Banda v. Lekha

The plaintiff was employed by the defendant until she was dismissed immediately and without formality after she tested positive for HIV during a voluntary test. Before her termination, the plaintiff had never been incapacitated due to her HIV status and was leading a normal life. The court held that fair labor practices entitle a terminated employee to know the reason for their dismissal and to explain and defend themselves. Moreover, the court explained that the burden of showing a reason for dismissal and that such reason was valid lay on the defendant and determined that the defendant had failed to meet that burden. Stating that incapacity due to ill health is a ground for dismissal only where the dismissed person is so sick as to not be able to perform their job duties, the court declared that the dismissal was discriminatory on the basis of HIV status. The prohibition of unfair discrimination is included in the Constitution of Malawi’s broad anti-discrimination provision as well as Malawi’s international obligations under the International Labor Organization Convention 111, Discrimination (Employment and Occupation) Convention. The court ordered that a remedy be assessed on a date to be fixed.

Topics

• Employment discrimination
• Gender discrimination
• International law

Geographical location

• Africa
• Malawi
• Lilongwe District

Keywords

• constitutional rights
• HIV
• AIDS

Year

• 2005

External URL

• Banda v. Lekha

Court

• Industrial Relations Court of Malawi

Type

• Domestic Case Law

Jurisdiction

• Malawi