Phiri v. Smallholder Coffee Farmers Trust

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.