INDUSTRIAL RELATIONS COURT

SELECTED PART OF THE LAW WHICH ARE MOSTLY VIOLATED

Employment Act Cap. 268

  • Casualisation

 Interpretation of Section 3 as amended by Act number 15 of 1997

This section has been abused resulting in wholesale casualisation of workers.  Some employers have purported to re-contract workers on six monthly basis thus contravening the section.

 

  • The Right to be Heard

Section 26A as amemnded by Act number 15 of 1997

An employer shall not terminate the services of an employee on grounds related to performance of an employee without affording the employee an opportunity to be heard.  There is a need to be heard on the issues pertaining to conduct or performance of a concerned employee.  To terminate employment before being heard amounts to the breach of natural justice.

For instance, the bank employees whose employment is terminated under Article 6 of their Articles of employment, giving right to the employer to dismiss the employee by giving a one month notice in lieu of notice, contravenes the above said section and the ILO Convention number 57 which stipulates that a person must be charged and has a right to be heard.

Payment of all Dues on the Date of Dismisal

 

Section 26  as amended by Act number 15 of 1997, states that, “Where an employee is summarily dismissed, he shall be paid on dismissal the wages and working or other allowance due to him up to the date of such dismissal.  The employers usually do not wish the amount due to such employees.

Redundancy

 

Section 26B   as amended by Act number 15 of 1997, The Section has been abused by employees who seek to be redressed under this section even though they are not governed under the oral contracts.  This section only applies to employees who contract their employment contracts under oral contracts.

 

DISPUTE SYSTEMS

There are two dispute systems : -

    • - Alternative dispute resolution
    • - Main Court Sessions

Alternative Dispute Resolution

 

Conciliation under the Act Cap. 269, Sections 75 to 77

 

When a dispute arises on salary and other conditions of service, the matter may be refered to a conciliator or a board of conciliator.

A Conciliator is an independent part who will help parties settle their disputes.

The Commissioner will be informed if a dispute is not resolved by the conciliator.  The commissioner take the matter to the Minister who will deal with it and if it is settled, then the Minister will approve the settlement and send it to the court.  Once the court approves it, it will be executed like a judgment of the court.

 

The Industrial Relations Court (Abitration and Mediation Procedure) Rules 2002

 

      1. A party lodges a complaint in the IRC. 
      2. A complaint is allocated to a Judge or Court
      3. A Judge or Court will refer the matter to mediation

 

At Mediation

The mediator is an impartial person who is trained to assist parties reach a settlement.  Both parties must avail themselves before a mediator.  A fee of K150,000 is paid by each party to the mediator for the said sitting.

If a complainant does not avail himself without giving reasons for his failure to do so, the mediator will inform the court and the court may dismiss the matter. 

If the respondent does not appear before the mediator, the mediator will inform the Court and the Court will hear the Complainant only and enter judgment.

If settlement is reached with the mediator, the mediator draws the settlement and the parties file it in court.  It will be executed like a judgment.

 

Implications of the Approved Settlements

An approved settlement is voluntarily entered into and therefore it cannot be appealed against unless a party can show a cause for appealing.

 

Arbitration

Like mediation, it goes to arbitration by referral of the court and it is only where an arbitration clause is stipulated or where the court feels that the matter be dealt with by an arbitrator.  Parties are allowed to choose an arbitrator unlike in mediation where the court chooses a mediator.  An Arbitrator hears evidence and gives awards and once the awards are registered in the Court, there are executed like a judgment of the Court.

b. Court Sessions
the requirements:

  • a complaint filed in court within 30 days of the incident complained of.
  • A complaint form is obtained at the court at a fee.
  • A complaint form is accompanied by an affidavit in support of a complaint. The format of the affidavit is also obtainable at the court at a fee.
  • If not filled within 30 days of the incident, then the complainant must seek leave to file his complaint out of time. The complainant has to have summons issued accompanied by an affidavit in support to file a complaint out of time.

Exhibits stated in the affidavit must be clearly marked consecutively as mentioned with the initials of the person swearing the affidavit e.g. if a name is Chavuma Choma then the first exhibit will be marked “CC1” “CC2” etc.

 

Important exhibits.

  • Letter of appointment or date of contract if oral contract
  • Letter of dismissal, discharge or retirement or date of incident if verbally done.
  • Conditions of service (if any)
  • Other relevant documents such as pay slips or correspondence on the issue.

Who can be sued.

  • Parties must show that there exists employer and employee relationship
  • A union and employer relationship
  • If the complaint is deceased an administrator with letters of administration or an executor named in the will.
  • If the respondent is in liquidation the liquidator if in receivership the receiver

 

Numbers of documents to be filed
The minimum copies to be filed is 6 copies of each document filed or more if there are more parties. The documents are distributed to the parties concerned, the court and the members of the court.

 

Deadline for filing complaints

The time within which a complaint has to be filed in court is limited by CAP 269 Section 85 (3) as amended by act number 30 of 1997

It is mandatory that a complaint be filled within 30 days of the occurrence of the incident complained of

The proviso to the section awards a person pursuing administrative channels an extension of 90 days after exhausting the said administrative channels provided the said administrative channels were instituted within a 30day period of the occurrence of the incidence.

It must be noted that the period of pursuing administrative channels has no time limit this was held in the case of.

Section 85 (6) extends to the parties who had been affected by the same facts and issues decided upon by the court and not hindered by the time limit, they can file their complaint so long as they are of the same class as the parties who had sued earlier

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REVISED STATUTORY INSTRUMENT

Statutory Instrument (SI) - The Minimum Wages and Conditions of Employment Act. Click below to view detailed SI documentation.