Ratified treaty¹

Dismissal without valid reason/ Failure to respect a worker’s right to defend themselves against allegations/ Use of international law as a guide for interpreting domestic law

In July 1999, Mr Tchete, an employee of the “Safeguard Services” company, took three days’ sick leave, informing the company of the reason for his absence. During those three days, Mr Tchete learned that his sister had died. He informed the company that he was extending his absence for this new reason. When he returned to work, he was refused entry to a meeting and, a few days later, he received a letter of dismissal.

Mr Tchete went to court to secure a severance allowance, a reference letter for 1985 to 1989 and five days’ annual leave due to him. Although his request did not touch on the validity of the dismissal, the Court looked at it because of its competence to deal with issues of fairness. At the time of the facts, the Employment Act (2000), which laid down the conditions and procedure for dismissal, had not yet come into force. Accordingly, to determine the validity of the dismissal, the Court looked at Article 31 of the Constitution of the Republic of Malawi, which stipulates that “every person shall have the right to fair and safe labour practices and to fair remuneration”. To interpret the notion of fair labour practices, and to decide what it meant as regards dismissal, the Court drew on ILO Convention No. 158 on Termination of Employment which Malawi had ratified.

First, the Court looked at the reasons for Mr Tchete’s dismissal. In doing so, it interpreted the notion of “fair labour practices” in the light of Article 4 of Convention No. 158, which states that “The employment of a worker shall not be terminated unless there is a valid reason for such termination concerned with the capacity or conduct of the worker or based on operational requirements of the undertaking, establishment or service.” On this basis, the Court deemed that absences from work due to sickness or the death of a sister were not valid reasons for dismissal. Termination of the contract of employment was therefore not justified.

Secondly, the Court looked at the dismissal procedure which the company had followed. It observed that the plaintiff had not had the chance to explain himself before being dismissed. To determine what constitutes a fair dismissal procedure, the Court referred to Article 7 of Convention No. 158, which states that “The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.” On this basis, the Court deemed that the absence of an opportunity to be heard ran counter to the right to fair labour practices.

Interpreting Article 31 of the national Constitution in the light of ILO Convention No. 158 on Termination of Employment the Industrial Relations Court of Malawi thus deemed that the employee’s dismissal, decided without an opportunity to be heard, and motivated by justified absences by the employee, violated his right to fair labour practices, and gave him the right to damages. 

¹ ILO Convention on Termination of Employment, 1982 (No. 158).