Jana v Attorney General (IRC 312of 20055) (NULL) [2006] MWIRC 123 (03 October 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 312 OF 2005


BETWEEN:


JANA……..…………………..……………………………………………. APPLICANT


-and-

ATTORNEY GENERAL……………………………………………….RESPONDENT



CORAM: R. Zibelu Banda (Ms); Chairperson

Hara; of Counsel for the Applicant

Kachale; State Advocate

Mwangulube; State Advocate

Ngalauka; Official Interpreter

JUDGMENT

  1. Unfair Labour Practice-Transfer-Based on Political considerations-Discrimination-Section 5(1) Employment Act

  2. Unfair Labour Practice-Promotion- Obligation to promote-Whether the employer was under any contractual obligation to promote-Whether failure to so act was discriminatory

  3. Unfair Labour Practice-Terms and Conditions of Employment-Voluntary retirement-Obligation to retire-Whether it was mandatory-Term and Condition of the contract

  4. Discrimination-Positive discrimination-Government-Duty bound under the Constitution and international treaties like the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) to implement programmes and activities that encourage affirmative action/ positive discrimination

Facts

The applicant Florida Jana took out this action against the Malawi Government through the Office of the Attorney General claiming discrimination in the manner of her transfer from District Assembly to Ministry of Persons with Disabilities; the failure of Malawi Government to promote her to Principal Secretary and the refusal of Malawi Government to retire her basing on a voluntary retirement scheme. The respondent on the other hand averred that there was no discrimination in the manner that the transfer was conducted; there was no failure to promote the applicant and that the voluntary retirement scheme did not materialise due to financial considerations.


Issue

Whether under the circumstances of this case the Court can find discrimination in the applicant’s transfer, non promotion and voluntary retirement scheme as understood in section 5 of the Employment Act?


Discrimination

Discrimination is defined as the unequal treatment of parties who are similarly situated. The Employment Act prohibits discrimination in section 5 (1) which states that: No person shall discriminate against an employee or prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, marital or other status or family responsibilities in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship.


Burden of Proof

In claims for discrimination unlike in claims for unfair dismissal under section 61(1) of the Employment Act, the burden is on s/he who alleges to show on a balance of probabilities that s/he was treated unequally among peers. The burden then shifts to the respondent to show that the act or omission was not based on discriminatory considerations.


  1. Voluntary Retirement

Upon considering the circumstances of the case, the Court finds as a fact that the voluntary retirement scheme did not materialise as its implementation was dependant on other factors including, according to the respondent, availability of funds to satisfy all eligible applicants among who was the applicant. It was shown by the respondent that none of the applicants who applied under the scheme was considered for retirement under the scheme. It was also found that there was no absolute requirement on the respondent to retire the applicant under the scheme as “each application was to be approved on its own merits”, see AP4. There was no evidence that the applicant was treated disparately from persons in a similar position as herself. Therefore the Court finds that this claim was not proved and it is dismissed.


  1. Promotion

The record shows that the applicant was last promoted in 1999 to S4 grade which is a senior position in the Civil Service, see AP3. The record further shows that the applicant retired from the Civil Service in 2000. It shows further that after October 2000 the applicant was engaged on what are termed short term (three year) employment contracts with government. The first contract was signed in November 2000. In November 2003 she signed a second contract. The terms and condition of the contracts are not available on record although they were identified as ID1 and ID2 respectively. The documents were not tendered in as evidence. In the absence of these important documents the Court can not determine whether or not the respondent was under a legal obligation to promote the applicant to the position of Principal Secretary (PS).


It must be pointed out that it is the duty of parties to provide all relevant documents to court for determination of their cases. It is not the responsibility of a court especially where Counsel is representing a party to seek and ask for evidence from parties. It is trite law that rights, duties and obligations of a party in an employment contract are derived first and foremost from the contract of employment and that it is only where the contract is in contravention with the law that a party may resort to apply the statutory terms and conditions over contractual terms.


The applicant informed Court that she was due for promotion in 2003 and that it was the prerogative of the Head of State to promote her on recommendation from the Secretary to the President and Cabinet (SPC). At the time under consideration the SPC office was held by Mr Upindi. In essence it was Mr Upindi who was if anything under an obligation to recommend to the Head of State that the applicant was according to her qualifications, experience and performance eligible for promotion to PS position. However, instead of such recommendation, the court was shown a document, AP 1, where Mr Upindi, was said to have shied away from making the recommendation because of “her sensitive back ground”. The court was informed that sensitive background related to the applicant being a sister to Mrs Brown Mpinganjira, and that Mr Brown Mpinganjira was a politician.


The evidence shows that Mr Upindi had a duty to recommend persons to be considered for promotion to the position higher than S4/P4. Yet instead of recommending the applicant, Mr Upindi, allegedly considered the sensitive background of the applicant and therefore failed to make the necessary recommendations. In this instance, Mr Upindi, was the responsible officer acting for the respondent. His actions or omissions were acts or omissions of government. It is therefore proved through AP1 that the applicant’s stagnation at S4/P4 was an act of discrimination where the government considered irrelevant factors for not recommending the applicant for promotion.


This finding is supported by the fact that it was shown that during the period several appointments for Principal Secretaries were made even to the Ministry of Persons with Disabilities where the applicant was Deputy Principal Secretary. The applicant held the necessary academic qualifications including a relevant Bachelors Degree, a Masters in Business Administration (MBA), and relevant experience. According to AP1 she was suitable for the promotion. There was no valid reason for skipping her for promotion other than for the fact that she had a sensitive background, an unconstitutional, irrelevant and illegal consideration. This claim therefore succeeds.


This claim succeeds further on the basis of the applicant’s assertion that during this time the Malawi Government was proclaiming its commitment to the promotion of women to responsible positions in the Public Service. This was one woman who had dedicated over 23 years to Public Service, held the necessary academic and professional qualifications and was regarded by her immediate supervisor as a capable and proficient Public Servant, see AP1. This assessment was not contradicted by the respondent’s witness.


Section 5(2) of the Employment Act, encourages any programme or activity that has as its object the improvement of conditions of disadvantaged persons, including those who are disadvantaged on the ground of their sex. This provision has its roots in the Constitution, section 23, which guarantees women full and equal protection by the law, and the right not to be discriminated against on the basis of their gender or marital status and further that legislation shall be passed to eliminate customs and practices that discriminate against women, particularly such as discrimination in work, business and public affairs.


It is high time that government’s pronouncements and commitments especially on rights and freedoms of the disadvantaged including women were given not only lip service but effect. The Government of Malawi is the biggest employer in Malawi and it is duty bound under the Constitution and international treaties like the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) to implement programmes and activities that encourage affirmative action/ positive discrimination. The Malawi Government must set the pace where the private sector must follow and emulate in the management of their human resources. Countries in the region have put in place mechanisms that support and promote women empowerment in the workplace, for instance, the South African policy on awarding government contracts only to enterprises that have a specified percentage of women in management positions. These are issues that must be done and not only heard of on the radio or local television.


Women who qualify and are capable in all respects must be considered for relevant positions where they can contribute and make an impact to the socio-economic growth of this country. The courts as one arm of government with the singular mandate of protecting rights of people guaranteed under the Constitution must take its rightful role and ensure that these rights are real and are accorded full legal protection.


  1. Transfer

The applicant alleged that her transfer from the District Commissioner’s Office to the Ministry of Persons with Disabilities was motivated by political inclinations. Her proof was the government’s loose memo tendered and marked AP1. The respondent did not dispute the contents of the memo nor did they disown it. It was argued by the applicant that her transfer although not affecting any terms under her contract, it affected her position in society. For instance, as District Commissioner she was entitled to use of official vehicle which is a status symbol. Due to her transfer she lost the use and control of the vehicle.


Further she argued that her status administratively was lowered due to this transfer because as District Commissioner (DC) she was Head of Department/ Controlling Officer with decision making authority. While as Deputy Secretary in the Ministry she was not Head of anything nor was she controller of anything let alone pool car. Further because according to AP1 people knew the reasons behind her transfer, she was shunned, ridiculed as a rebel and not respected. She lost any authority that she enjoyed as DC. All these factors negatively affected her. In conclusion, this was not a normal transfer based on “exigencies of service”.


Even if the transfer was based on exigencies of service, the respondent was not able to show the court what these exigencies were. It was in fact shown that there was no vacancy for S4/P4 in the Ministry of Persons with Disabilities at the material time. There was no evidence that the applicant was not exercising her functions prudently as DC. There was no evidence shown as to why the applicant of all the DC’s was the one to be transferred at this particular time. All in all the court finds that the applicant was discriminated against in her transfer. The transfer was motivated by political consideration or other illegal consideration prohibited by the laws of Malawi. This action therefore succeeds.


Remedy

The court shall assess an appropriate remedy on a date to be fixed. Both parties shall be required to attend the assessment. Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.



Pronounced this 3rd day of October 2006 at BLANTYRE.



Rachel Zibelu Banda

CHAIRPERSON.