The High Court of Malawi has overturned an Industrial Relations Court (IRC) decision reinstating former Malawi Revenue Authority (MRA) deputy commissioner-general Roza Mbilizi at the public tax collector.
In a judgement dated May 6 2022, H i g h C o u r t J u d g e Mike Tembo observed that IRC chairperson Austin Msowoya had no jurisdiction to grant reinstatement, which is a final relief, as an urgent interim relief.
The judge said anything short of reinstatement, re-engagement and full compensation must qualify as urgent interim relief as it leaves room for a final award to be made by the IRC after a hearing.
Tembo said: “This court has thought long and hard about this matter and notes that although Rule 25 (1) (m) (i) of the Industrial Relations Court (Procedure) Rules leaves open the possibility of the Industrial Relations Court granting such final reliefs or remedies a s r e i n s t a t eme n t , re-engagement and compensation on an urgent interim basis, a true construction of the Employment Act gives the impression that such remedies can only be made, in terms of Section 63 of the Employment Act, after a hearing by the Industrial Relations Court.
“After such a hearing, the Industrial Relations Court will consider the wishes of the employee and the circumstances in which the dismissal took place including the extent, if any, to which the employee caused or contributed to the dismissal.”
The High Court’s decision followed an application by MRA for judicial review of Msowoya’s decision on August 18 2021 reinstating Mbilizi.
In the application, MRA through its lawyer Patrick Mpaka, among others, sought a judicial review after noting that under Section 74 of the Labour Relations Act, IRC cannot proceed to hear and determine any matter before it in the absence of any party to proceedings before it, unless proof of service of notice is given and no good cause is shown why a party is absent.
The section provides that if a party fails to attend or to be represented at the proceedings of the IRC without good cause, it may proceed in the absence of that party or representative.
MRA further argued that under Section 63 (1) (a) of the Employment Act, IRC can order reinstatement where an employee is to be treated in all respects as if he had not been dismissed.
MRA also submitted that Msowoya heard an application without notice to MRA and issued an order reinstating Mbilizi to employment and consequently restoring her full pay and benefits while holding her on suspension.
But Msowoya, who is the defendant in the case where Mbilizi is an interested party, had told the High Court that his office properly exercised powers under the Labour Relations Act and the Employment Act.
Following the IRC order in August 2021, MRA obtained a stay 19 days later on September 7 2021 at the High Court in Blantyre on the same.
But on January 31 2022, Malawi Supreme Court of Appeal judge Lovemore Chikopa sustained IRC order staying Mbilizi’s dismissal.
However, Chikopa ordered Mbilizi to present a security of over K75 million which she did not pay, according to court documents.