(Termination
of services of a person serving probationary period; justification for
termination.)
The
applicant commenced this action seeking redress for unfair termination of her
services. She was employed by the respondent as Assistant
Officer, Human Resource,
Grade MRA 9, on 14th February 2000.
She was put on probation for twelve months from February 14, 2000. Her
services were terminated on 12th February 2001. The reason for
termination was that her services were no longer required at the respondent’s
Authority.
The
applicant believed that her services were still required because her post
existed at the Authority’s staff establishment. In response, the respondent
explained that although the post may have existed, it did not necessarily mean
that they had to fill or maintain it. The respondents were not obliged to
maintain the applicant if the operational needs did not require her services in
that post.
The
applicant in both her written and oral submissions asserted that her termination
was unfair. Her fundamental rights to equal treatment and right to employment
had been violated. She said this because the procedure to terminate her services
was flawed.
Firstly,
she contended that the respondent did not comply with the Employment Act 2000
(hereinafter referred to as the Act) especially sections 57, 58 and 61 of the
said Act.
Secondly,
she alleged that the respondent violated Condition 31 contained in a document
titled: Malawi Revenue Authority (MRA): Staff Manual. This document she
asserted contained terms and conditions of employees of the respondent
Authority.
The
Employment Act 2000 provides in section 26(2) that:
“During a probationary period, a contract of employment may be terminated at any time by either party without notice.”
The
effect of this section is that unlike confirmed employees, employees on
probation are not entitled to notice before termination of their services.
However the section does not provide any other procedure for termination of
services of persons on probation. It is presumed, therefore, that the general
procedure on termination of services as provided in the Act applies equally to
employees on probation. This is buttressed by the fact that the Act does not
provide a different definition of employee for those on probation. An employee
is defined as a person who offers his/her services under a contract of
employment.
The
applicant stated that the respondents had not complied with sections 57, 58 and
61 of the Act. In relevant parts section 57 states as follows:
Section
57 (1) “The
employment of an employee shall not be terminated by an employer unless there is
a valid reason for such termination connected with the capacity or conduct of
the employee or based on the operational requirements of the undertaking.”
Section
57(2) “The employment of an employee
shall not be terminated for reasons connected with his capacity or conduct
before the employee is provided an opportunity to defend himself against the
allegations made, unless the employer cannot reasonably be expected to provide
the opportunity”
While section 58 provides that if an employer does not comply with section 57, the dismissal shall be unfair. Section 61 states that if an employer fails to provide a reason for dismissal the dismissal shall be presumed unfair.
The effect of these sections is that although the applicant was not entitled to notice she was entitled to know the reasons for her termination of services and the respondents were obliged to provide the applicant an opportunity to defend herself.
The respondents asserted that they did not need the services of the applicant. The reason was that due to their operational needs, they did not intend at that time to fill or maintain the applicant’s position although the post existed. To this effect, it was further submitted that the respondent did not require the applicant to carry out the work that she was employed so to do. This was a valid reason for purposes of the operational requirements of the Authority at the time.
Having proved that there was a valid reason to terminate the applicant’s services, the respondents had to answer whether they provided an opportunity to the applicant to defend herself. Section 57(2) above comes in point. According to that section an employer is obliged to afford the opportunity where the reason for termination is related to capacity or conduct of the applicant. This was not the case according to the facts before the court. The reason for termination was neither related to the applicant’s capacity nor conduct. Therefore the respondents had no duty to comply with section 57(2). In any case, what allegation would the applicant be defending herself from?
Particulars of Employment
The respondent objected any reference to the MRA Staff Manual because he said this was not an approved document containing terms and conditions of service of staff at MRA. The court finds, however, that the respondent has a legal obligation under section 27 of the Act to issue to its employees a written statement containing particulars of the main terms and conditions of employment. The respondent could not produce any written statement of particulars of employment to guide this court. In the absence of such particulars the court resorted to condition 31 of the MRA: Staff Manual, which, states as follows:
“Prior to the termination of
any probationary employment the employee shall be informed on the areas of
incompetence or inefficiency and may be granted an opportunity to improve his
performance in relation to such areas and generally”
The condition applies to situations where the employee on probation is accused of incompetence or inefficiency. It is clear that the reason for termination of applicant’s services was not related to incompetence or inefficiency. Even if the reasons for termination had been incompetence or inefficiency the respondents would not be compelled to provide that opportunity for improvement. This is because the condition is not mandatory, as, the action word is “may grant”.
It is trite law that an employer cannot be forced to engage or maintain an employee. This is why every contract of employment has provision for termination of services at the initiative of either party. As long as the provisions for termination are complied with there is nothing that even a court of law can do. To this effect, it is said that:
“It is not practicable to make an employer and employee work together in circumstances where one of the parties is not prepared to continue the relationship: To order continuation of a contract of employment would be to turn contracts of service into contracts of slavery.”
(Dismissal Law: A Practical
Guide For Management, 1991.)
FINDING
The
court finds that the applicant’s termination of contract of employment was in
accordance with the law. There was no violation of sections 57, 58 and 61 of the
Employment Act 2000. There was also no violation of the MRA Staff Manual.
The claim for unfair termination of services must fail.
Pronounced
in open court this 2nd day of October 2002 at LIMBE.
DEPUTY CHAIRPERSON