High Court of the Republic of Maldives, Maldives Transport and Contracting Company Plc. (MTCC) v. Ahmed Mohamed, 30 January 2012, case No. 2011/HC-A/134
Constitution of the Republic of Maldives
Article 68 (Interpretation)
When interpreting and applying the rights and freedoms contained within this Chapter, a court or tribunal shall consider and promote the values that underlie an open democratic society based on human dignity, equality and freedom, and shall consider international treaties to which the Maldives is a party.
Use of international law as a guide for interpreting domestic law
Dismissal of an employee without valid reason/ Procedure for termination of employment/ Reference to international law as a guide for interpreting domestic law
Ahmed Mohamed, an employee of Maldives Transport and Contracting Company Plc. (MTCC), had been dismissed by the company for alleged professional inadequacy. Upon dismissal, Ahmed Mohamed brought a case against his former employer to the Employment Tribunal claiming unfair dismissal as a result of the absence of a valid reason for dismissal. The tribunal found in favor of the claimant and ordered reinstatement in addition to the payment of salary and other remuneration for the period commencing from the date of dismissal until the delivery of decision of the Tribunal.
Upon appeal of the decision of the Tribunal by MTCC the High Court taking into consideration Article 7 of the ILO Termination of Employment Convention, 1982 (No. 158), and Articles 7, 8, and 9 of the ILO Termination of Employment Recommendation 1982 (No. 166) and the established legal principles of ‘open democratic societies’ such as the United Kingdom, Australia, New Zealand and Canada, ruled that, for a decision to terminate an employee to be deemed fair and just, the employer must prove that the termination was substantially and procedurally fair. The court held that for a dismissal to be substantially fair, the employer has to establish that there was a valid reason for the decision to dismiss and that for the dismissal to be procedurally fair, the employer has to establish that he adopted a fair procedure in dismissing the employee.
The court, heavily borrowing from the principles established by the ILO and the established legal principles of the above mentioned countries for the first time, fashioned the procedure an employer had to follow while dismissing an employee for “reasonable cause” under Clause 214 of the Employment Act5. The procedure is as follow:
(a) Raise the performance issue(s) with the employee (providing as much details as possible at the time) and allow the employee a chance to respond to the matters raised regarding their performance;
(b) Advise the employee on what needs to improve and what steps to take in order to improve;
(c) Set a time frame for improvement, and warn the employee that failure to improve performance within the time frame may result in the dismissal of the employee;
(d) If the employee fails to improve the performance within the time frame allocated, again allow the employee a chance to respond to the matters regarding performance and the potential dismissal;
(e) Come to a final decision on the steps to be taken, giving due consideration to the employee’s response to the circumstances of the situation;
(f) If employer decides to dismiss the employee, advise the employee of the decision, giving reasons for the decision.
In addition to the above steps, the court also held that the employees, if they request, should be given the opportunity to solicit assistance from a person of their choosing.
In light of the above, the High Court upheld the decision of the Employment Tribunal, that the appellant was not able to establish procedural fairness in their decision to dismiss the employee, which procedure was determined taking into account the requirements established by the ILO Convention (No. 158) and the ILO Recommendation (No. 166).