Gama v St Paul’s Cathedral (IRC 220 of 2006) (220 of 2006) [2008] MWIRC 20 (27 May 2008);

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IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 220 OF 2006


BETWEEN:


GAMA……….…...…………….………… ………………………………. APPLICANT


-and-


ST PAUL’S CATHEDRAL…………......…………..………………… RESPONDENT



CORAM: R. ZIBELU-BANDA (MS); CHAIRPERSON

CHILENGA J; EMPLOYERS’ PANELIST

PADAMBO M; EMPLOYEES’ PANELIST

Mitole Ms.; of Counsel for the Respondent

Applicant; Present

Chinkudzu; Official Interpreter



JUDGMENT


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



Facts

The applicant was employed as a Cook on 1 October 1993. His services were terminated on 23 May 2006 for an alleged act of misconduct where the applicant made a maid also working for the respondent pregnant. It was felt by the respondent that making a maid pregnant was an act of abomination especially because the applicant was a married man. The applicant challenged the termination. He alleged that he had not committed any act of misconduct. He had a love affair with the maid and they mutually agreed that the applicant would be responsible for the care of the maid during her pregnancy. He further asserted that the fact that he was running an affair with the maid did not affect his normal duties for which he was employed. The respondent did not dispute this assertion.

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 Employment Act provides in section 57(1) that the employment of an employee shall not be terminated by an employer unless there is a valid reason for such termination. In the instant case the court found that making a maid pregnant is not a valid reason for termination of employment. The applicant was entitled to have a consensual love affair with a woman of his choice. It actually did not matter that the applicant was a married man as no law prohibits a married man from having a love affair. It also did not matter that the applicant was working in the house of a man of God, the Priest.



This act was not misconduct especially because there was no allegation that the applicant in so doing jeopardized his normal duties. In fact the applicant averred that he performed his work as a Cook well. The respondent did not dispute this piece of evidence. If anything at all, it was important for the respondent to have a code of conduct or conditions of service listing certain acts which were considered abominable when performed by workers in the respondent institution. In this way, the employees would be aware of those acts and would avoid doing that which their employer considered as an act of misconduct. In the instant case the court was not shown any such conditions of service or code of conduct for the workers expressly outlawing sex that resulted in pregnancy or indeed a no sex among workers.


Procedure

The issues of whether the applicant was heard and whether the hearing was fair fall away in view of the court’s finding that the reason for termination was not valid.


Finding

The court finds that the reason for terminating the applicant’s contract of employment is invalid as it violated the applicant’s freedom of association under section 32 of the Constitution. The dismissal also violated the applicant’s constitutional right to fair labour practices under section 31 and section 57(1) 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 party aggrieved by this decision is at liberty to appeal to the High Court within 30 days of this judgment.


Pronounced this 27th day of May 2008 at BLANTYRE.


Rachel Zibelu Banda

CHAIRPERSON

Maxwell RN Padambo

EMPLOYEES’ PANELIST



Joel EvalistoChilenga

EMPLOYERS’ PANELIST