Ratified treaties;¹ Foreign case law²

Reason for dismissal/ Operational requirements/ Restructuring/ Consultations/ Use of foreign case law/ Direct resolution of a dispute on the basis of international law

The respondents were former employees of the appellant. They were dismissed on alleged grounds of restructuring. The respondents challenged the dismissal, alleging that the appellant still required the respondents’ services. The court of first instance, the Industrial Relations Court, found that the dismissal was unfair because the appellant did not follow fair procedures before dismissing the respondents. The Industrial Relations Court had based its decision on ILO Convention No. 158, which provided guidance to determine the procedures required in cases of dismissal. The appellant was dissatisfied with the decision and lodged an appeal to the High Court, which was dismissed, upholding the judgement of the lower court.

The grounds for appeal before the Supreme Court were four, namely that: the judge had erred in law “(a) by finding that it is logical and acceptable to seek guidance from other foreign laws or conventions/treaties so as to fill any apprehensible lacunae in (…) law; (b) by applying ILO Convention No. 158 (…) for the sake of transparency in a democratic Malawi without further considering whether the said Convention was or is applicable in Malawi; (c) by fully adopting the decision in the case of Bristol Channel Ship Repairs v O’Keefe (…) without considering that the decision in that case was based on the provisions of statutes which are not applicable in Malawi; and (d) in that having found that the second respondent (…) had indicated that he was made aware through the Workers Union of the fact that the retrenchment would target non-performers, the learned judge nonetheless rejected that there were any consultations done or made with the employees.”³ The appellant asked that the decision of the High Court that the dismissal was unfair be reversed.

Addressing the above points, the Supreme Court declared that ILO Convention No. 158 should be considered as being applicable to Malawi under section 211(2) of the 1994 Constitution. The court observed that no Act of Parliament had since provided to the contrary.⁴ It stated that foreign decisions based on foreign statutory provisions may be considered in resolving a case as long as the judge is aware of the fact that the decision did not have any binding force but expressly observed that the decision only had persuasive force or authority. Finally, it declared that the consultations (prior to dismissal based on operational requirements) must in fact entail “a genuine engagement of the employees in the process of restructuring. It should not merely be a purported attempt at effecting a unilateral notification from the employer to employees, in a manner which does not at the same time seek a feedback from the employees”.⁵

In the light of the above, the Supreme Court upheld the decision of the Industrial Court as confirmed by the High Court that the appellants did not follow fair procedure prior to dismissing the respondents, which procedure was determined taking into account the requirements established by articles 13 and 14 of ILO Convention No. 158. Thus, the Supreme Court dismissed the appeal.