The Malawi Revenue Authority (MRA) has won a judicial review case against the Industrial Relations Court (IRC) ruling reinstating former Deputy Commissioner General of the public tax collector, Roza Mbilizi.
Mbilizi sought relief from the IRC in her claim of unfair dismissal from MRA. The IRC ruled in her favor and ordered her reinstatement with full benefits
The order was made ex parte.
However, MRA applied for a judicial review and an injunction, including an order putting aside implementation of the IRC ruling, which High Court Judge, Dingiswayo Madise granted.
But Mbilizi later joined the case as an interested party and further asked the court to reverse Madise’s decision to set aside the stay order and injunction on the basis that she would be affected by the court processes.
Besides, she argued that the case can proceed while the stay order and injunction are in place.
During a judicial review hearing, MRA lawyer Patrick Mpaka said IRC erred in ordering for Mbilizi’s reinstatement with full benefits without hearing his client.
He argued that IRC through its order effectively issued an injunction stopping the claimant from effecting the decision to terminate Mbilizi’s employment in spite of due disciplinary process and despite valid reasons reflected in the notice of disciplinary hearing and letter of dismissal and that the defendant entered on micromanagement of the claimant as an employer.
He further argued that “the impugned Order of IRC had no foundation in fact and in law and was made ultra vires, without justification and without due notice to the claimant”.
Mpaka also stated that the IRC order did not address the point why the claimant did not attend the inter partes hearing where it could have raised the fact and that the ex parte decision was wrongly made.
In his ruling delivered on April 6, 2022, High Court Judge Mike Tembo agreed with MRA that the Labour Relations Act provides that there must be at least 48 hours’ notice to the respondent with a reasonable opportunity to be heard the respondent.
“Rule 25 (1)(m) (i) of the Industrial Relations Court (Procedure) Rules provides that the Industrial Relations Court shall grant urgent interim relief pending a decision by the Court after a hearing. There is no provision that the grant shall be made ex parte or be without notice. The default position is therefore that the applications shall be heard on notice to the respondent.
“Interim relief cannot just be granted without hearing the respondent who, in this case, was condemned without being heard on the allegation of unfair dismissal. That is not the scheme under the Labour Relations Court Rules. IRC could not therefore on an ex parte basis without explaining exceptional circumstances grant the urgent interim relief. ,” reads the ruling in part
He further ruled that the end result is that the manner in which the IRC proceeded is that it assumed that the MRA unfairly redeployed and later disciplined Mbilizi.
“This was highly unusual and prejudicial having been assumed without hearing the MRA. The urgency not to have a noticed hearing was not demonstrated. 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 IRC, therefore, has no jurisdiction to grant reinstatement, which is a final relief, as an urgent interim relief. However, 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 Industrial Relations Court after a hearing,” reads the ruling
The IRC order, Said Justice Tembo, showed that it ordered the Mbilizi to be treated as if she had not been dismissed and to remain on suspension with full pay and all benefits.
“That was reinstatement and it is not available as an urgent interim relief on ex parte basis or at all,” said Tembo
Mbilizi was dismissed from MRA in July 2020 by President Lazarus Chakwera after her arrest in connection with fraud-related charges, particularly the alleged importation of cement worth K3.2 billion by former President Peter Mutharika’s aide.
She took the matter to the Supreme Court after High Court Judge Mike Tembo maintained an earlier order issued by another High Court Judge Dingiswayo Madise setting aside the IRC ruling which reinstated her after her dismissal.
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