Antsirabe Labour Court, Ramiaranjatovo, Jean-Louis v. Fitsaboana Maso, 7 June 2004, Judgment No. 58
Constitution of the Republic of Madagascar
Preamble
(…) Considering its geopolitical situation in the region and its committed participation in international entente, and adopting: - the International Charter of Human Rights; - the African Charter on Human and Peoples’ Rights; - the Conventions on the rights of women and of the child, and considering these to be an integral part of its law, (…)
Article 82, paragraph 3(VIII)
(…) Treaties or agreements which have been duly ratified or adopted shall, upon their publication, have higher authority than the laws, provided that each agreement or treaty is applied by the other party.
Madagascar
Protection against discrimination in employment and occupation
Direct resolution of a dispute on the basis of international law
Ratified treaty;1 Instruments not subject to ratification2
Discrimination on the grounds of religion/ Dismissal based on change of religion by a worker employed by a religious institution/ Assessment by the tribunal of the qualifications required for his job/ Discrimination based on religion/ Direct resolution of a dispute on the basis of international law
A worker employed as a statistician by an institution belonging to a Lutheran church had been dismissed because, according to his employer, he had become untrustworthy by lying about the reason for one of his absences. The employee went to court to seek damages for unfair dismissal, on the grounds that the real reason for his dismissal was that he had abandoned the Lutheran faith for another one.
The Tribunal decided that the real reason for the dismissal had indeed been the plaintiff’s change of religion. It thus had to judge whether the dismissal was valid, given that the internal regulations of the institution, which had to promote the Lutheran faith, specified membership of that religion as a condition of recruitment.
Even though the national Constitution laid down the principle of banning discrimination in employment based on religion, in a general way, the Tribunal choose to turn to the more precise provisions of ILO Convention No. 111, which, in particular, marks out the limits of the notion of discrimination in employment and occupation. In settling the dispute, the judgment referred especially to Article 1(2) of that Convention, which states that “Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”
In applying this Article, the Antsirabe Labour Court considered that despite the religious nature of the employing body, the Lutheran faith could not be deemed an inherent requirement for carrying out the job of a statistician. Basing its decision directly on ILO Convention No. 111, the Labour Tribunal declared the employee’s dismissal illicit, and awarded the employee the damages that he had claimed.
1 ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
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