Court of Industrial Relations of Malawi, Banda v. Mahindra Lekha, 1 June 2005, Case No. IRC 277 of 2004
Constitution of the Republic of Malawi
Section 211
- Any international agreement ratified by an Act of Parliament shall form part of the law of the Republic if so provided for in the Act of Parliament ratifying the agreement.
- International agreements entered into before the commencement of this Constitution and binding on the Republic shall form part of the law of the Republic, unless Parliament subsequently provides otherwise or the agreement otherwise lapses.
- Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall have continued application.
Labour Relations Act
Art. 2(2)
This Act shall be interpreted so as to give effect to the Constitution and the obligations of any international treaty, including any international labour conventions entered into or ratified by Malawi.
Malawi
Dismissal , Protection against discrimination in employment and occupation
Direct resolution of a dispute on the basis of international law
Ratified treaties;1 Foreign case law2
Dismissal/ Discrimination/ HIV and AIDS/ Direct resolution of a dispute on the basis of international law
The claimant worked for the defendant, Mahindra Lekha, but following an HIV test that gave a positive result she was dismissed without any formality.
In order to resolve the dispute, the Court made reference to the provisions of the Constitution, which enshrine the right to fair labour practices, understood to be the right to know the reason for dismissal and have the opportunity to defend oneself. According to section 61 (1) of the Employment Act, the burden of showing the reason for dismissal and that it was a valid reason is on the respondent. The Court considered that in this case the defendant had not given sufficient grounds to conclude that the dismissal was fair; therefore, the Court concluded that it could be understood that the dismissal was a consequence of the claimant’s health condition. The Court also referred to the Constitution and case law relating to discrimination cases, indicating that:
“Section 20 of the Constitution prohibits unfair discrimination of persons in any form. Although the section does not specifically cite discrimination on the basis of ones HIV status, it is to be implied that it is covered under the general statement of anti discrimination in any form. This is why the South African Constitutional Court held in Hoffman v South African Airways [2000]21 ILJ 2357 (CC) that:
“The need to eliminate unfair discrimination does not arise only from Chapter 2 of our Constitution. It also arises out of international obligations … In the context of employment, the ILO Convention 111, Discrimination (Employment and Occupation) Convention, 1958 proscribes discrimination that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.’”3
The Court argued that Malawi had undertaken these same obligations since it had ratified ILO Convention No. 111 and, therefore, it was obliged to give effect to the rights and freedoms of people with HIV and concluded that the claimant’s constitutional rights to equality and the right to fair labour practices had been violated. The Court therefore declared the dismissal unfair and ordered the establishment of a new court date to determine the reparation measures that should be taken.
1 ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); African Charter on Human and Peoples’ Rights, 1981.
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