Domestic Case Law

Jumbo v. Banja La Mtsogolo Industrial Relations Court of Malawi (2002)

Employment discrimination, Gender discrimination, Sexual harassment

The applicant, Salome Jumbo, claimed she was dismissed as a result of her pregnancy. In 1999, the applicant started as a temporary nurse aid at a clinic and continued in that position until 2001. In 2001, the manager of the clinic assured the applicant that her job had become permanent. On April 4, 2001, the manager discovered that the applicant was pregnant. He immediately warned the applicant that he would not allow her to keep her job if she remained pregnant, as they wanted a permanent nurse aid. The manager also enquired into the applicant’s private affairs and made inappropriate sexual remarks. On June 1, 2001, the manager terminated the applicant’s employment explicitly informing her that her termination was due to her pregnancy. The applicant asked for a reference letter, but the manager refused saying that she was a temporary employee and did not deserve one. The Industrial Relations Court of Malawi (the “Court”) ruled that the termination was contrary to the spirit of the Employment Act and ordered that the clinic immediately re-instate the applicant. The Court found that the respondent specifically violated the applicant’s rights under §31(1) of the Employment Act, which requires employers to provide a reference if the employee requests one on termination of an employment contract. In addition, the respondent violated § 49 (1) of the Employment Act, which dictates that “terminating a woman’s employment because of pregnancy amount[s] to an offence [that is] punishable with a fine of K20,000 and imprisonment of five years” (p. 3). The Court also found that the manager’s inquiries into the applicant’s private affairs with her husband amounted to sexual harassment. This case is notable in Malawi because it set the precedent that inquiring into a married woman’s private affairs with her husband is an unfair labor practice.

Mwanza v. World Vision Malawi Industrial Relations Court of Malawi (2007)

Employment discrimination, Gender discrimination

The respondent employed the applicant on a fixed term contract as a data entry clerk. The applicant’s contract term was four years expiring on January 10, 2005. However, the respondent terminated her on December 22, 2003. The reason given for her termination was that she had become pregnant out of wedlock. The applicant challenged the dismissal and took legal action against the respondent. The respondent conceded that the reason for termination was invalid and asked the court to decide on a remedy. The applicant asked for reinstatement as the remedy. The Industrial Relations Court of Malawi (the “Court”) found that reinstatement was an inappropriate remedy because the applicant’s fixed contract had already lapsed in time. Instead, the Court awarded the applicant compensation for the employment benefits lost between the effective date of her termination (March 22, 2004) and the expiration of her contract (January 10, 2005). The Court cited § 63 (4) of Malawi’s Employment Act, which “provides that compensation shall be just and equitable” (p. 2). The Court awarded additional compensation to the applicant pursuant to §§ 63(5)(d), 57(3) and 49 of the Employment Act. Section 57(3) “prohibits discrimination on the basis of one’s sex, marital status or other status;” whereas, § 49 prohibits “dismissal on grounds of pregnancy (p. 3).”

Kaunda v. Tukombo Girls Secondary School Industrial Relations Court of Malawi (2007)

Employment discrimination, Gender discrimination

The applicant and her husband were both employed by the respondent as an accounts clerk and teacher, respectively. After the applicant’s husband resigned to join the Public Service, the respondent terminated the applicant’s employment contract noting that her employment was tied to her husband’s. The applicant challenged the dismissal alleging that it was invalid. The Industrial Relations Court of Malawi (the “Court”) found that the respondent discriminated against the applicant on the basis of her marital status. The Court reasoned that “the effect of the reason used by the respondent was to prevent the applicant from entering and sustaining an employment contract and pursuing a livelihood in her own right because she was married” (p. 2). In reaching its decision, the Court consulted § 5 of Malawi’s Employment Act and §§ 20, 24(1)(i), 24(2)(b) and 31 of Malawi’s Constitution. The Court held that the applicant’s termination was invalid because the reason for her termination “denied her right to engage in economic activity through employment” and “her right to fair labor practices” (p. 2). Therefore, the applicant’s termination was also prohibited under section 57(3)(a) of Malawi’s Employment Act. The Court awarded the applicant compensation for the unfair dismissal and discrimination.

Kayira v. State High Court of Malawi (2015)

Statutory rape or defilement

In 2013, the appellant was found having sexual intercourse with the victim, who was 15 years old. The next day the victim told the court that she and the appellant had been in love since June 2011 and that they had a sexual relationship. She testified that they were married and she was his second wife, but Malawi required parental permission for children aged 15-17 to marry (as of 2015, section 14 of the Marriage, Divorce and Family Relations Act requires that parties be 18 years old to marry). Malawi charged the defendant with defilement contrary to Penal Code § 138(1) and indecent assault contrary to § 137(1). Section 138(1) provides, “Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment to life” (¶ 7.1). In the lower court, the appellant pleaded not guilty arguing that the victim consented to the sexual acts and that she showed him an identification card that she had doctored to state that she was 17 years old at the time. Acknowledging that the victim had changed her year of birth on her identification, the lower court found the appellant guilty on both counts. The appellant filed two grounds of appeal asking: (i) “whether the conviction of the appellant was proper with regard . . . to the circumstances of the case;” and; (ii) “whether the sentences were manifestly excessive considering the” fact the victim had mislead the appellant with respect to her age (¶ 3.1). The High Court upheld the conviction citing the strict liability nature of the crime. The Court noted that the victim was clearly underage at the time of the sexual intercourse and rejected the defendant’s consent defense noting that “girls under the age of . . . [16] are incapable of giving consent due to immaturity (¶ 7.4).” Notwithstanding, the Court reduced the appellant’s sentence to four years for defilement and one year for indecent assault to run concurrently, noting that the appellant did not know that the victim was under age.

Phiri v. Smallholder Coffee Farmers Trust Industrial Relations Court of Malawi (2007)

Employment discrimination, Sexual harassment, Sexual violence and rape

The applicant, was a security guard. She was employed on a fixed term renewable contract, renewable upon satisfactory performance. On December 26, 2005, near the end of her employment term, one of the applicant's colleagues attacked her and attempted to rape her, only stopping after being apprehended when she shouted for help. The applicant reported the incident to her employer’s management, which convened a hearing. During the hearing, the company’s human resources representative accused the applicant of misconduct and embarrassing the company by discussing the attempted rape, which the company considered to be an "inside thing." On December 31, 2005, the company fired the applicant, citing the expiring fixed term contract for support. The applicant brought her case to the Industrial Relations Court of Malawi (the “Court”). Calling it "a case of the worst forms of unfair labour practices," the Court found that (i) the applicant had reason to believe that the company would renew her contract and (ii) that their refusal to do so was based on the attempted rape incident. According to the Court, the company’s actions breached an implied term of the plaintiff’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees from sexual harassment and abuse. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment, other than reading § 5 of the Employment and Labor Relations Act with § 20 of Malawi’s Constitution, which prohibit unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that sexual harassment creates a hostile work environment, leads to unfair labor practices, and thus constitutes discrimination based on sex. Therefore, the Court found the plaintiff's dismissal invalid and held that the company violated her “right to fair labor practices, the right to work, her right to safe working environment and personal dignity.” The Court considered remedies, finding that compensation in the form of 57 months' salary was appropriate, noting that the first-choice remedy in unfair dismissal cases, reinstatement, was not acceptable in this case because of the egregious conduct of the company's human resources representative.