Kaunda v Tukombo Girls Secondary School (IRC 11 of 2005 ) (11 of 2005) [2006] MWIRC 8 (26 January 2006);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


MZUZU REGISTRY


MATTER NO. IRC 11 OF 2005


BETWEEN:


KAUNDA (MRS).…………….………… ………………………………. APPLICANT


-and-


TUKOMBO GIRLS SECONDARY SCHOOL…..………………… RESPONDENT



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

Applicant; present

Respondent; absent without excuse

Namponya; 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 Kondwani Kaunda, a married woman was employed by the respondent as Accounts Clerk. Her husband worked for the same employer as a Teacher. The husband resigned to join the Public Service. The respondent advised the applicant who had her own contract that her services were terminated because her employment was tied to the husband’s contract (AP2). The court looked at the applicant’s offer of employment (AP1). It did not state that the applicant’s contract was dependent on that the husband’s employment. Even if it had said that, it would have been illegal as women have the right under the Constitution to enter into contracts independent of their husbands. 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.


The Law

The applicant’s contract of employment was effectively terminated in March 2004 after she had worked for three years from August 2001. This matter hinges on discrimination therefore provisions of the Employment Act, section 5 will apply. The court shall also have recourse to provisions of the Constitution especially sections 31, 20, and Section 24 (1) (i) 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 ….sex or other status.”


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 which includes the right to enter into contracts….(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 effect of the reason used by the respondent was to prevent the applicant from entering and sustaining an employment contract and pursuing a livelihood in her own right just because she was married.


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 section 57(3)(a) of the Employment Act.


The respondent is a girls secondary school and one wonders whether they expect their students as girls to be treated in the manner that they themselves treated the applicant in this case. Is it not their duty as educators of girls to instill confidence in the girls and teach them independence and survival in their own right? This is a very bad example coming from such an institution of higher education.


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 fair labour practices and her right to pursue a livelihood through employment. The dismissal was therefore unfair and the respondent breached a fundamental human right.




Assessment of Compensation

The applicant prayed for the remedy of compensation. She stated that she had lost salary because of this dismissal. She has tried to look for employment at ADMARC and some shops but to no avail. The court awards the applicant salary lost due to the dismissal from date of dismissal to date of the judgment. The applicant was receiving K6 000-00 per month. Her last salary was in March 2004. The applicant has not been employed since that time. The court awards her K6000-00 multiply by the number of months (33) to date of judgment, December 2006. Total under this head, MK 198 000-00.


Further and in addition to the compensation above, the court awards the applicant compensation under section 63(5) of the Employment Act because the reason for dismissal was based on section 57(3) of the Employment Act. This section provides that: “ The following reasons do not constitute valid reasons for dismissal or for imposition of disciplinary action:- (a) an employee’s race, colour, sex, language, religion, political or other opinion, nationality, ethnic, or social origin, disability, property, birth, marital status or family responsibilities”.


This provision is aimed at deterring employers from using prohibited grounds for dismissal and also to ensure full enjoyment of people’s rights. In Kamwendo V Malamulo Publishing House (Order for assessment) [Matter Number IRC 283/2003 (unreported)], this court awarded the applicant K10 000-00 as compensation for a similar violation. This amount is what would have been awarded had the matter been brought on a specific issue of discrimination under section 5 of the Employment Act. The court awards the applicant K10 000-00 under the provisions of section 63(5).


Order

The court orders the respondent to pay the applicant a total of MK208 000-00 as compensation for unfair dismissal and for discrimination. The amount must be paid within seven days of this order.


Any party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment. Appeal lies on matters of law and jurisdiction, see section 65(2) of the Labour Relations Act.




Pronounced in Open Court this 26th January 2007 at MZUZU.




Rachel Zibelu Banda

CHAIRPERSON.