The plaintiff, Phiri, 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 Phiri’s colleagues attacked her and attempted to rape her, only stopping after being apprehended when the plaintiff shouted for help. The plaintiff reported the incident to her employer’s management. In response, the company’s management accused her of misconduct for revealing to the public what the company considered an internal matter. On December 31 2005, the company fired the plaintiff citing the expiring fixed term contract for support. The plaintiff brought her case in front of the Industrial Relations Court of Malawi (the “Court”). The Court found that she had reason to believe her contract would have been renewed and that the company’s failure to renew her contract was based on the attempted rape incident. According to the Court, the company’s action breached an implied term of Phiri’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees. The Court found that this incident was sexual harassment. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment. The closest Malawi’s labor regulation came to prohibiting sexual harassment in the workplace was § 5 of the Employment and Labor Relations Act read with § 20 of Malawi’s Constitution, which prohibits unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that inappropriate sexually based behavior (e.g. sexual advances) creates a hostile work environment and leads to unfair labor practices. Therefore, the Court found Phiri’s dismissal invalid and held that the company violated Phiri’s “right to fair labor practices, the right to work, her right to safe working environment and personal dignity” (p 4).
- Geographical location