IN THE INDUSTRIAL RELATIONS COURT OF MALAWI
MATTER NO. 222 OF 2001
BANJA LA MTSOGOLO……………………………….RESPONDENT
HON. M.C.C. MKANDAWIRE, CHAIRMAN
Applicant – Present
Respondent – Absent
Mrs. Namponya - Official Interpreter
J U D G M E N T
MATTERS IN ISSUE: Termination of employment due to pregnancy.
Salome Jumbo (Mrs. Manda) has brought up this matter against her former employers. The Court shall thus refer to these two parties as the Applicant and Respondent respectively. The Applicant claims that she was dismissed as a result of being pregnant. The Respondent denied the allegations made. They replied in their Respondent’s Statement that they did not terminate the services of the Applicant due to pregnancy; but that the Applicant was a temporary employee on month to month basis, and that her position was publicly advertised and that the Respondent employed the most suitable candidate.
When the matter came up for hearing on 22nd of April 2002, the Respondent did not turn up. They were however personally served with the notice of hearing. No reasons were given for their failure to attend the hearing. The Court therefore went ahead to hear the Applicant in their absence. The Applicant was the only witness for her case.
It was her evidence that in 1999, she saw an advertisement by the Respondent in Karonga looking for a Nurse Aid. She applied for the job and in November 1999, she successfully attended interviews amongst a group of eight applicants. She did report for duties on the 6th of November 1999. On the day of reporting, she was informed that her job was a temporary one and she was not issued with any letter of appointment. After working for a month, she was informed that the holder of the position she was now occupying was on sick leave and that she should continue assisting. In December 1999, the person from sick leave reported back for her work. They worked hand in hand up to February 2000 when she fell sick again. The Applicant said that she worked alone the whole of 2000 and even covered part of 2001 alone. In the year 2001, the Manager of the Clinic assured her that she had now secured a job and advised her that she should now stop doing her vending business but concentrate at this job. The Applicant said that she followed the advice of the Manager and concentrated on the job.
On 4th April 2001, the Manger discovered that she was pregnant. He then enquired from her if it was true that she was pregnant, to which she said yes. He then warned her that she had taken the pregnancy at the wrong time because she needed 4 months leave. He warned her that he would not allow that because they wanted a Nurse Aid all the time. She tried to reason with him but he said that he would not allow that. He however expressed sadness that she had been with them for a long time and that she had also worked very well.
On 24th April 2001, he called her again. He then enquired how old the pregnancy was. She told him six months old. He further asked her if she was still sleeping with the husband. She then told him that the questions were now embarrassing. But he said that he also wanted her. He expressed a lot of disappointment that she was pregnant by a different man. On 27th May 2001, he called her again and enquired from her if she would still work in May. She said yes. Then immediately after this, she saw an advertisement for another Nurse Aid; again (temporary).
In May 2001 the Regional Supervisor Mrs. Msosa came and visited them. She enquired when her sick friend (the Nurse Aid) would resume work. She said that she did not know. In the afternoon of that day, as they were having refreshments, she was invited by the Supervisor Mrs. Msosa. She informed her that she should stop working and continue with her business. They later on told her that a new Nurse Aid would be reporting for duties and that she should teach her the job then stop working. In May 2001 the new recruit reported for work. She taught her the job the whole of May 2001. Then on the 1st of June, the Manager told her to stop working. The Manager told her that a person cannot have two gifts at once and that her gift was the one she had grabbed (meaning the pregnancy). She asked for a reference letter but the Manager refused telling her that being a temporary employee, she did not deserve one.
As I have already said, the Respondent did not come to argue their case. Thus the evidence of the Applicant went unscathed. In looking at the evidence from the Applicant, the Court found that what the Applicant had told it was the truth. She was very consistent and had come to the Court with the plain truth. The Respondents who have not come up front to challenge her story have vindicated her story even more. I shall therefore not analyse the evidence as I would have done as if there was a contradictory version. This Court has addressed its attention towards Section 47 (1) of the Employment Act which provides:-
"A female employee shall be entitled, within every three years, to at least eight weeks maternity leave on full pay".
The law has been made very clear in this country on this issue of maternity leave. The Applicant had worked from 1999 to 2001. She was within her period of entitlement to maternity leave. It is thus very absurd that the Manager at this century said that they would not need her any more. This was contrary to the spirit of the Employment Act.
The conduct of the Manager of Banja la Mtsogolo at the Respondent’s place of work in Karonga is rather shameful. How can a Manager enquire from someone’s wife about issues that relate to her private life with her husband? The Court was heavily overwhelmed with what the Applicant had told her. The Court found that this also amounted to sexual harassment of Salome Jumbo. The Court finds that the termination of the Applicant’s services was very, very unlawful and unfair. It is contrary to the spirit of the Labour and Employment Laws.
The Respondent violated several provisions of the Employment Act one of which is Section 47 to which I have already referred to. But apart from that, there was no justification in terminating her services because of being pregnant which the Court has found as the cause of her termination. The reason that they gave in defence was purely cosmetic. The Court therefore orders that the Applicant should be re-instated immediately.
Before I wind up, let me say that the way the Applicant was treated calls for heavy condemnation on the part of the Respondent. She asked for a reference letter, which was heavily denied. They told her that just go off. This was further violation of her rights under the Employment Act. Section 31 (1) of the Employment Act provides that:-
"On termination of a contract of employment an employer, if so requested by the employee, shall provide the employee with a certificate----------"
I would further caution the Respondents that pursuant to Section 49 (1) of the Employment Act, terminating a woman’s employment because of pregnancy amount to an offence; punishable with a fine of K20,000 and imprisonment of five years. Thus the Respondent should be aware here that further legal pursuit might be following them at their doorsteps.
DELIVERED this --------------day of May 2002 at Mzuzu.