Mang oma v Lister (IRC 11 of 206) (11 of 206) [2006] MWIRC 217 (21 August 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 283 OF 2003


BETWEEN:


KAMWENDO…...…………….………… ………………………………. APPLICANT


-and-


MALAMULO PUBLISHING HOUSE...…………..………………… RESPONDENT



CORAM: R. Zibelu Banda (Ms.); Chairperson

Applicant; present

Respondent; absent without excuse

Ngalauka; Official Interpreter



JUDGMENT


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


Facts

The applicant Gregory Kamwendo was employed in February 1971 as Lithography and Maintenance Printer. He was dismissed in 2002 for allegedly contracting a polygamous marriage. The applicant challenged the dismissal alleging that the reason was not valid. He challenged the validity of the reason in view of the constitutional right to marry and he also challenged the reason on the basis that it was unfounded. 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 outstanding severance pay for 31 years of service.


The Law

The court shall have recourse to the provisions of the Constitution especially sections 31, 20, 22(3) and (5).


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”.



In the instant case the facts are so clear that the respondent discriminated against the applicant on the basis of his marital status. The effect of the reason used by the respondent was to prevent the applicant from contracting a marriage with a person of his choice with whom he could found a family: a right guaranteed by the Constitution.


Economically, the effect of using such a reason for dismissal, was to deny the applicant his 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 and was not proved.


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. Marriage is a constitutional right therefore it is unfair labour practice to dismiss an employee on the basis of his marital status, section 5(1) of the Employment Act.


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 constitutional right to fair labour practices under section 31 and section 57 of the Employment Act. The dismissal was therefore unfair.




Assessment of Compensation

The court shall assess compensation provided under section 63 of the Employment Act 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.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 21st day of August 2006 at BLANTYRE.




Rachel Zibelu Banda

CHAIRPERSON.