Ackim Chakana and 14 Others v Malawi Revenue Authority (IRC Matter Number 39 of 2026) [2026] MWIRC 15 (7 April 2026)

sA REPUBLIC OF MALAWI IN THE INDUSTRIAL RELATIONS COURT OF MALAWI PRINCIPAL REGISTRY IRC MATTER NUMBER 39 OF 2026 BETWEEN: ACKIM CHAKANA & 14 OTHERS……………………..………………………………...APPLICANTS AND MALAWI REVENUE AUTHORITY………….……………..………..………………..RESPONDENT CORAM: WYSON CHAMDIMBA NKHATA (DEPUTY CHAIRPERSON) Mr. Msuku- of Counsel for the Applicants Mr. Kambumwa- of Counsel for the Respondent Mr. Zakaria- Court Clerk and Official Interpreter RULING ON MOTION TO DISPOSE MATTER ON A POINT OF LAW INTRODUCTION This is a ruling on a motion brought by the Applicants seeking to dispose of this matter on a point of law. The motion arises in proceedings commenced before this Court in which the Applicants challenge the termination of their employment by the Respondent, the Malawi Revenue Authority. In their originating process, the Applicants seek, among other relief, reinstatement to their former positions and compensation for what they allege to be unfair labour practices. The matter has not followed a straightforward path. Shortly after the commencement of the action, the Applicants obtained an ex parte order of injunction restraining the Respondent from enforcing the termination of their employment, effecting transfers, and recruiting for the positions previously held by the Applicants. The Respondent reacted by entering a defence and by initiating interlocutory proceedings aimed at staying and setting aside that injunction. Those processes have remained pending, their determination having been delayed following adjournment of the scheduled inter partes hearing. It is against that procedural backdrop that the present motion was brought. By their application, the Applicants invite this Court to determine the dispute in limine, on the basis that the material facts are either admitted or not genuinely in dispute, and that what remains for determination are questions of law which do not require ventilation through a full trial. Put differently, the Applicants contend that the case is ripe for final disposal without the need for oral evidence. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 1 The Respondent opposes that course. It contends that the threshold for disposing of a matter on a point of law has not been met. In its view, there remain issues, both factual and legal, which are contested and which ought properly to be resolved at trial. It further raises a procedural objection, arguing that there are prior interlocutory processes still pending before the Court, and that it would be inappropriate to determine the substantive dispute while those matters remain unresolved. The Court is therefore called upon to determine, at this stage, whether this is an appropriate case for disposal on a point of law. That inquiry requires the Court to consider not only the nature of the issues raised in the pleadings and affidavits, but also the procedural posture of the matter and whether the interests of justice favour an early determination or a full trial. It is to that question that the Court now turns. The Applicants’ Case in Support of the Motion The Applicants’ case in support of the motion is presented through the affidavit sworn by Counsel Leton Mauya Msuku in support of the motion, the skeleton arguments filed on their behalf, the pleadings already on record, and the oral submissions made at the hearing. Read together, the Applicants’ position is that this is a proper case for disposal on a point of law because the material facts giving rise to the dispute are either expressly admitted by the Respondent or are otherwise not genuinely contested, and that what remains for the Court’s determination are legal questions that do not require resolution through oral evidence at trial. In his affidavit, Counsel Msuku begins by stating that the Applicants commenced the proceedings claiming unfair dismissal. He then explains that, after filing the matter, the Applicants sought interim relief and placed before the Court affidavit evidence setting out the factual basis of their claim. He further notes that the Respondent later filed its own applications directed at discharging the interim order and, in doing so, also placed affidavit evidence before the Court. It is at that point that he deposes that through the affidavits filed by the Respondent in the interlocutory proceedings, the Respondent has in substance admitted the factual narrative originally advanced by the Applicants. In particular, his position is that the Respondent’s affidavit evidence confirms the recruitment process, the Applicants’ participation in that process, their successful interviews, their engagement on probationary employment, the subsequent termination of that employment, and the later advertisement of the very positions they had occupied. On the basis of those matters, he states that he verily believes there is no dispute as regards the facts of the present case. He then expressly repeats that position and says that even the pleadings support it. On that footing, he deposes that this is a proper case for the Court to dispose of without trial and further states his belief that, on the facts of the case, the Applicants have established the claim as prayed in the statement of claim. At the hearing, Counsel began by addressing the legal threshold applicable to a motion of this nature. He submitted that the Court’s jurisdiction to determine a matter on a point of law without full trial is engaged where all the necessary and material facts relating to the subject matter have either been proved or admitted, with the result that no genuine dispute remains as to the relevant facts. In support of that proposition, Counsel referred the Court to several authorities, placing particular reliance on Charles Nsaliwa v Malawi Communications Regulatory Authority, Civil Appeal No. 13 of 2015. His submission, drawn from those cases, was that a matter is fit for disposal on a point of law where the dispute is truly legal in character and not merely presented as factual in order to resist early determination. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 2 A recurring theme in Counsel’s submissions was that the Court must look to material facts, and not to issues which a party merely seeks to multiply in order to create the appearance of dispute. He argued that what matters is not whether a respondent has said many things in its defence or affidavits, but whether those things amount to a real and relevant factual controversy on the issues that actually fall for determination. On his argument, the Respondent had not shown any such controversy. Counsel then turned to the factual record and submitted that, if one examined the pleadings and the Respondent’s affidavits, there was no genuine dispute as to the sequence of events. He submitted that the Respondent’s own deponent, Yanjanani Kandoje, had in the affidavit material confirmed that the Commissioner General approved the recruitment of fifteen drivers, that the Applicants applied for those positions, attended interviews, were successful, and were thereafter offered employment. He further submitted that the same deponent confirmed that whilst the Applicants were still on probation, the Respondent terminated their employment, and that shortly thereafter the Respondent advertised for the same positions again. In Counsel’s submission, these were the central facts upon which the case rests and they were not denied in any meaningful sense. The significance of that, he argued, was that the factual background was already fixed and the Court was therefore not being invited to resolve conflicting evidence but only to determine the legal consequences that flow from those facts. From that starting point, Counsel contended that the issues raised by the Respondent are matters of law rather than fact. He referred specifically to paragraph 3(j) of the Respondent’s defence, which he described as containing the heart of the Respondent’s case. He submitted that the defence there advances three propositions: first, that under the Conditions of Service the Respondent could terminate probationary employment by giving seven days’ notice; second, that the Applicants, being probationers, were not entitled to be heard; and third, that reinstatement is not an attainable or automatic remedy in the circumstances. In Counsel’s submission, each of those propositions raises a legal question. He therefore argued that the Respondent had not pointed to any factual issue that required trial, but had instead raised interpretive and legal arguments which this Court is competent to determine at this stage. The Applicants’ case also took issue with the Respondent’s repeated reliance on its Conditions of Service. Counsel submitted that the Respondent had invoked those Conditions across several affidavits, both in the injunction-related proceedings and in opposition to the present motion, yet had never exhibited them. In his submission, this omission was not trivial. He argued that where a party seeks to rely on a document as the foundation of its defence, fairness and ordinary evidentiary principle require that the document be placed before the Court. He submitted that it was striking that despite repeated reference to provisions said to justify termination on notice and to regulate appeal rights, the Conditions themselves had not been annexed. Counsel suggested that the Court was therefore entitled to treat the Respondent’s assertions with caution and not to accept that the mere allegation of a contractual provision amounted to evidence of its existence or content. Closely connected to that argument was the Applicants’ submission that, even assuming that the Conditions of Service contain the provisions alleged by the Respondent, such provisions could not override the statute. Counsel argued that the Respondent was, in effect, relying on its internal conditions to justify a course of action which the Employment Act does not permit. In support of that proposition, Counsel referred the Court to several authorities, placing particular reliance on Mary Mbwana v Blantyre Sports Club , Civil Cause No. 1430 of 2009. The submission drawn from those cases was that parties cannot contract out of statutory protections and that an internal term inconsistent with statutory or constitutional guarantees Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 3 cannot be enforced by the Court. On that footing, the Applicants reduced the Respondent’s Conditions of Service argument to a further question of law, namely whether internal terms can lawfully authorise what the statute forbids. The Applicants’ submissions also addressed directly the question whether probationary employment may lawfully be terminated without valid reason and without affording the employee a hearing. Counsel argued that section 26(2) of the Employment Act deals only with notice and does not displace the broader requirements of fairness in termination. To support that proposition, he referred the Court to Linna Sheha v Malawi Revenue Authority, Matter No. 113 of 2002 , a case involving the same Respondent, where, according to Counsel, this Court had already made clear that probationary employees are not excluded from the general protections against unfair termination and that section 26(2) concerns the issue of notice rather than the existence of a valid reason or the requirement of procedural fairness. Counsel submitted that the Respondent was now advancing, in substance, the very same argument which had been rejected in that earlier case. He further referred to ILD Diamonds Namibia (Pty) Limited v Pilatus Thobias, Case No. LCA 34 of 2008 and Lovemore Chisale v University of Malawi (College of Medicine), Matter No. 516 of 2018 to support the proposition that probation does not place the employee outside the law’s protection against arbitrary termination. Another aspect of the Applicants’ case concerned the Respondent’s suggestion that the Applicants ought first to have pursued an appeal to the Commissioner General. Counsel challenged both the evidentiary and legal foundations of that submission. On the evidentiary side, he repeated that no Conditions of Service had been exhibited to establish the scope, procedure, or even existence of the alleged appeal right. On the practical side, he submitted that an appeal presupposes that there is a decision with an intelligible basis capable of challenge. Here, he argued, the Applicants were simply terminated without being given any reason. In those circumstances, he asked rhetorically what exactly they were supposed to appeal against. He also submitted that the existence of an internal appeal mechanism does not, in any event, bar an employee from approaching this Court to challenge an unfair dismissal, particularly where no statutory provision requires exhaustion of that process as a condition precedent. The Applicants further addressed the question of remedy, especially reinstatement. Counsel submitted that the facts as admitted by the Respondent itself show that the need for drivers did not disappear after the Applicants’ termination. Rather, the Respondent re-advertised the positions shortly thereafter. In his submission, that fact is highly material because it shows that the services previously provided by the Applicants were still required. On that basis, he argued that this is a proper case for reinstatement. At the same time, Counsel accepted that reinstatement has a discretionary aspect. He therefore submitted in the alternative that if the Court were not minded to order reinstatement, it should grant compensation, and further that where reinstatement is refused or not complied with the law provides for additional relief. The Applicants’ position, therefore, was not that the Court was confined to one remedy, but that the entitlement to relief on liability could and should be determined now. Counsel also resisted the Respondent’s attempt to widen the scope of factual dispute by focusing on notice. In reply, he submitted that the Applicants’ case, as framed in the statement of claim, was not that the dismissal was unfair because notice was not given. Rather, the pleaded unfairness lay in termination without valid reason and without hearing, together with the unfair labour practice said to arise from the transfers followed by dismissal and the later re-advertisement of the positions. His point was that the Respondent could not manufacture a triable issue simply by elevating a fact not relied upon by the Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 4 Applicants as a ground of unfairness into the central controversy of the case. The Court, he submitted, should look at the material facts as they arise from the Applicants’ pleaded case, not at disputes which the Respondent itself seeks to enlarge beyond the true issues. In advancing that proposition, Counsel also relied on the reasoning in The Registered Trustees of Seventh Day Adventist Church v James Kidney, Mrs Kidney and Persons Unknown, Civil Cause No. 2483 of 2008, where the Court cautioned against treating every issue raised by a defendant as sufficient to defeat summary disposition and emphasised that only substantial disputes of genuine complexity should send a matter to trial. He further referred to the House of Lords decision in Ashmore v Corporation of Lloyd’s [1992] 2 All ER 486, which, as cited in the Applicants’ skeleton arguments, was used to support the broader proposition that parties ought to assist the Court by simplifying and concentrating issues rather than multiplying arguments in the hope that one might suffice to defeat early determination. He submitted that the Respondent’s approach in the present matter fell into the very pattern that those authorities discourage. The Applicants’ case, taken at its highest, is therefore a tightly framed one. It is that the recruitment, employment, termination and re-advertisement of the positions are all admitted. The Respondent’s defence, in the Applicants’ view, does not create real factual controversy but rests on legal contentions about probation, notice, hearing, appeal, and remedy. For that reason, the Applicants say the matter is ripe for final determination on a point of law. They therefore urge the Court to proceed without trial and to grant the relief sought in the statement of claim, whether by way of reinstatement or such other final relief as the Court considers appropriate on the law and the admitted facts. The Respondent’s Case in Opposition to the Motion The Respondent’s opposition to the motion is set out in the affidavit sworn by Yanjanani Kandoje in opposition to the motion to dispose of the matter on a point of law, in the notice of preliminary objection and supporting affidavit sworn by James Bay Kambumwa, in the Respondent’s skeleton arguments, and in the oral submissions made on its behalf at the hearing. Read as a whole, the Respondent’s position is that this is not a proper case for disposal on a point of law because, first, there are material disputes requiring trial and, second, the Applicants have sought to move the Court to final determination while earlier interlocutory processes remain pending before it. In her affidavit in opposition, Yanjanani Kandoje identifies herself as the Human Resources Business Partner in the employment of the Respondent. She begins by setting out what the Respondent regards as the contractual and regulatory framework governing the relationship between the parties. She states that the Applicants entered into contracts of employment as drivers with the Respondent on 12 th September 2025 and that those contracts were terminated on 15th December 2025. She further states that the termination was effected with notice. In the same affidavit, she places emphasis on the Respondent’s Conditions of Service and the internal procedures said to govern the employment relationship. She deposes that, under those Conditions of Service, a probationary contract may be terminated before expiry of the probationary period, that an employee who has been dismissed has a right of appeal to the Commissioner General under the disciplinary and grievance procedures, that the Respondent has the right to transfer employees between working stations under its transfer and rotation policy, and that it also retains the right to conduct interviews for prospective candidates under its recruitment policy. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 5 The affidavit then goes on to state what the deponent understands to be the general legal position. She asserts that the law does not permit termination without valid reason and that ordinarily an employee ought to be afforded an opportunity to be heard on matters touching capacity, conduct or operational requirements, unless the employer cannot reasonably provide such an opportunity. But she does not present that as disposing of the matter. Rather, the Respondent’s case, as it emerges from the affidavit as a whole, is that the present dispute must still be examined in the light of the Applicants’ probationary status, the notice that was allegedly given, and the contractual framework under which they were engaged. The deponent then turns to the procedural developments in this case. She confirms that the Applicants filed IRC Form 1 on 20 January 2026 and that, in that claim, they sought reinstatement and compensation for unfair labour practices. She also confirms that, on the same date, the Applicants obtained an injunction which, in effect, restrained the Respondent from enforcing the termination, from transferring the Applicants and from conducting interviews for recruitment of new drivers. She exhibits the statement of claim and the injunction order. She further deposes that on 22 January 2026 the Respondent filed IRC Form 2 in reply and served it on the Applicants on 29 January 2026. In that pleading, she states, the Respondent denied the allegations made by the Applicants and specifically pleaded that the probationary contracts had been terminated with notice, that the Applicants did not appeal against the termination before coming to Court, and that they could not have been automatically reinstated merely because they had filed proceedings. She exhibits the defence as part of the Respondent’s case. The affidavit continues by tracing what happened after the injunction was granted. The deponent states that on 22 January 2026 the Respondent also brought motions seeking stay or suspension of the injunction and the setting aside of that order on the basis that it had been irregularly obtained. She further states that the Court directed that the stay application be heard on 29 January 2026, and that following that hearing the Court declined to grant stay and instead directed that the pending motions of both parties should proceed together and be determined omnibus on 6 February 2026. She exhibits the ruling dated 2 February 2026. She then states that on 6 February 2026 the matter was adjourned because counsel appearing for both parties did not have valid practising licences, and that the Court advised counsel to regularise that position and thereafter obtain a fresh hearing date for the pending motions. She adds that on 12 February 2026 the Respondent filed a notice of adjournment in relation to the hearing of its motion to set aside the injunction, and says that, up to the time of swearing the affidavit, that motion had not yet been given a new date. It is at that point that the Respondent frames its core complaint against the present motion. Ms Kandoje deposes that, to the Respondent’s surprise, it was thereafter served with the Applicants’ motion to determine the matter on a point of law. Her concern, which is echoed more expressly in the affidavit of Mr Kambumwa in support of the preliminary objection, is that the Applicants had now moved for final disposal of the matter when there were already pending interlocutory motions before the Court that had not yet been heard because of adjournment. The Respondent’s complaint is not merely that the Applicants have chosen an inconvenient procedure. It is that the Applicants are, in the Respondent’s view, attempting to bypass the order in which the matter was supposed to proceed following the earlier ruling of the Court. In paragraph 12 of the affidavit, the deponent says the Respondent believes that the chronology and order of events should have followed the Court’s ruling of 2 February 2026 and the directions given on 6 February 2026. In the next paragraphs she states that the proper order would have been first to hear the pending motions, determine them omnibus, and then leave the parties to decide how to proceed depending on the result. She says that the present state of affairs creates uncertainty because the Respondent does not know what became of the Court’s earlier directions and the pending notice of adjournment. She describes the Applicants’ Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 6 motion as an attempt to “short-circuit the procedure” and says the Court ought to be vigilant. On that basis, she prays that the motion to determine the matter on a point of law should be stayed or set aside pending the hearing of the earlier motions. That procedural strand was reinforced in the notice of preliminary objection and in the affidavit sworn by James Bay Kambumwa. There, the Respondent puts the matter more directly. It states that there are pending motions before the Court, namely the motion to set aside the injunction and the motion concerning continuation of the injunction, and that the interests of justice require those previously filed motions to be heard first before the Applicants’ present motion is entertained. In that way, the Respondent seeks to present the matter not only as one involving disputed questions of law and fact, but also as one in which orderly case management and procedural discipline require the Court to refuse to proceed with the motion in its present form. At the hearing, counsel for the Respondent adopted the affidavit of Yanjanani Kandoje and the filed skeleton arguments and indicated that he would rely on them fully. His oral argument then developed the Respondent’s position in more pointed terms. He submitted that the principles applicable to a motion of this kind are analogous to those governing summary judgment or judgment on admission, and that before such a motion can succeed the Court must be satisfied that the defendant has no defence, that no issue has been raised requiring investigation at trial, that there is no reason warranting trial, and that any admissions relied on are unequivocal. In support of that framework, the Respondent’s skeleton arguments relied on Standard Bank of Malawi v Maone Oil Mills Limited & 5 Others, MSCA Civil Appeal No. 94 of 2018 [2024] MWSC 6, where the Supreme Court declined summary judgment on the footing that there were questions of fact and law incapable of resolution without trial. The skeleton arguments also drew from Standard Bank Ltd v Tourism Investments Ltd & Euro Industries Ltd, MSCA Civil Appeal No. 17 of 2018 and Illovo Sugar Plc v Ecobank Malawi Ltd, MSCA Civil Appeal No. 4 of 2020 , as authorities emphasising that summary determination is only proper where there is plainly no defence and no issue fit for trial. That framework became the lens through which the Respondent asked the Court to examine the Applicants’ motion. Counsel then submitted that this standard had not been met. He argued that the Respondent had indeed raised triable issues in IRC Form 2 and in the affidavit material. One such issue, in his submission, was that the Applicants were on probation and that their contracts were terminated with notice in accordance with section 26(2) of the Employment Act and the Respondent’s Conditions of Service. Counsel stressed that the Applicants were not confirmed employees but probationers, and he maintained that this feature of the case was not incidental. Rather, it lay at the heart of the Respondent’s defence. In his argument, the legal consequences of probationary status, especially when read together with section 26(2), were not matters that could simply be swept aside as already settled in the Applicants’ favour. Counsel also submitted that section 57 of the Employment Act, which the Applicants relied upon in relation to the right to be heard, was not absolute in the way the Applicants suggested. He argued that the section itself envisages circumstances in which the employer may not be expected to provide an opportunity to be heard. Although the Respondent did not in oral argument fully unpack the factual circumstances said to bring the case within that exception, the point of the submission was to show that the question whether the Applicants were entitled to a hearing was not, in the Respondent’s view, an abstract issue of pure law. It was, rather, an issue requiring fuller interrogation in the context of the nature of the employment, the probationary setting, and the facts surrounding termination. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 7 A further point made by counsel was that the Applicants were presenting the matter as though there had been admissions sufficient to entitle them to judgment, when in fact the Respondent had consistently denied liability. Counsel submitted that IRC Form 2 expressly denied that the termination was unfair and expressly denied that reinstatement followed automatically. He also submitted that the Respondent had consistently challenged the ex parte injunction on the basis that it effectively granted reinstatement without notice and before trial. He therefore argued that there was no unequivocal admission upon which the Court could safely proceed to final judgment. Counsel further addressed the issue of remedy. He argued that reinstatement is a final remedy provided for under section 63 of the Employment Act and that it falls for consideration after trial and after a finding of unfair dismissal. In his submission, the Applicants were, in effect, attempting to obtain through a point of law motion what they had already sought through the injunction, namely restoration to employment, without the Court having heard the matter fully. He submitted that the Respondent had throughout objected to that approach and had made that objection clear in the stay proceedings, in the application to set aside the injunction, and in its defence. The Respondent’s skeleton arguments reinforced that position by reference to sections 63(1) and 63(6) of the Employment Act, contending that the structure of section 63 shows that reinstatement and any special award for non-compliance arise only after adjudication of liability. Another aspect of the Respondent’s oral argument was its insistence that some of the matters relied on by the Applicants were in truth contested. Counsel said, for example, that the Respondent’s position was that the Applicants were terminated with notice, whereas the Applicants were treating the question of termination as though only the absence of reason and hearing mattered. In the Respondent’s formulation, that itself demonstrated that there were disputes requiring investigation. Counsel therefore rejected the Applicants’ attempt to define the dispute narrowly and submitted that the Court was being invited to ignore parts of the Respondent’s defence in order to create an artificial picture of factual agreement. Although less developed than the affidavit material, counsel also maintained the Respondent’s position that the Applicants had an internal avenue of appeal which they did not utilise. This was not put merely as a procedural bar. Rather, it was used to reinforce the Respondent’s broader case that the matter had not reached a stage at which final judicial determination without trial was appropriate. The Respondent’s skeleton arguments also sought to anchor its position in the contractual framework governing the employment relationship. Reliance was placed on clause 8(2) of the Respondent’s Conditions of Service and section 26(2) of the Employment Act to contend that the Applicants’ probationary contracts were terminable with notice, and that what occurred was, from the Respondent’s perspective, consistent with those provisions. Further, the skeleton arguments emphasised that the Applicants had alternative statutory remedies under section 63 of the Employment Act in the event that unfair dismissal were ultimately established after trial. The Respondent’s point here was that the existence of those remedies itself militated against the Applicants’ insistence on immediate final determination, particularly where the Respondent says it has a defence on the merits. All in all, the essence of the Respondent’s case in opposition is twofold. First, it says that this matter is not fit for disposal on a point of law because the Applicants have not shown that all material facts are admitted or beyond controversy. On the Respondent’s case, probationary status, the giving of notice, the relevance of the Conditions of Service, the availability of internal appeal, and the entitlement to reinstatement all remain live matters requiring fuller adjudication. Second, the Respondent says that, even apart from the merits, the Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 8 motion is procedurally out of sequence because it has been brought while earlier interlocutory motions, particularly those concerning the injunction, remain pending and unheard due to adjournment. It is for those reasons that the Respondent asks the Court to decline the motion and allow the dispute to proceed through the ordinary processes of the Court. THE APPLICABLE LAW AND LEGAL PRINCIPLES The Industrial Relations Court has jurisdiction, under section 67 of the Labour Relations Act and Rule 5A(1)(c) of the Industrial Relations Court (Procedure) Rules, to determine a matter on a point of law without proceeding to a full trial. That jurisdiction is a limited one in its proper exercise. It exists to enable the Court, in an appropriate case, to bring litigation to an end without the delay and expense of trial where the issues for determination are truly legal and where the facts necessary for their resolution are already established, admitted, or otherwise beyond genuine dispute. The controlling consideration is therefore whether there remains any real controversy as to material facts. As was made clear in Charles Nsaliwa v Malawi Communications Regulatory Authority, Civil Appeal No. 13 of 2015, and reaffirmed in Council of the University of Malawi v Benjamin Chirwa & Others, Civil Appeal No. 12 of 2016 , the Court may only proceed in this way where the relevant facts are not in dispute and where determination of the legal point will dispose of the matter. It is not enough that a legal question can be framed. The question must be one whose determination will substantially and finally resolve the dispute, or at least the issue brought before the Court for that purpose. Nor does the mere raising of objections, denials, or argumentative assertions automatically make a case unfit for early determination. The Court must distinguish between real disputes and manufactured ones. In The Registered Trustees of Seventh Day Adventist Church v James Kidney, Mrs Kidney and Persons Unknown, Civil Cause No. 2483 of 2008, later approved in Enock Chibambo v Agricultural Development and Marketing Corporation, Civil Cause No. 57 of 2010 , the Court warned against treating every issue raised as sufficient to defeat disposal on a point of law. The Court must look to substance, not form, and ask whether there is a genuine issue requiring investigation. That same caution is reflected in Ashmore v Corporation of Lloyd’s [1992] 2 All ER 486 , where the need to simplify and concentrate issues was emphasised. At the same time, the Court must be careful not to trespass into the province of a trial. Where resolution of the issue depends on contested primary facts, the credibility of witnesses, disputed documents, or competing factual inferences, the matter is not fit for disposal on a point of law. In that respect, the caution seen in cases such as Standard Bank of Malawi v Maone Oil Mills Limited & 5 Others, MSCA Civil Appeal No. 94 of 2018 [2024] MWSC 6 is well taken. The Court must therefore undertake a disciplined inquiry: it must identify the legal point with precision, examine the pleadings and material before it to determine whether the necessary facts are common cause or admitted, and consider whether determination of that point will finally and fairly dispose of the dispute. Where those conditions are met, the matter may properly be determined without trial. Where they are not, the matter must proceed in the ordinary way. DETERMINATION Having set out the respective positions of the parties and the applicable legal framework, the Court now turns to consider whether the present matter is one that may properly be determined on a point of law. The starting point must be to identify, with precision, the question which the Applicants invite the Court to Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 9 determine at this stage. That question cannot be approached in abstract terms. It must be understood in light of the pleadings, the affidavits filed by both parties, and the submissions made at the hearing. It is only once the true scope of the issue has been settled that the Court can meaningfully assess whether it is capable of resolution without the benefit of a full trial. The inquiry that follows is therefore a structured one. The Court must first examine the pleadings and the affidavit material to determine whether the facts necessary for the resolution of the identified issue are common cause, admitted, or otherwise beyond genuine dispute. In doing so, the Court must be careful to distinguish between real disputes and those that are merely asserted. At the same time, it must guard against the opposite risk of treating contested matters as settled simply because one party invites the Court to do so. If, and only if, the Court is satisfied that the material facts are not in dispute, it must then consider whether the issue raised is truly one of law and whether its determination would dispose of the matter, or at least the relevant part of it, finally. That second stage of the inquiry is no less necessary. A matter is not suitable for disposal on a point of law merely because a legal question arises. The question must be dispositive in nature. The Court must also bear in mind the procedural posture of the matter. Where there are pending processes, or where the manner in which the case has unfolded raises concerns as to the orderly conduct of the proceedings, those considerations may affect whether it is appropriate, in the interests of justice, to determine the matter at this stage. It is against that framework that the Court now turns to examine the issues raised by the present motion. Whether the Present Motion Was Properly Brought for Determination at This Stage The court begins with the Respondent’s procedural objection. In substance, the Respondent’s complaint is that the present motion came before the court while earlier interlocutory motions, particularly those concerning the injunction, remained pending and unheard. That position was advanced in the affidavit of Yanjanani Kandoje, reinforced in the affidavit of James Bay Kambumwa, and repeated in oral argument. The Respondent’s case was that, after the ruling on stay, the proper course was for the pending motions to be heard together, and that the Applicants’ present application sought to bypass that sequence and, in the Respondent’s own phrase, to “short-circuit the procedure.” The Respondent therefore urged the court not to entertain the motion at this stage. The court does not treat that objection lightly. A court must retain control over its own process. Where directions have previously been given as to the manner in which pending applications are to proceed, one party cannot ordinarily disregard that history and invite the court to proceed as though nothing had gone before. The Respondent was therefore entitled to raise the point. Its complaint was not frivolous. It was grounded in the fact that, after stay was refused, this court directed that the then pending motions be heard together and determined omnibus on 6 th February 2026. It was also grounded in the further fact that the matter was then adjourned, and no fresh omnibus date had yet been taken when the present motion was filed. Even so, the objection cannot be upheld in the broad form in which it was presented. The earlier ruling did not bar the filing or hearing of any other competent application. What that ruling did was to decline stay, confirm that there was on the court record a substantive motion to set aside the injunction, and direct that the motions then pending be heard together on the date fixed. Once that hearing did not proceed, because Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 10 counsel then appearing were without valid practising licences, the matter remained pending before the court. But the adjournment did not convert the earlier case management direction into a procedural bar against any further application that might competently be brought under the governing statute and rules. Put shortly, the court cannot elevate a direction as to sequencing into a rule of foreclosure unless the order itself plainly had that effect. Here, it did not. There is, however, a more fundamental answer to the Respondent’s objection. These proceedings were not commenced for the purpose of obtaining rulings on interlocutory applications. They were commenced for the determination of the substantive dispute pleaded in IRC Form 1. That is the controversy the court is ultimately required to resolve. The injunction and the motions flowing from it are incidental to that larger dispute. They regulate the parties’ interim position. They may preserve the subject matter, suspend the effect of an order, or alter the temporary balance between the parties. But whether those interlocutory applications succeed or fail, they do not by themselves determine whether the termination complained of in IRC Form 1 was fair or unfair, nor do they finally determine the rights and remedies that may arise from that dispute. That distinction is decisive. The present motion does not seek temporary regulation of the parties’ position pending trial. It seeks final disposal of the matter on a point of law. The Applicants made that point expressly in reply. Their submission was that a motion of this nature is brought precisely to avoid a trial where no triable factual issue exists, and that the court does not send a matter to trial merely in order to debate legal interpretation. In that respect, the present application stands on a different footing from the pending injunction-related motions. Those motions concern interim arrangements. This one seeks final adjudication of the substantive dispute. Once that is appreciated, the Respondent’s argument on sequence becomes less persuasive. Even if one assumes that the present motion overtook earlier interlocutory motions, that does not, without more, make it procedurally improper. The real question is not whether it came later or earlier in the chronology of filings. The real question is whether hearing those pending interlocutory motions first would move the matter any closer to final resolution of the dispute in IRC Form 1. In the court’s view, the answer is plainly no. A ruling on whether the injunction should remain, be lifted, or be set aside would settle only the temporary position of the parties. It would not resolve the claim in IRC Form 1. By contrast, if the present motion is competently brought and if it satisfies the threshold for determination on a point of law, its disposal would go directly to the substance of the parties’ dispute and may bring the matter to finality. That is also how the matter must be viewed in light of the court’s duty to secure the just and expeditious disposal of proceedings. Expedition is not achieved merely by hearing applications in the order in which they happen to accumulate on the file. Nor is case management an exercise in chronology for its own sake. The court must be guided by substance. If an application is capable, in law, of disposing of the substantive dispute, it would be difficult to justify postponing it in favour of interlocutory contests that, whatever their immediate significance, do not finally determine the matter. To insist on exhausting every interlocutory step before entertaining an application directed at final resolution may, in some cases, serve only to prolong the proceedings and to draw the court away from the very dispute it was asked to decide. This is not to say that pending interlocutory motions are irrelevant. They remain part of the procedural background. They may illuminate the true scope of the dispute. They may also show whether factual controversy still survives. But they do not enjoy priority merely because they were filed earlier. Their Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 11 significance lies in whether they assist the court in moving the case toward final resolution. Where they do not, the court should be slow to permit them to stand in the way of a motion which, if well founded, may finally determine the substantive rights of the parties. For those reasons, the court is unable to accept the Respondent’s submission that the present motion was, for that reason alone, procedurally incompetent or incapable of being entertained. The existence of pending motions concerning the injunction did not deprive the Applicants of the right to invoke section 67 of the Labour Relations Act and Rule 5A(1)(c) of the Industrial Relations Court (Procedure) Rules, if they were otherwise entitled to do so. Nor did the earlier ruling on stay settle the order in which every future application in the matter had to be heard, regardless of its nature. The court retains control over its own process and must decide each application according to its true character and its utility to the just, orderly, and expeditious disposal of the proceedings. That said, the Respondent’s concern does not disappear altogether. While the pendency of the earlier motions does not render the present application incompetent, it does form part of the procedural setting in which the court must assess the motion. A court should be slow to permit a point-of-law procedure to become a device by which unresolved factual difficulty is merely avoided. That concern, however, is better addressed not by shutting the door at the threshold, but by subjecting the motion to strict scrutiny under the settled test. In other words, the Respondent’s complaint about sequence may bear on the later question whether this matter is truly fit for disposal on a point of law, but it does not, by itself, defeat the motion before that inquiry even begins. The court therefore answers the first issue in this way. The present motion was properly brought for determination at this stage. The earlier interlocutory history of the matter, and the pendency of the injunction-related motions, do not render the application procedurally barred. They remain relevant background, and they may yet bear on the wisdom of disposing of the matter summarily, but they do not deprive the court of the authority to entertain a motion directed at the final determination of the substantive dispute pleaded in IRC Form 1. The court will therefore proceed to the next question, namely whether the matter satisfies the threshold for determination on a point of law. Whether the Matter Satisfies the Threshold for Determination on a Point of Law The court is satisfied that this matter meets the threshold for determination on a point of law. That conclusion is reached not because the Respondent has offered no answer at all, but because the answer it offers does not, on close examination, raise a genuine dispute on the material facts. The facts necessary for deciding this motion are, in the court’s view, either admitted or not seriously contested. What the Respondent has done is to take those facts and seek to justify its conduct by reference to probation and notice. That may amount to a defence in law. It does not, without more, create a triable dispute of fact. The court must keep in view the claim as the Applicants themselves framed it in IRC Form 1. Their complaint is a narrow one. They say their employment was terminated without valid reason and without a hearing. They further complain that the surrounding conduct of the Respondent amounted to unfair labour practice. That is the dispute brought before the court. It is not a complaint about lack of notice. It is not a complaint about the wording of the letters alone. It is, at its centre, a complaint about substantive and procedural unfairness. Once the case is viewed in that way, the significance of the Respondent’s reliance on notice becomes much reduced. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 12 To be fair to the Respondent, it has not hidden the basis of its position. In IRC Form 2, in the affidavits filed on its behalf, and in the oral submissions made by counsel, the Respondent has consistently advanced the same line. The Applicants were on probation. They were terminated with notice. The Respondent’s Conditions of Service, so it says, permitted that course. The Applicants, being probationers, were not entitled to a hearing. Those points were pressed more than once and with some firmness. But they do not amount to a competing account of what happened. They amount to a justification for what happened. That distinction matters. A factual dispute concerns whether the event occurred, how it occurred, or in what circumstances. A legal dispute concerns what the law makes of the event once the surrounding facts are known. In this case, the controversy falls in the latter category. Probation, for instance, is not disputed as fact. The Applicants do not deny that they were probationary employees. The Respondent does not say otherwise. It is common ground. The same may largely be said of the termination itself. So too with the subsequent advertisement of the same positions. These matters form the factual setting against which the dispute must be assessed. The real difference between the parties is whether probationary status, once admitted, removed the obligation to provide a valid reason and to afford the Applicants a hearing. That is not a matter that will be clarified by witness credibility or by oral testimony. It is a matter of legal consequence. The issue of notice stands on much the same footing. The Respondent has sought to place heavy reliance on it, both in pleading and in argument. Yet notice does not appear among the pleaded particulars of unfairness in IRC Form 1. The Applicants’ case is not that they were dismissed without notice. It is that they were dismissed without valid reason and without hearing. In those circumstances, the court is bound to ask whether notice, even if accepted entirely in the Respondent’s favour, would answer the case the Applicants have actually brought. In the court’s judgment, it would not. It may explain one feature of the termination. It does not resolve the pleaded complaints of lack of reason and lack of hearing. For that reason, notice, as raised here, does not generate a material factual dispute requiring trial. What remains, then, is the legal question whether the matters relied on by the Respondent, namely probation, notice, and the asserted effect of its Conditions of Service, relieve it of the obligation to act fairly. That is plainly a question of law. It turns on the interpretation and application of the Employment Act, especially the relationship between section 26(2), which deals with probation and notice, and section 57, which reflects the broader requirements of fairness in termination. It also raises the further question whether internal conditions of service may lawfully justify a course of action that the statute does not. Those are questions the court can answer on the material already before it. They do not depend on resolving contested primary facts. Nor do they call for assessment of witness credibility. That conclusion sits comfortably with the authorities cited by both sides. In Charles Nsaliwa v Malawi Communications Regulatory Authority, Civil Appeal No. 13 of 2015, the court made clear that the relevant test is whether all necessary and material facts have been proved or admitted, so that no dispute remains as to the facts relevant to the question to be determined. In Council of the University of Malawi v Benjamin Chirwa & Others, Civil Appeal No. 12 of 2016, the same approach was affirmed. The court there stressed that the jurisdiction is properly exercised where the remaining issue is one of legal consequence and its determination will dispose of the matter. The present case fits that description. The material facts are substantially common cause. The dispute is over their legal effect. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 13 The caution expressed in The Registered Trustees of Seventh Day Adventist Church v James Kidney, Mrs Kidney and Persons Unknown, Civil Cause No. 2483 of 2008 is also worth repeating. The court should not permit a party to defeat early determination by raising issues which are not, in substance, factual controversies. That caution is particularly apt here. The Respondent has certainly resisted the motion. It has done so with energy. Yet resistance alone is not enough. The court must ask whether what is raised is truly factual and truly material. In the court’s view, it is not. The Respondent relied on authorities such as Standard Bank of Malawi v Maone Oil Mills Limited & 5 Others, MSCA Civil Appeal No. 94 of 2018 [2024] MWSC 6 to urge caution. The court accepts that caution. Final determination without trial is not to be undertaken lightly. Still, those cases do not assist where the dispute is, in truth, legal and not factual. They stand against summary disposal where genuine issues require investigation. They do not require the court to send a matter to trial simply because a defendant has advanced a legal answer and insists on the formality of oral evidence. In the end, the position is straightforward. The material facts necessary for determination of this motion are not genuinely in dispute. What remains is a legal controversy as to whether, on those facts, the Respondent was entitled to terminate the Applicants’ employment without valid reason and without a hearing, merely because they were probationers and had been given notice. That controversy is capable of determination now, on the record already before the court. The court therefore finds that the matter satisfies the threshold for determination on a point of law. It further finds that the issues raised by the Applicants are truly legal in character and can properly be determined without oral evidence. The second issue is answered in the affirmative. Whether the Respondent Accorded the Applicants Substantive and Procedural Fairness This issue lies at the centre of the dispute. When the pleadings, affidavits, and submissions are read together, the Respondent’s defence reduces to a narrow foundation. The Applicants’ case, as framed in IRC Form 1, is that their employment was terminated without valid reason and without a hearing, and that the surrounding conduct amounted to unfair labour practice. The Respondent’s answer, consistently advanced, is that the Applicants were probationary employees, that their contracts were terminated with notice, that its Conditions of Service permitted that course, and that, at one stage, operational considerations justified the termination. The question is whether those matters, taken either individually or collectively, relieve the Respondent of the obligation to terminate fairly. Probation The court begins with probation because that is the main plank of the Respondent’s defence. It is not disputed that the Applicants were employed on probation. That fact is accepted on both sides. What divides the parties is not whether the Applicants were probationers, but what the law permits an employer to do with a probationary employee. The Respondent’s position, as disclosed in its defence and repeated in its submissions, is that probation carried with it a lower level of protection and that, for that reason, the Respondent was entitled to terminate the Applicants’ employment without the ordinary safeguards that would apply to a confirmed employee. That is, in substance, the proposition the court is being asked to accept. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 14 The court is unable to accept it. Probation is not a legal vacuum. It is a recognised stage in the employment relationship during which the employer is afforded an opportunity to assess the employee’s suitability for the post. That much is ordinary. But the fact that employment is still under assessment does not mean that the employee falls outside the protection of the law. A probationary employee remains an employee. The contract may be less secure in one sense, but it is not lawless. The Employment Act does not create two separate universes, one for confirmed employees and another for probationers in which fairness ceases to matter. That is why section 26(2) must be read carefully and not more broadly than its language allows. The subsection addresses notice. It says that during probation a contract of employment may be terminated without notice. The court reads that provision for what it says, and not for what one party would like it to say. It does not say that a probationary employee may be dismissed without valid reason. It does not say that such an employee may be dismissed without regard to fairness. Nor does it say that the safeguards elsewhere provided by the statute are suspended until confirmation. If Parliament intended to carve out such a broad exemption, one would expect clear words. They are not there. That reading is consistent with the general structure of employment legislation. The statute does not proceed on the footing that fairness begins only after confirmation. It proceeds on the footing that termination of employment is a serious matter and that the employer must act within legal bounds. Probation may affect the degree of latitude available to an employer in assessment. It does not confer a free hand. To hold otherwise would be to convert a probation clause into a standing permission to disengage employees for no reason at all, provided only that the employer acts before confirmation. The court cannot attribute such an intention to the statute without unmistakable language. The authorities relied upon by the Applicants support that view. In Linna Sheha v Malawi Revenue Authority, Matter No. 113 of 2002, the court recognised that section 26(2) is concerned with notice and does not displace the broader requirement of fairness in termination. That decision is particularly instructive because the Respondent in that matter was the same Respondent before this court now, and the argument appears to have been much the same. The reasoning remains persuasive. It draws a sensible and legally coherent distinction between the easing of notice requirements during probation and the complete removal of substantive and procedural fairness. The former may be accepted. The latter cannot. The same direction is seen in ILD Diamonds Namibia (Pty) Limited v Pilatus Thobias, Case No. LCA 34 of 2008, where the court rejected the idea that probation permits an employer to dismiss at whim, and in Lovemore Chisale v University of Malawi (College of Medicine), Matter No. 516 of 2018, which reflects the wider principle that statutory protection is not excluded by implication or by loose inference. Those decisions are not cited here for ornament. They serve a real purpose. They show that courts have been careful, and rightly so, not to treat probation as a device by which employers may contract themselves out of the discipline imposed by the law. There is also a practical reason why the Respondent’s approach cannot be accepted. If probation were treated as a complete answer to a claim of unfair dismissal, the scope for abuse would be obvious. An employer could recruit workers on probation, disengage them at will, and then refill the same positions, all without ever having to explain itself. The protection against arbitrary termination would then be weakest at the very moment the employee is most vulnerable. That would sit uneasily with the spirit of both the Employment Act and the Labour Relations Act. The court does not say this to speculate wildly about Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 15 hypothetical abuse. It says it because the law must be read in a way that gives effect to its protective purpose, not in a way that hollows it out. The Respondent sought to draw support from section 57 by suggesting that a hearing is not required in every case. That, in a limited sense, is correct. There may well be situations where the employer is not reasonably expected to provide an opportunity to be heard. But that is a different proposition. It requires some factual or practical basis. It does not yield a general rule that probationary employees, as a class, are not entitled to be heard. The Respondent has not identified any particular feature of this case that made it impracticable, unreasonable, or impossible to hear the Applicants. Its position is broader than that. It says probation itself did the work. The court cannot accept that approach. A statutory qualification designed for exceptional cases cannot be transformed into a blanket exclusion for all probationers. In the end, the court returns to the same point. Probation allows assessment. It may justify flexibility. It may, depending on the circumstances, permit a shorter path to termination than would be open in the case of a confirmed employee. But it does not erase the need for fairness. It does not relieve the employer of the need to show a lawful basis for terminating the relationship. And it does not, without more, dispense with the employee’s right to be treated in a manner that is both substantively and procedurally fair. The Respondent’s reliance on probation as a complete answer must therefore fail. Notice The court turns next to notice, which is the second pillar of the Respondent’s defence. The Respondent placed considerable weight on the fact that the Applicants were terminated with notice. That point was pressed in its pleadings, in affidavit, and again in oral argument. The suggestion, in substance, was that once notice was given, the termination was thereby brought within the law. The court is unable to accept that position. The first difficulty for the Respondent is that notice does not meet the case the Applicants have actually brought. In IRC Form 1, the Applicants do not allege that their dismissal was unfair because they were not given notice. Their complaint is different. They say the termination was unfair because it was without valid reason and without a hearing. Those are the pleaded grounds. That is the dispute the court is required to resolve. It follows that the Respondent cannot answer that claim by shifting attention to notice, as though compliance with one aspect of the employment relationship displaces the need to answer the complaint actually pleaded. That point is not merely technical. Pleadings exist to define the dispute between the parties. They are not ornaments. If a claimant says the dismissal was unfair because there was no hearing and no valid reason, the employer must answer those complaints. It is not enough to say, in effect, that notice was given and therefore all is well. Notice may well be relevant in another case. It is not the decisive issue in this one. Counsel for the Applicants was therefore right to submit that the Respondent was enlarging the dispute by making notice the centre of its defence when it is not the centre of the Applicants’ claim. Put differently, the Respondent cannot be permitted to create its own issue and then begin to justify its conduct by answering that issue as though it were the one before the court. The court must remain anchored to the dispute as defined by the pleadings, not as reformulated in argument. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 16 Even leaving that pleading point aside, the Respondent’s argument still fails on substance. Notice and fairness are not the same thing. A dismissal may comply with a contractual or statutory requirement as to notice and yet remain unfair if it lacks substantive justification or if it is carried out without procedural fairness. One concept speaks to the manner in which the contract is brought to an end. The other speaks to whether the employer was entitled, in law, to bring it to an end in the first place, and whether it did so in a fair way. The two should not be collapsed into one. That distinction matters here. Section 26(2) of the Employment Act, as already discussed, addresses notice during probation. It does not say that the giving of notice converts an otherwise unjustified termination into a lawful one. Nor does it say that once notice is given, the employer is relieved of the need to show valid reason or to comply with the broader requirements of fairness. To read the subsection in that way would be to attribute to the legislature an intention it did not express. The court is not at liberty to do so. The Respondent’s approach, if accepted, would produce an unsatisfactory result. It would mean that an employer could terminate employment without valid reason, and without hearing the employee, and yet defend the decision simply by pointing to the fact that notice was given. That would reduce fairness to a matter of form. The law does not, in the court’s view, permit such a narrow reading of protection. Notice may regulate one aspect of termination. It does not, standing on its own, answer whether the termination was fair. The court would add that the very way in which the Respondent relies on notice reveals the weakness in its position. Notice is being used, not as one part of a broader justification grounded in fact, but as a substitute for justification. The Respondent has not said, for example, that there was a proven concern about the Applicants’ work and that notice was then given in consequence of that concern. Nor has it pointed to some disciplinary or operational process in which notice formed only the final step. Rather, notice is presented as the answer itself. In the court’s judgment, it cannot bear that weight. There is also a practical dimension to the matter. If notice alone were enough, the requirement of valid reason would become hollow in a wide range of cases. An employer could simply terminate on notice and then say the statute had been satisfied. That would be inconsistent with the protective scheme of the Employment Act. The legislature did not place the concepts of fairness and notice in separate provisions so that one could consume the other. Each has its place. One cannot be used to erase the function of the other. For all those reasons, the court finds that the Respondent’s reliance on notice does not avail it. Notice does not answer the pleaded complaint. Nor does it satisfy the requirements of substantive and procedural fairness. It may explain the form in which the termination was communicated. It does not justify the termination in law. Conditions of Service The Respondent also relied on its Conditions of Service. In its defence, in affidavit, and again in oral submissions, it sought to draw support from those conditions for the proposition that probationary employment could be terminated in the manner adopted. The court is not persuaded by that reliance. The first difficulty is evidential. The Conditions of Service were invoked repeatedly, yet they were not placed before the court. That omission is not a small matter. Where a party seeks to justify its conduct by reference to a document, and indeed treats that document as a central part of its defence, the court is entitled Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 17 to expect that the document itself will be produced. It is not enough to refer to it in general terms and then invite the court to assume both its existence and its legal effect. Here, the Respondent repeatedly asserted that its Conditions of Service permitted termination by notice and dispensed with the need for a hearing, yet the conditions themselves were not exhibited. In those circumstances, the court is left not with evidence of the document, but with assertion about it. Assertion is not a substitute for proof. There is a second and more fundamental difficulty. Even if the Conditions of Service had been properly placed before the court, they could not avail the Respondent to the extent that they were inconsistent with the statute. Internal conditions, contractual terms, and workplace policies have their place in regulating the employment relationship. They may fill in detail. They may organise procedure. They may govern matters left open by the law. What they cannot do is displace statutory safeguards. A contract of employment is not a private charter that permits the parties to opt out of legislative protection. That principle is neither novel nor doubtful. In Mary Mbwana v Blantyre Sports Club, Civil Cause No. 1430 of 2009, the court recognised that parties cannot contract out of a statute. The same line of reasoning is reflected in Moses Malithano v Malawi University of Business and Applied Sciences, IRC Matter No. ZA 10 of 2024 and Mponda Chaula v Telekom Networks Limited, IRC Matter No. ZA 113 of 2024, where the court made it clear that contractual or institutional terms cannot be enforced where they offend statutory or constitutional protections in the field of employment. The court adopts that approach. The point may be put simply. If a Condition of Service says no more than what the statute permits, there is no difficulty. If, however, it purports to authorise what the statute forbids, or to remove what the statute protects, it cannot stand. It yields to the Act. The Respondent cannot therefore defend the present termination by saying, in effect, that its own internal rules allowed it to do what the Employment Act does not permit. That is especially so here. The Conditions of Service were relied on, not to supplement a lawful process, but to support the broader proposition that the Respondent could terminate probationary employees without valid reason and without procedural fairness. That is precisely the sort of use to which internal rules cannot be put. If accepted, it would mean that an employer could draft around the statute by formulating internal conditions more favourable to itself than the law allows. The court cannot endorse such an approach. There is also a practical concern beneath the legal one. If the court were to accept unproduced Conditions of Service as a sufficient answer to a claim of unfair dismissal, and if those conditions were then treated as overriding statutory protection, the effect would be to place the real content of employment rights in the hands of employers rather than in the statute enacted to regulate them. That would invert the proper order. The law governs the contract, not the other way round. For those reasons, the court finds that the Respondent’s reliance on its Conditions of Service does not assist it. The Conditions were not proved. More importantly, even if they had been, they could not override the requirements of the Employment Act. If they purported to authorise termination without valid reason or without fairness, they would have to yield to the statute. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 18 Operational requirements The court then turns to the Respondent’s reference to operational requirements. That explanation was at least suggested in the affidavit material as part of the basis upon which the termination was defended. If it had been properly made out, it might have carried legal significance. An employer may, in an appropriate case, terminate employment on operational grounds. But where that is the position taken, the court is entitled to expect some coherence between the explanation offered and the conduct that followed. In the present matter, that coherence is lacking. The difficulty begins with the Respondent’s own conduct after termination. It is not disputed that, shortly after the Applicants’ employment was brought to an end, the Respondent caused an advertisement to be published for drivers. That fact is not incidental. It goes directly to the question whether the Applicants’ services had genuinely become unnecessary. If the Respondent’s true position is that operational circumstances no longer supported the retention of drivers in the manner initially envisaged, then the subsequent advertisement for the same positions calls for explanation. On its face, it points in the opposite direction. It suggests that the work remained, the positions remained, and the need for drivers remained. The court does not take an inflexible view of operational life. Institutions may reassess their needs. Circumstances may shift quickly. A genuine operational reason at one point in time may, conceivably, cease to exist later. But where an employer relies on such a reason to justify termination, and then, within a short interval, moves to recruit for the same role, the court is entitled to look more closely. In such a situation, one would ordinarily expect some account of what changed in the interim. Here, none was given. The Respondent did not identify any fresh event, any altered budgetary position, any administrative reversal, or any intervening circumstance that would explain why jobs said to have become unnecessary reappeared almost immediately thereafter. That silence matters. The issue is not simply that the court finds the explanation weak. The issue is that the explanation never develops into a coherent reason at all. It remains little more than a suggestion, and one contradicted by the Respondent’s own subsequent conduct. That is not enough where the law requires a valid reason for termination. A reason cannot be both relied upon and left unexplained when the surrounding facts cast doubt upon it. There is a further feature that weakens the Respondent’s position. If, as it now seems to suggest, the operational need for drivers revived after the termination, there is no indication that the Applicants were considered for re-engagement or recall. The court does not suggest that every employer is under a strict legal duty to recall former employees whenever positions reopen. That would be too wide a proposition. Still, in a case such as this, where the employer relies on operational need to explain the termination and then returns to the market for the same labour, the absence of any attempt to reconnect the affected employees to those positions is a relevant consideration. It does not by itself prove bad faith, but it does make the operational explanation harder to sustain. The broader picture is therefore difficult for the Respondent. There is no allegation of misconduct. There is no suggestion that the Applicants lacked capacity for the work. There is no properly developed account of operational necessity that can survive scrutiny in light of the advertisement that followed. Once probation and notice are put to one side as legal justifications, nothing of substance remains that identifies why these Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 19 particular employees were terminated. The court is then left with an explanation that is not merely unpersuasive, but incomplete. That incompleteness is significant. The law does not require an employer to use formulaic language, but it does require that there be a valid reason capable of being identified and tested. Here, the Respondent’s reference to operational requirements does not meet that standard. It is not supported by its own conduct. It is not developed in any meaningful way. And it does not answer the obvious question raised by the subsequent advertisement, namely why positions allegedly no longer required had to be filled again so soon afterward. For those reasons, the court finds that the Respondent’s reliance on operational requirements does not assist it. The explanation is not borne out by the record. On the contrary, the Respondent’s own conduct after termination tends to undermine it. Far from supplying a valid reason, the asserted operational basis only throws into sharper relief the absence of any coherent reason for the Applicants’ dismissal. When the several strands of the Respondent’s case are brought together, a broader picture emerges, and it is one the court cannot ignore. Up to this point, the court has considered separately the Respondent’s reliance on probation, on notice, on its Conditions of Service, and on the asserted operational justification. It is now necessary to stand back and assess what those arguments amount to when taken as a whole. That wider view may be useful, because a position that appears arguable when looked at in isolation may reveal its true implications when the parts are placed together. Seen in that way, the Respondent’s position is, in substance, this: that where an employee is on probation, the employer may terminate without assigning a valid reason, without affording a hearing, and may justify that course by reference to notice or internal conditions, even where the surrounding conduct points in the opposite direction. Put shortly, the argument comes close to saying that probation substantially places the employee beyond the reach of the ordinary safeguards of fair termination. The court must therefore consider whether that proposition can sit comfortably with the statutory framework. The court is unable to accept that it can. The Employment Act and the Labour Relations Act do not proceed on the footing that fairness is reserved for the employee who has already secured confirmation. Their language and purpose point the other way. They are founded on the principle that termination of employment is not to be left to arbitrary discretion. The requirement of valid reason and the insistence on procedural fairness are not peripheral features of that scheme. They lie near its centre. They exist because dismissal is a serious interference with livelihood and because the law does not leave so serious a matter entirely to the unilateral choice of the employer. If the Respondent’s position were accepted, the consequences would be considerable. It would mean, in practical terms, that an employer may terminate the employment of a probationary employee without assigning any reason and without affording any hearing, provided only that the termination takes place during probation or is accompanied by notice. That would not be a modest qualification of statutory protection. It would be a broad exclusion from it. It would create, for all practical purposes, a category of employees whose protection against unfair termination is weakest precisely when their position is most vulnerable. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 20 That result would open a clear avenue for avoidance of the statutory safeguards. An employer could recruit workers on probation, disengage them without explanation, replace them, and repeat that pattern while remaining largely insulated from scrutiny. The law would then protect most fully the employee who is least vulnerable, and least protect the employee who is most vulnerable. That would be difficult to reconcile with both the text and the purpose of labour legislation. None of this is to deny that probation has a legitimate role. It plainly does. It allows an employer to assess performance, suitability, and compatibility before confirmation. It may justify a degree of flexibility that would not always be available in the case of a long-serving confirmed employee. But flexibility is not arbitrariness. Assessment is not the same as unreviewable discretion. Probation cannot be turned into a mechanism by which the employer frees itself from the obligation to act fairly. If Parliament had intended to exclude probationary employees from the protection of valid reason and fair procedure, one would expect clear language to that effect. It would not be a minor qualification. It would be a substantial withdrawal of protection. No such language appears. Section 26(2) deals with notice. It does not establish a general exemption from fairness. The court would therefore be slow, and indeed unwilling, to infer so sweeping a consequence from language that does not express it. For those reasons, when the Respondent’s case is viewed in the round, the court is satisfied that probation, notice, the asserted Conditions of Service, and the suggested operational justification do not,