.

Shortage of panellists

But he also said the low number of panellists is not helping matters. He said although tight budgets are a problem, they are not the major setback. Rather, it is the shortage of panellists that cripples the court’s operations.

N’riva disclosed that it cost the court as low as K210 and as high as K70 250 to conclude one case.

N’riva said there are 10 panellists currently—four for Blantyre, four for Lilongwe and two for Mzuzu. These, he said, are not enough.

He said a proposal was made to increase the number to 20 and an amendment to the Labour Relations Act was recently made.

Principal secretary in the Ministry of Labour Wezi Kayira this week said after the amendment, the minister appointed 10 more panellists to bring the figure to 20, but the additions have not been gazetted; hence, cannot function.

Malawi Congress of Trade Unions (MCTU) secretary general Pontius Kalichero said labour issues should be handled with speed because some employees unnecessarily suffer for a long time when they are actually not in the wrong.

He said the IRC is doing a good job and appealed to government to give the court the required financial support to ensure smooth facilitation of justice.

Said Kalichero: “They always say justice delayed is justice denied. We would love to see the IRC clearing the backlog. As long as that backlog remains, it means somebody, somewhere, is not being attended to and has unsettled dispute, most likely an infringement of a right to earn a living.”

He said government must ensure the court is properly staffed if justice for employees is to be achieved.

Court’s system and standards

N’riva said the court follows the internationally recognised tripartite system where a decision/ruling is unanimous, based on majority voting among the conductor of the proceedings [chairperson or deputy chairperson] and the panellists.

Said N’riva: “The matters start with a pre-hearing conference. If both parties have failed the pleadings [statement of claim and statement of reply, respectively], the registrar or the chairperson or the deputy as the case may be, conducts a pre-hearing conference.

“A pre-hearing conference is aimed at trying as much as possible to resolve issues without necessity of trial. The conductor of the pre-hearing acts as a mediator and conciliator. They also advise the parties on the legal process of the claim so that parties can make informed decisions whether the matter is worth pursuing.”

He explained that where the trial is inevitable or where the parties proceed to trial, the aim of the pre-hearing conference is to isolate the matters for trial and sequence of events.

Some of the issues that need isolating include who is going to testify, in which order, and evidence to be adduced at the trial.

He said the conference may also decide whether the matter is of legal interpretation alone, and if so, the issue may be referred to trial by the court sitting without member panellists.

N’riva said: “The court has to make judgement within 21 days of hearing the matter. The decision of the court is final on factual matters and the parties may appeal on legal issues of jurisdiction.

“The lodging of the appeal is not a bar to the execution of the judgement unless the court or the High Court orders otherwise. For example, if the judgement finds an employer liable for unfair dismissal, its execution might entail assessing or enforcing the remedy for the applicant and employee’s attainment of judgement.”

The deputy chairperson said the court tries to make the procedure simple and straightforward and less technical.

He said the emphasis is on factual findings, and once a fact is established, for example, that there was unfair dismissal, the court concentrates on finding a remedy.

The applicants, he said, can appear in court without being represented by a lawyer or can choose to be represented by a trade unionist.

The whole idea, he said, is to make rules of procedure, evidence and pleadings relaxed because the court aims more at resolving substantive disputes than the procedural or evidential aspects.

Said N’riva: “Thus, some pieces of evidence that could ordinarily be inadmissible in other courts on technical grounds could be allowed in the Industrial Relations Court. It is well to always remember that the court is mostly composed of players on the labour market [the panellists] who are people managers and trade unionists.”

He said the court has meanwhile started sitting in districts such as Mulanje, Phalombe, Kasungu, Ntchisi, Nkhata Bay and Mzimba to deal with labour disputes there and then.

He disclosed that there are times the court conclude matters in 15 minutes.

N’riva said the establishment of the IRC has helped reduce congestion in the High Courts, adding the major advantage is that IRC is a specialised court.