Mwanamanga v Malamulo Mission Hospital (IRC 124 of 2003) (124 of 2003) [2005] MWIRC 14 (23 February 2005);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 124 OF 2003


BETWEEN:


MWANAMANGA…………….………… ………………………………. APPLICANT


-and-


MALAMULO MISSION HOSPITAL……………..………………… RESPONDENT



CORAM: R. Zibelu Banda (Ms.), Deputy Chairperson

Applicant; present

Respondent; absent without excuse

Ngalauka, Court Clerk



JUDGMENT


Dismissal Law-Justification- Reasons for dismissal-Discrimination-Marital status-Statutory excluded-Prohibited by law-Violation of the Law-Remedies-Compensation.


Facts

The applicant Brenda Mwanamanga was employed in August 1995 as Librarian. She was dismissed on 30 January 2000 for marrying a polygamist. The applicant challenged the dismissal alleging that the reason was not valid. The respondent did not attend hearing. No reason was given for failure to attend hearing. The matter had to proceed in the absence of the respondent pursuant to section 74 of the Labour Relations Act, which provides that:

“ If a party fails to attend or to be represented at the proceedings of the Industrial Relations Court without good cause, the Industrial Relations Court may proceed in the absence of that party or representative”.



The Issue

The applicant prayed to this court to find that the dismissal was unfair because the reason for the dismissal was not valid and to order that the respondent pay compensation and long service pay for the years of service.


The Law

The applicant’s contract of employment was effectively terminated in February 2000 therefore the Employment Act 2000 does not apply in this case. The court shall have recourse to the provisions of the Constitution especially sections 31, 20, 22(3) and (5) and Section 24 (1) and (2)(b).


Section 31 provides that:


“Every person shall have the right to fair and safe labour practices and to fair remuneration.”


Section 20 provides that:


“Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of….or other status.”


Section 22(3) and (5) provides as follows:


All men and women have the right to marry and found a family…… subsection (3) shall apply to all marriages at law, custom and marriages by repute or by permanent cohabitation”.


Section 24 (1) provides that:


Women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status….(2) Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as (b) discrimination in work, business and public affairs”.


In the instant case the facts are so clear that the respondent discriminated against the applicant on the basis of her marital status. The letter of termination signed by Mr. D F Phiri, Administrative Council Secretary for the respondent and submitted into court by the applicant as exhibit “AP1” said:


TERMINATION OF SERVICES

“The administration in its recent meeting of the 18th January 2000 voted to terminate your services with one month notice on the grounds of marrying a polygamist.”


The effect of the reason used by the respondent was to prevent the applicant from marrying a man of her choice with whom she could found a family: a right guaranteed to her by the Constitution.


Economically, the effect of using such a reason for dismissal, was to deny the applicant her right to engage in economic activity through employment. Further, the applicant was denied a right to fair labour practices as the reason for termination was not valid.


The reason is one of the excluded reasons under the laws of Malawi. It is not even a defence that the respondent’s conditions of service prohibit polygamous marriages among its work force. If there is any such condition, such condition is inconsistent with the Supreme Law of the land: the Constitution and therefore invalid.


Finding

The court finds that the reason for terminating the applicant’s contract of employment is invalid as it violated the applicant’s right to marry and found a family under the Constitution. The reason also violated the applicant’s right to fair labour practices. The dismissal was therefore unfair.


Assessment of Compensation

The court shall assess compensation provided under section 46 of the Constitution on a date to be fixed and both parties shall be required to attend the assessment. Any documents or relevant material that may be used as evidence must be brought and produced in court for assessment purposes. Any unjustified adjournments shall not be entertainment at assessment.


Pronounced in Open Court this 23rd day of February 2005 at LIMBE.




Rachel Zibelu Banda (Ms.)

CHAIRPERSON.