LABOUR/ EMPLOYMENT LAW NOTES

1. INTRODUCTION

Labour Law, as the course intends to cover is a broad area which is inclusive employment law.
In the Malawian set up however the employment law part seems to be of much use than any
other areas. Our main focus shall therefore be on employment law.

2. SOURCES OF EMPLOYMENT LAW

i. Constitution

➢ Section 31 (Malote vs. Automotive Products Malawi Ltd (2008) MLLR, 452 (Section
31), (Banda vs. Lekha (2008) MLLR, 338), (Gwemba vs. Namiwawa Hotels), Matter
No. 132 of 2003, (Kachinjika vs. Portland Cement Co. (2008) MLLR, 161), Ishmael
Mtalimanja vs. MDC & Namiwawa Hotels, Matter No. 188 of 188 of 2003
➢ Section 32 as read with section 4 of the LRA
➢ Section 20 as read with section 5 of the EA (Banda vs. Lekha (2008) MLLR, 338),
David Nyangulu vs. Export Trading Co, Matter No. 514 of 2007
➢ Section 43 (Chawani vs. A.G (2008) MLLR, 1), Kachule vs ADMARC (2008) MLLR,
413), (Kachinjika vs. Portland Cement Co. (2008) MLLR, 161). However, in Ernest
Mtingwi vs. Malawi Revenue Authority, Civil Cause No. 3389 of 2004 and Malawi
Revenue Authority vs. Mpaso, Civil Cause No. 59 of 2004, Chipeta, J warned against
scotching pure employment matters on constitutional basis.
➢ Section 30 (Malote vs. Automotive Products Malawi Ltd (2008) MLLR, 452)

Specifically, by section 2(2) of the LRA, it is provided that: “This Act shall be interpreted so
as to give effect to the Constitution and the obligations of any international treaty, including
any international labour conventions entered into or ratified by Malawi.”

ii. Statutory Law

The main statutes here are Employment Act, Labour Relations Act, Occupational Safety,
Health and Welfare Act and Workers Compensation Act.

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 EA and LRA are discussed as we go along. However, serious note must be taken of the
OSA&WA especially parts III (duties and responsibilities), IV (Health and Welfare), V
(Machinery), VI (Health and Safety).

iii. Common Law

Employer has common law duty to avoid any foreseeable injury to the employee

➢ Kachiwanda vs. Eastern Produce Malawi Ltd (2008) MLLR, 183 (avoid forseeble
injury)
➢ Kapito vs. David Whitehead & Sons (Mal) Ltd, 16(2) MLR, 541 (avoid injury)
➢ Kalolo vs. National Bank of Malawi (1997)1 MLR, 421 (provide proper
appliances)
➢ Granger Nkhwazi vs. Commercial Bank of Malawi, Civil Cause No. 233 of 1999

Much of the duties under common law have however, now been codified under the
Occupational Safety, Health and Welfare Act. However, see: Mauya Msuku; “Where Do I
Stop Now? My Brothers Confuse Me as The Father Shuns the Problem: Determining the
Jurisdictional Parameters of the Industrial Relations Court” (unpublished).

iv. International treaties

By virtue of section 211, they form part of our law. See further, section 2(2) quoted above.

➢ MTL vs. Makande (2008) MLLR, 35

➢ Kachinjika vs. Portland Cement Co (2008) MLLR, 161 (ILO Convention)
➢ Granger Nkhwazi vs. Commercial Bank of Malawi, Civil Cause No. 233 of 1999
(Termination Of Employment Convention)
➢ Gladys Matiki vs. Cure International, Matter No. IRC 234 of 2004 (ILO Convention)
➢ Beseni vs. Education Dept. of Nkhoma Synod (2008) MLLR, 352

v. Equity

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Section 61(2) of the Employment Act, imports into the law of contract doctrines of equity

The section was used in Ron Manda vs. SUCOMA, Civil Cause No. 176 of 2003 and
impliedly upheld in SUCOMA vs. Ron Manda, MSCA Civil Appeal No. 7 of 2007 and in
Jawadu vs. MRA, (2008) MLLR, 397.

The court applied but refused to use the provision in National Bank of Malawi vs. Lameck
Moyo, Civil Appeal No. 18 of 2008.

Again, in most cases, the court would be called up to determine the fairness of the dismissal.
(Section 57 of the EA). Certainly, this entails application of equitable principles)

However, see: Liquidator, Import & Export Mlalawi Ltd vs. Kankhwanga & Others
(2008) MLLR, 219 and Mauya Msuku; “Where Do I Stop Now? My Brothers Confuse Me
as The Father Shuns the Problem: Determining the Jurisdictional Parameters of the
Industrial Relations Court” (unpublished).

vi. Foreign case law and statutes

These help in interpretation and fill lacunae where need be

➢ MTL vs. Makande (2008) MLLR, 35

➢ Banda vs. ADMARC (2008) MLR, 330
➢ Banda vs. Tobbacco Association of Malawi (2008) MLLR, 342

3. ENFORCEMENT MACHINARY FOR LABOUR/ EMPLOYMENT LAW

Each of the statutes listed above (EA, LRA, OSH&WA and the WCA, has its own machinery
for enforcement. For our purposes however, we shall focus on the two main statutes which are
directly to do with the employment/ labour relationships the two being EA and LRA.

3.1 Machinery for court process

This machinery my be summarised as follows:

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Labour Office- IRC- High Court- Supreme Court

i. Labour Office

By section 64(2) any person alleging violation of the Act provisions may file a complaint with
the Labour Officer who may cause prosecution of the matter. It was at some point thought that
this provision must be interpreted as being mandatory with the effect that if it was not
complied with, the matter would be dismissed. See: Sokalankhwazi vs. SUCOMA, Civil
Cause No. 3204 of 2003 and Blantyre Sports Club vs. Banda & Mkangala, Civil Cause No.
61 of 2003.

This position was changed by in the case of Lenson Mwalwanda vs Stanbic Bank, Civil
Cause No. 3256 of 2005 (point also upheld by the Supreme Court of Appeal)

ii. Industrial Relations Court

Jurisdiction

By section 110(2) of the Constitution, the IRC has original jurisdiction with “original
jurisdiction over labour disputes and such other issues relating to employment”

By section 64 of the LRA, the IRC has original jurisdiction to hear and determine “all labour
disputes and disputes assigned to it under this Act or any other written law”

Section 64 has been subject of different interpretations by the courts. In Malawi

Telecommunications Ltd vs. Malawi Posts & Telecommunications Workers Union, Civil
Cause No. 2721 of 2001, Mwaungulu, J held that the IRC does not have jurisdiction over all
labour disputes but only disputes assigned to it under the Act or any other written law.

This view was also expressed by Mkandawire, Chairperson in Fred Nkhwazi vs. Malawi
Distilleries, Matter No. IRC 50 of 2003. In the case, the court held that the IRC does not have
jurisdiction over unlawful dismissal but only unfair dismissal.

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The opinion was however, rejected by Chipeta, J in Joseph Mbizi vs. People’s Trading
Centre, Civil Cause No. 3373 of 2005.

In Liquidator, Import & Export (Mw) Ltd vs. Kankhwangwa & Others (2008) MLLR,
219 Kapanda, J emphasized on the fact that the jurisdiction of the IRC is statutory under the
LRA or any other written law and as such, the IRC does not have equitable jurisdiction since
equity is not written law.

In line with the reasoning in Kankwangwa case, the IRC has refused to award damages on
claims based on pure torts. See: Nazombe vs. Malawi Electoral Commission (2008) MLLR,
460 (damages for mental torture). For a detailed discussion, see: Mauya Msuku; “Where Do
I Stop Now? My Brothers Confuse Me as The Father Shuns the Problem: Determining
the Jurisdictional Parameters of the Industrial Relations Court” (unpublished).

There is also an opinion to the effect that where period for which reporting to the Labour
Office then eventually to the IRC has lapsed, the matter should be brought directly to the High
Court- See: Benedicto Mbewe vs. Malawi Television Limited, Civil Cause No. 1708 of 2007

Composition

By section 66 of the LRA, the IRC shall consist of the Chairperson and a Deputy Chairperson
appointed by the CJ on recommendation of the Judicial Service Commission, 5 employee
representatives and 5 employer representatives.

When sitting and determining matters of fact, the court must sit with the Chairperson or
Deputy Chairperson with one employer and one employee representative. Any decision
reached without such composition is void. See: Humphrey Mvula vs. Shire Bus Lines Ltd,
Civil Appeal No. 40 of 2007 and M. Phiri vs. Shire Bus Lines Ltd, (2008) MLLR, 259.

On the other hand, where the court is only to determine on a point of law, the chairperson or
deputy chairperson may sit alone- Section 66(2).

The Registrar of the IRC, is not a court within the meaning of the Act and as such, he cannot
issue an order. See: I. Conforzi (Tea and Tobbacco) Ltd vs. Jack Mariete, Civil Appeal No.

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9 of 2001. Neither can he preside over a hearing. See: Willy Kamoto vs. The Chairperson of
the Industrial Relations Court, Civil Cause No. 19 of 2006

iii. High Court

By section 110 of the Constitution, the High Court has unlimited original jurisdiction. This
entitles it to hear any matter as a court of original jurisdiction inclusive of the labour related
matters.

In the High Court, the opinion has been divided with one school of though advocating for the
opinion that since the High Court has original jurisdiction, it should be able to hear labour
related issues as a court of first instance and another school of thought arguing that with the
creation of the IRC, all labour related issues ought to first be brought before the IRC and only
be brought to the High Court as an appellant court.

➢ Malawi Telecommucications Limited vs. Malawi Posts and Telecommonications

Workers Union, Civil Cause No. 2721 of 2001 (for concurrent jurisdiction)-
Mwaungulu (must to read)
➢ Beatrice Mungomo vs. Brian Mungomo, Matrimonial Cause No. 6 of 1996(not IRC
but cited often- for magistrate)
➢ Mary Kaunde vs. Malawi Telecommunications Limited, Civil cause No. 687 of 2001
(for IRC first)- Kapanda, J
➢ Liquidator for Import and Export (MW) Ltd vs Kankhwangwa, (2008) MLLR, 219-
Kapanda, J
➢ Mungoni vs. Dematt, Civil Cause No. 606 of 2001 (for IRC first)- Chipeta
➢ Joseph Mbizi vs. People’s Trading Centre, Civil Cause No. 3373 of 2005 (for IRC
first)- Chipeta, J
➢ Lawson Harry Bakasi vs. Sukoma, Civil cause No. 559 of 2000 (for IRC first)-
Chipeta, J
➢ Mjojo vs. National Road Safety Council of Malawi, Civil Cause No. 383 of 2005 (for
IRC first)- Potani, J
➢ Janiel Gabriel vs. Central African Services Ltd, Civil Cause No. 2901 of 2003 (for
IRC first)- Potani, J

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An application for transfer to the IRC can be made at any time even at the trial. See: Chilemba
vs. Malawi Housing Corporation, (2008) MLLR, 136.

However, the courts will not readily grant late applications. See: Kamwendo vs. Bata Shoe
Co. Ltd, Civil Cause No. 2380 of 2003 and Felix Chimombo vs. Universal Industries, Civil
Cause No. 1525 of 2006.

All in all, the hope here is for the Supreme Court of Appeal to issue some guidelines on the
matter. As Chipeta, J stated in Bakasi vs. Sugar Corporation of Malawi (2008) MLLR, 112
at 115:
“I have actually held lately in Paul Chimenya vs. Old Mutual Life Assurance Co (mw)
Ltd Civil Cause No. 2559 of 2002 (unreported) that what we probably need now is some
decisive authority from the Supreme Court of Appeal to settle the question of what
practice to finally adopt once and for all in this regard. In the present case the issue of
jurisdiction not having featured in any way, until this stage when I am mentioning it in
the ruling, I will let sleeping dogs lie. Suffice to say that under section 108(1) of the
Constitution I have full jurisdiction to tackle the matter at hand, even though
coincidentally the Industrial Relations Court could equally have handled it.”

The High Court has however, appellant jurisdiction over the IRC. This appellant jurisdiction is
again however, limited to points of law and/ or jurisdiction. Otherwise, on matters of fact, the
decision of the IRC is final- See: Section 65 of the LRA, Elton Magalasi vs. National Bank
of Malawi (2008) MLLR, 45 (SCA), Civil Appeal No. 13 of 2005 (HC), Malawi Revenue
Authority vs. Malizani (2008) MLLR, 243 and National Bank of Malawi vs. Zefaniya
(2008) MLLR, 247 (must)

iv. The Malawi Supreme Court of Appeal

This only sits as an appellant court on appeal from the High Court. Its jurisdiction is governed
by the Supreme Court of Appeal Act.

3.2 Non- court process machinery

This is discussed later in the court under the topic of dispute resolution.

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4. LEGAL REGULATION OF INDIVIDULA EMPLOYMENT: UNDERSTANDING
THE EMPLOYER/ EMPLOYEE RELATIONSHIP

3.1 Formation of the contract

It has to be noted that employment contract is just a type of a contract and that generally, the
rules governing contract law equally apply. General rules of offer, acceptance, consideration
and intention to create legal relations therefore apply. In Council for the University of
Malawi vs. Urban Mkandawire (Male) Civil Appeal No. 569/00, the Supreme Court stated:

“We think it is pertinent to say here that it is important to always remember that the
general principles of the law of contract apply to contracts of employment. And that it is
also important to always remember that one of such principles is that the law of contract
is concerned only with legal obligations as agreed by the parties themselves and not with
any other expectations however reasonable they might be; this principle was also alluded
to by this court in the case of Dr. BS Chawani V. The Attorney General, M.S.C.A Civil
Appeal No. 18 of 2000 [Unreported].”

In Dickiel Kusainda vs. Petroleum Importers of Malawi, Matter No. IRC 187 of 2007, the
Court stated:

“Any contract of employment is governed by the general law of contract which

recognises the parties’ right to freedom of contract. The Supreme Court in the case of
Council of the University of Malawi vs. Urban Mkandawire MSCA Civil Appeal No 38 of
2003 acknowledged this fact by holding that the law is concerned only with legal
obligations agreed by the parties themselves and nothing else no matter how reasonable
such expectations could be.”

The passing of the Employment Act has however, brought in a new dimension to the formation
of employment contract. What comes out of section 2 of the Act is that there is no need for any
formality in the formation of employment contract. Under the section, an employee is defined
as:

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 a) “a person who offers his services under an oral or written contract of employment,
whether express or implied
b) any person, including a tenant share cropper, who performs work or services for
another person for remuneration or reward on such terms and conditions that he is in
relation to that person in a position of economic dependence on, and under an
obligation to perform duties for, that person more closely resembling the relationship
of employee than that of an independent contractor.”

On the other hand, an employer is defined as a person who employs an employee. See:
Kandoje vs. Malawi Housing Corporation (2008) MLLR, 433

From the definition, it comes out clear that no formalities are required to create the employer/
employee relationship as the same can be implied from the conduct of the parties. This
provision was ably applied in Chiwembu & Others vs. Dairiboard (Malawi) Ltd (2008)
MLLR, 145, Simango vs. Blantyre Newspapers Ltd (2008) MLLR, 488, Chisowa vs.
Ibrahim Cash ‘n’ Carry (2008) MLLR, 385 and Benedicto Mbewe vs. Malawi Television
Limited, Civil Cause No. 1708 of 2007 wherein a consent judgement was entered on the
strength of the provision.

Again, even where the contract is express, the same may be written or oral- Limbe Leaf
Tobacco vs. Chikwawa & Others (1996) MLR, 480, Manda & Others vs. City of Blantyre,
15 MLR, 228.

4.2 Determining the existence of employment/ employer relationship

Before the employer/ employee rights and obligations can accrue to any of the parties, it must
be determined that there is in fact an employer/ employee relationship. This is even vital
considering that by definition of an employee under section 3 of the EA, an employee excludes
an independent contractor. The court must therefore determine as to whether it is dealing with
an employee or an independent contractor.

To determine this, the court will look at a number of tests.

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The first test is the terms of the contract itself. If the terms are such that they establish the
employee/ employee relationship and not otherwise, the relationship would have been
established. See: Urban Mkandawire vs. University Council (supra). This test would
however only apply in expressly created employment contracts. For implied contracts and even
for express contracts where the relationship is not clear, the courts have used various tests
which have also been used in other areas of the law:

i) Dependence.

This is even more highlighted in section 3 itself. If a person is economically dependent on the
other, he will be deemed an employee. See: Chisowa vs. Ibrahim Cash ‘n’ Carry (2008)
MLLR, 385

ii) Control

If the master has more control on the operation of the service provider, the service provider
will be deemed an employee. In Nchizi vs. Registered Trustees of the SDA Association of
Malawi, 13 MLR, 303, Banda, J (as he was then) stated at 307:

“… whether a contract (was one) of employment …. depended on whether there was or

there wasn’t a right of the master to superintend or control the manner in which the work
was done.”

See also: Simango vs. Blantyre Newspapers Ltd (2008) MLLR, 488 and Ready Mixed
Concrete Ltd vs. Minister of Pensions & National Insurance (1968) 2 QB 497

iii. Integration

Where the service provider is integrated into the master’s system, he will be deemed an
employee. See: Simango vs. Blantyre Newspapers Ltd (2008) MLLR, 488 and Bank voor
en Scheep NV vs. Slatford (1953)1 QB 248

v. The economic reality test

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The test here is who takes the risk or benefit of the service i.e. on whose account are the
services being rendered. The major test here is would be benefit change with change in loss or
profit? Another factor here is what kind of tax is payable. Is it PAYE or tax payable on profits?
See: Simango vs. Blantyre Newspapers Ltd (2008) MLLR, 488 and Nchizi vs. Registered
Trustees of the SDA Association of Malawi (supra)

NB: For detailed discussion, see Chilumpha, Labour Law.

4.3 Types of employment contracts

By section 25(2) of the EA, an employment contract may take any of the three types namely;
(i) contract for unspecified period of time (ii) contract for specified period of time and (iii)
contract for a specific period.

The implications for each of the types shall be considered latter when considering termination
of contract.

5. TERMS OF EMPLOYMENT

1. Express terms

As earlier on hinted, an employment contract is concerned with what the parties themselves
have agreed. The rights and obligations of the parties to the contract will therefore be
determined by looking at the terms of the contract itself. A party will not the entitled to any
right simply because it is reasonable if the same was not agreed.

In Council for the University of Malawi vs. Urban Mkandawire (Male) C/C No. 569/00,
the Supreme Court stated:

“We think it is pertinent to say here that it is important to always remember that the
general principles of the law of contract apply to contracts of employment. And that it
is also important to always remember that one of such principles is that the law of
contract is concerned only with legal obligations as agreed by the parties themselves
and not with any other expectations however reasonable they might be; this principle

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 was also alluded to by this court in the case of Dr. BS Chawani V. The Attorney
General, M.S.C.A Civil Appeal No. 18 of 2000 [Unreported]. There is also the case of
Hill –vs- V.C.A. Parsons and Company Limited [1972] Ch. 309 for the legal
authority to the effect that an employee who is wrongfully dismissed cannot be granted
damages for loss of expected benefits to which he had no contractual right. And
referring to the case at hand, it does not seem to us that it was any of the concern of the
Court below whether the respondent had been accorded an opportunity to be heard
before the termination of the employment because that was not a term or condition in
the contract. The concern of the Court was only whether or not the termination was in
accordance with the contract, or, put differently, whether it can be said that the
appellant’s act of terminating the employment was in breach of the contract.”

Again in Chikoja vs. The Southern Region Water Board, Misc. Civil Cause No. 47 of 2003
In an action for unfair dismissal, Chimasula Phiri, J, stated:

“Employment should not be taken as a lifetime engagement. It is a contract and as

every contract has got terms. One cries foul where such terms have been breached and
not otherwise. An expectation is not a contractual term unless expressly incorporated
in the contract”

In Air Malawi Limited vs. James Isaac Kanjero & Dennis Jacob Kuchawo, Civil Appeal
Number 40 of 2004, the Appellant company, in its restructuring exercise, laid off some of its
employees and did so in accordance with its terms of employment. In an action for unfair
dismissal by the employees, the lower court found for the employees. When the matter went
for the appeal the High Court reversed the decision on the grounds inter alia that the employer
having acted in accordance with the terms of employment, an action for unfair dismissal could
no arise. Manyungwa, J stated:

“The terms governing the rights and obligations of the parties to a contract of
employment are a matter of private law especially where the case involves parties like in
the instant case. Therefore the rules governing issues such as termination of employment
are to be found in contract of employment itself”

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Terms of contract may be express or implied. Just as in case of general law of contract, terms
may be implied by law, custom or to give efficacy to the agreement.

Where there are express terms, the duty of the court is to ascertain those terms and enforce
them. The court will not impose an obligation simply because it is reasonable. Urban
Mkandawire and Chikoja Cases. In Felix kalowekamo vs. Malawi Envirinmental
Endowment Trust, MSCA Civil Appeal No. 28 of 2005, the Supreme Court of Appeal
stated:

“None of the parties to the action called upon the Learned Chairperson to employ section
28(3) in construing the appellant’s contract of employment, because no one was in doubt
about the meaning of the contract. None of the parties to the contract entertained any
thought that the appellant’s contract was a mere sham. We do not think that the section
gives licence to a court to reject the clear terms of a contract, rewrite it and in the
process suppress the clear intentions of the parties to a contract.”

What comes out of the authorities is that the role of the court is to ascertain the intention of the
parties and enforce it.

Express terms of the contract may however be written or oral. The problem arises in cases of
oral terms as the issue becomes evidential. In such cases, the court will adduce terms of the
same basing on the evidence available. See: Benedicto Mbewe vs. Malawi Television
Limited, Civil Cause No. 1708 of 2007.

By section 27 of the EA it is the duty of the employer to put employment particulars in

writing. For this, the courts more readily imply terms in favour of an employee in cases of
discrepancies in evidence. See: Chinyama & Others vs. Kameko Technologies Ltd, Matter
No. IRC 175 of 2008

Terms of employment may also be contained in the employer’s conditions of service which
may apply to every employee. See: Lapukeni vs. Commercial Bank of Malawi (1996) MLR,
139. Just from the general law of contract however, such terms will not bind the employee
unless they are brought to his attention contract being a consensual thing.

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Further, a contract being consensual, once the terms have been agreed upon, an employer
cannot unilaterally vary them without the consent or at least consulting the employee. The
employer may however, alter minor tasks assigned to the employee. See: Dickiel Kusainda vs.
Petroleum Importers of Malawi, Matter No. IRC 187 of 2007, Nazombe vs. Malawi
Electoral Commission (2008) MLLR, 460, Banda vs. Dimon (Malawi) Limited (2008)
MLLR, 92 and Chimkondenji vs. Malawi Stock Exchange Ltd (2008)MLLR, 379

However, where variation is done and the employee accepts the variations, he shall be bound
by the same. See: Dickiel Kusainda vs. Petroleum Importers Ltd (supra) and Mbewe vs.
Admarc, 16(2) MLR, 594. But until accepted by the employee, the variation does not bind
him. Acceptance may again be express or implied. For this, the employer has constant
obligation to inform employees of any variations- Elsauko & Others vs. Malawi Railways
Ltd (1997)2 MLR, 232.

2. Implied terms

Terms may be implied by principles of common law, by statutory law and by collective
agreements.

(a)At common law, the principles governing implied terms are the same as in the general law
of contract. For this, the courts will imply a term where i) the same is necessary to give
efficacy to the transaction ii) to fill a clear gap i.e. complete an otherwise incomplete contract
(the two may be argued as one) iii) by custom and iv) the term would emanate from the very
relationship between the parties- Hahn vs. Spearhead Holdings Ltd & Others, 13 MLR, 143
(a must to read). In the case, Unyolo, J stated at 149-50:

“As a general matter, it is to be noted as was observed in Re Comptoir Commercial

Anversois & Power, Son & Co (1920)1 KB 868 the implication of a term is a matter of
law for the court, and whether or not a term is to be implied usually depends upon the
intention of the parties as gathered from the language of the agreement and the
surrounding circumstances. The court will therefore be prepared to imply a term if this
arises from the words of the contra t itself and the circumstances under which it was
entered into. Also, as was observed in the Moorrock (1889)14PD 64, a term will be
implied if it is necessary, in the business sense, to give efficacy to the contract. Further a

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 term will be implied if such term was so obviously a stipulation in the agreement that it
was naïve to express it specifically by words. Gardner vs. Moore (1969)1 QBD 55. There
are several other situations where a term could properly be implied in a contract. And on
the negative side, a term will not be implied merely because the court thinks it would be
reasonable to have inserted it in the contract. See Reigate vs. Union Manufacturing Co.
Ltd (1918)1 KB 592.”

When it comes to business efficacy, the guiding principle is that as stated by Mac Kinnon LJ in
Reigate vs. Union Manufacturing Co (Ramsbottom) (1918)1KB 592 that if a bystander was
to asked whether a terms should be included, both parties would answer with a common ‘oh of
course’. One of the duties under this head may include the duty on the employer to provide
safe working environment for the employee which includes provision of safety appliances. See:
Kapito vs. David Whitehead & Sons (Mal) Ltd, 16(2) MLR, 541 and Kalolo vs. National
Bank of Malawi (1997)1 MLR, 421

On custom and conventions see: Sagar vs. Ridehalg & Sons Ltd (1931)Ch 310

On relationship see: Lord Denning MR in Shell UK Ltd vs. Lostock Garage Ltd (1977)1
ALL ER, 481. The duties implied under this head may include duty of confidentiality,
obedience to lawful orders etc.

c) Under the terms implied by statutory law, the major statutes here are the EA, LRA,
OHS&WA and WCA

The EA sets various minimum standards for employment such as working hours, notice period,
non- discrimination etc. The LRA on the other hand guarantees an employee various rights
such as the right to associate, join trade unions etc whilst the OHS&WA imposes minimum
standards for the safety of the employees at a work place.

These rights and obligations shall be considered in details latter.

It has to be noted that any terms of employment contract which contravenes written law is void
and unenforceable. This includes contravention of the constitution. See: Blantyre Netting Co.

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vs. Chidzulo & Others (1996) MLR, 1 and Mwanamanga vs. Malamulo Mission Hospital
(2008) MLLR, 457

d) Terms may also be implied from collective agreements between employers and
employees- See Section 33 of the LRA. A detailed discussion on the effect of collective
agreements is done later.

6. IMPLIED OBLIGATIONS/ RIGHTS OF THE PARTIES TO AN EMPLOYMENT

CONTRACT

As earlier on discussed, the law will for different reasons imply terms into an employment
contract. One group of terms the court will imply are those terms which are just but residual to
the existence of the employment contract. These are terms which form a foundation for the
employment contract that there would be no need to expressly state them. A good example
would be a term requiring a professional to display such skills that are expected of a reasonably
qualified professional.

Such terms create obligations and inevitably corresponding rights on the parties. It is these
terms (rights and obligations) that this part is concerned with.

6.1 Employer’s obligations

(a) Duty to pay remuneration

The very existence of employment contract, entails provision of services in exchange of

payment of remuneration- see definition of an employee under section 3 of the EA.

There is therefore an implied obligation on the part of the employer to pay an employee his
wages in exchange of his services.

It has been held that an employer is under obligation to pay an employee even where an
employee is just staying due to want of work as long as the employment relationship continues.
See: Nyasulu vs. National Oil Industry Ltd, 12 MLR, 103. An employee will still be paid

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even where he is temporarily absent from work on justifiable grounds. See: Hartwell vs.
Central African Transport Co., 1 ALR (Mal), 29 and Banda vs. Cilcon Ltd, 14 MLR, 21.
The employer is not however, under obligation to pay an employee who has absented himself
without permission and without reasonable cause. Arguably, before an employee can withhold
payment, he first needs to conduct a hearing against the concerned employee as this is like a
punishment.

Chilumpha, Labour Law again argues that where an employee is on suspension, he loses his
right to remuneration. This however, seems a doubtful position as the courts have already
adjudicated that a term of suspension without pay cannot be implied and would only apply if
expressly provided for in the contract. See: Kakande vs. Beta Ltd, 16(1) MLR 143 and
Maonga & Others vs. Blantyre Print & Publishing Co. Ltd, 14 MLR, 240. This position
may further be supported on the basis that suspension may be argued to be temporal justifiable
absence. Further, since most suspensions are done without hearing pending further
investigations, it would be doubtful if the law would allow imposition of such sanction without
a concerned party being heard- See: Kamkosi vs. Office of the Ombudsman (2008) MLLR,
418.

Though an employee is entitled to his remuneration, the amount and mode of payment are
subject to a few statutory provisions, a matter of agreement between the parties. However,
since as discussed earlier on, an employment contract may be implied, where the parties have
not agreed on remuneration, the court may be called upon to imply the same from the
circumstances of the case. See: Benedicto Mbewe vs. Malawi Television Limited, Civil
Cause No. 1708 of 2007.

(b) Provision of work

As a general rule, an employer is under no obligation to give work to an employee. An

employer discharges his obligations by paying the employee. In Dickiel Kusainda vs.
Petroleum Importers Ltd, Matter No. 187 of 2007, the Court stated:

“Generally speaking unless the same is expressly provided for in the contract agreement,
an employer is not obliged to provide work for his employee. An employer fulfils his

17
 obligation to the employee under the contract of employment by merely paying the
employee’s remuneration.”

In some instances however, the employer may be obliged to provide work to the employee. For
instance, where the earning of remuneration is conditional on the availability of work e.g.
where an employee is employed to perform a specific task or where he is on commission basis-
Devonald vs. Rosser & Sons Ltd (1906) 2KB 728. Again an employer will be under
obligation to provide work where he deals with a skilled employee requiring constant
maintenance of the skill e.g. an actor- Turner vs. Sawdon (1901)2 KB 653. Again and
connected to the first one, an employer will be under obligation to provide work where an
employee is employed to fill a specific post with specific requirements. (otherwise the
employee may be declared redundant)- Collier vs. Sunday Referee Publishing Co. Ltd
(1940) 4 ALL ER, 234.

© Safety at work

An employer is under obligation to provide and maintain a safe working environment. This
includes the environment itself, plant and machinery, working systems health and safety
appliances. See: Nchizi vs. Registered Trustees of the SDA Association of Malawi, 13
MLR, 303 (a must to read).

In Kalolo vs. National Bank of Malawi (1997)1 MLR, 421 at 430, Chimasula Phiri, J quoted
with approval the following statement by Lord Herschell in Smith v Baker & Sons (1891)AC
325:

“It is quite clear that the contract between employer and employed involves on the part
of the former the duty of taking reasonable care to provide proper appliances, and to
maintain them in a proper condition, and so to carry on his operations as not to subject
those employed by him to unnecessary risk.”

The employers duty under this head, is based on the general law of negligence. The employer’s
liability therefore will depend on all the elements as required under the law of negligence.
Since negligence is factual, there can be no exhaustive list of things expected on the part of the

18
employer. It all depends on the facts of a particular case. (the instances discussed by
Chilumpha thefore, should not be regarded as exhaustive).

In Kapito vs. David Whitehead & Sons (Mal) Ltd, 16(2) MLR, 541, Mkandawire, J stated at
544:

“I now move on to negligence. The employer’s duty to his employees was stated in the
case of Treiman v Pike (1969)3 All ER 1304 where, at 307, Payne J, said as follows:

‘The employer’s duty to his servants is to take reasonable care for their safety
and this safety extends to the safety of the premises and the plant and to the
conduct of the work but is not restricted to those matters. Put in slightly
different words his duty is to take reasonable steps to avoid exposing his
servants to reasonably foreseeable risk or injury.”

The employer will not again therefore be liable if he does that which a reasonable employer
would have done- Tabord vs. David Whitehead & Sons (Malawi) Ltd, 12 MLR, 125

NB: This duty is now more regulated under the OSH&WA. However, as provided under the
Act, where negligence is proved, proceedings can still be brought under common law.

(d) Duty of good faith

This duty entails that en employer should not act towards an employee in such a way that
would erode the employee’s trust and confidence in him- Imperial Group Pension Trust vs.
Imperial Tobacco Ltd (1991)2 ALL ER, 597. (As will be seen, this duty is reciprocal).

In essence, this duty prohibits unreasonable conduct on the part of the employer which conduct
an employee would not ordinarily be expected to take. In Banda vs. Dimon (Malawi) Limited
(2008) MLLR, 92, Ndovi, J stated at 100:

“There is also an implied term of the contract of employment that the employers will not
behave in a way which is not in accordance with good industrial practice to such an

19
 extent that the situation is intolerable or is such that an employee cannot be expected to
put up with any longer …”

Such practice may include discrimination and variation of terms of contact (Banda vs. Dimon
(Mlw) Ltd, supra) and demotion (See: Nazombe vs. Malawi Electoral Commission (2008)
MLLR, 460). See also: Kamkosi vs. Office of the Ombudsman (2008) MLLR, 418 (boss;
ombudsman inviting secretary for dinner)

(e) Protection of privacy

An employer will normally solicit as much information from an employee. This necessitates
the need for the employer to treat such information with confidence and not to disclose it to the
public. This duty seems now to be more enforceable under the constitution as the courts have
emphasized on the need to uphold human rights even in labour related issues- See: Ntaba vs.
Continental Discount House (2008) MLLR, 472 (boss inviting employee to the lake).

6.2 Employee’s implied obligations

(a) Duty to display professed skills

Where an employee is employed on the basis of the skills he professes to have, there is an
obligation on him to display those skills- See: Kondowe vs. Christian Service Committee of
Churches in Malawi, 10MLR, 94.

The test for the standard of skill expected of any employee is the same as the one used in tort
i.e. that of an ordinary professional in his field. As such, ordinary errors will not suffice- See:
Magaleta vs. Savjani & Company, 15MLR, 213 cf Milanzi vs. Attorney General, 15MLR,
262

In fact, want of such duty, entitles the employer to dismiss the employee summarily- Section
59(1)© of the EA.

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(b) Duty to obey employer’s orders

The employer/ employee relationship entails a master/ servant relationship. Though in most
cases the employment contract may spell out the nature of the job to be done by the employee,
it may mostly leave the ‘how’ part to the employer’s instructions. Again, sometimes, the
contract itself may spell out that jobs may be assigned from time to time. Further, as discussed
earlier on, control is one of the tests to determine employer/ employee relationship.

All these entail that from time to time, the employer may give instructions on what and how it
should be done. The employee is therefore under obligation to bay any reasonable and lawful
instructions from the employer. Failure to do so is what has also been termed insubordination
and entitled an employer to summarily dismiss the employee- Section 59(1)(e) of the EA,
Magalasi vs. National Bank of Malawi Limited (2008) MLLR, 45 (SCA).

However, for failure to obey orders to amount to misconduct, two things (which may in
essence be one) must be satisfied. First, the orders must be within job description- Ntaba vs.
Continental Discount House (2008) MLLR, 472 (boss asking her to accompany her to the
lake over the week-end), Gladys Matiki vs. Cure International, Matter No. IRC 234 of
2004 (secretary not attending a party).

Further, the orders must be reasonable and lawful- Sam Nthini vs. Energem Petroleum
Limited, Matter No. PR 513 of 2007, Magalasi vs. National Bank of Malawi Limited
(supra)- a must to read.

© Duty to preserve mutual confidence and trust

Employment relationship entails mutual trust and confidence between the parties. An
employee, just like an employer, is under obligation to preserve this. In fact, it has been held
that an employer is entitled to dismiss an employee where his conduct is such that there can be

21
no continued trust and confidence between the two. The most often cited statement here is the
statement on Sachs LJ in Sincliair vs. Neighbour (1962)2 QB 279 where at 289 he stated:

“It is well established law that a servant can be instantly dismissed when his conduct is
such that it not only amounts to a wrongful act inconsistent with his duty towards his
master but is also inconsistent with the continuance of confidence between them”

In Kettie Mukamba vs. Malawi Revenue Authority, Matter No. IRC 101 of 2008, the
Court stated:

“One of the mutual implied term of the contract of employment is preservation of mutual
trust and confidence. Thus both the employer and the employee are prevented from
conducting themselves in such a manner that breaches this duty.”

See also: Nyirenda vs. Lujeri Tea Estate Ltd, 10 MLR, 368, Lapukeni vs. Commercial
Bank of Malawi (1996) MLR, 139 and Chiwindo vs. Stagecoach Malawi Ltd (1997)1
MLR, 457

(d) Duty to act reasonably

Further an employee is under duty to act reasonably towards his employment. This duty entails
acting with reasonable judgement to avoid loss to the employer and damage to his property-
Secretary of the State for Employment vs. ASLEF (1972) 2 QB 455 and Hahn vs.
Spearhead Holdings Ltd, 13 MLR, 143 (take care of employer’s prop).

(e) Duty to account

An employee is under duty to account to his employer for all the property (money inclusive)
that comes into his possession by virtue of his employment. This duty also entails that an

22
employee is not entitled to put his employer’s property to his personal use without the
employer’s authority- Kajumo vs. People’s Trading Centre, 9 MLR, 123 and Sinclair vs.
Neighbour (1967)2 QB 279

(f) Duty of fidelity towards the employer

This duty of fidelity has three heads.

The first is that the employee should not carry on business in competition with his employer or
work for the employer’s competitors- See: Sales Services Ltd vs. Renshaw, 16(2) MLR, 765
(employee bidding for tyre supply when his employer in the same business).

The second part is that the employee should not obtain secret benefits from his employment
whatever form of the benefit- Kadammanja vs. ADMARC (1987-89)MLR, 197 and
Nzangaya vs. Unitrast (Mw) Ltd, Matter No. IRC 32 of 2003 (carrying unauthorised
passengers)

The last one is that an employee should not use the in formation or knowledge obtained in the
course of his employment to his own benefit and to the detriment of his employer e.g. in
inventions- British Syphon Co. Ltd vs. Homeword (1956)1 WLR, 1190

In essence and in a summary this duty entails that an employee is in a fiduciary relationship to
his employer. As such, he is not supposed to breach such duty and if he does, he must account
to the employer for all the benefit he has made to which the employer is entitled- Sales
Services Ltd vs. Renshaw, 16(2) MLR, 765 (a must to read).

(g) Duty of confidentiality

An employee is under a duty not to disclose the employer’s business secrets- British
Industrial Plastics Ltd vs. Ferguson (1940) ALL ER, 479 (for details, read Chilumpha)

23
(h) Duty to comply with the law

There is also an implied duty on the part of the employee that in the course of the discharge of
his duties towards the employer, he will comply with the laws. Breach of this duty entitles the
employer to terminate the employment relationship as it exposes the employer to actions-
Magalasi vs. National bank of Malawi Limited, Matter No. IRC 288 of 2003. In the case,
the Court stated:

“Traffic laws form part of the laws of Malawi. Any employment contract must adhere to
national laws. No employer would knowingly allow his employees to break national laws.
The employer need not even indicate in the employment contract that employees must not
break national laws, because this is implied.”

7. STATUTORY IMPLIED RIGHTS AND OBLIGATIONS

Knowing the unequal bargaining power between the employer and the employee, statutory law
has come in to protect the employee by imposing on the employer some obligations to ensure
minimum standards to be complied with in every employment contract. This part therefore
largely looks at these obligations which are mostly imposed on the employer. The major
sources of these statutory obligations are the Constitution, The EA, the LRA and the
OSH&WA.

As earlier on discussed, any term of employment contract which infringes on these statutory
provisions is void- Blantyre Netting Co. vs. Chidzulo & Others (1996) MLR, 1 and
Mwanamanga vs. Malamulo Mission Hospital (2008) MLLR, 457. See also section 2(3) of
the LRA

A. Duties under the Constitutions & under the EA

1. Fair Labour Practices

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By section 31 of the Constitutions, every person has a right to fair labour practices. The
constitution however, does not define what amounts to fair labour practices. See: Kachinjika
vs. Portland Cement Co (2008)MLLR, 161 (HC) and Liquidator, Import & Export (Mw)
Ltd vs. Kankhwangwa & Others (2008) MLLR, 219. It has however been held that fair
labour practices entail reasonable, fair and even handed practices by an employer towards
employee. In Gwemba vs. Namiwawa Hotels, Matter No. 132 of 2003, the Court stated:

“S. 31 of the Constitution entitles the employee to a right to fair labour practices. Fair
labour practices have not been defined in our laws. But surely they constitute fair,
reasonable and even- handed practices by the employer towards the employees”

One cannot therefore outline an exhaustive list of what may be included within the scope of
fair labour practices as the expression may apply to and include wide range of issues within
employment relations. In Chilala and Others vs. Petroleum Service (Mw) Ltd, Matter No.
IRC 158 of 2000, the court stated:

“The term ‘unfair labour practices’ includes a wide range of issues. For example, unfair
conduct by the employer relating to promotion, demotion or training of an employee or
provision of benefits to an employee”

Other issues in which unfair labour practices have been invoked include unjustifiable transfer-
Jana vs. Attorney General (2008) MLLR, 391, repatriation- Kankhwangwa vs. Liquidator
(Import & Export) (Mw) Ltd (2008) MLLR, 26, Fair remuneration- Banda vs. Dimon
(Mw) Ltd (2008) MLLR, 92, termination- Kachinjika vs. Portland Cement Company
(2008) MLLR, 161 etc.

What is clear however is that no exhaustive list can be given of what amounts to unfair labour
practices. It is the duty of the court to determine on the facts of a particular case whether there
was unfair labour practice. In Kachinjika vs. Portland Cement Co (2008)MLLR, 161,
Chikopa, J stated at 172:

25
 “Whereas we generally agree that neither the Constitution nor the Labour Relations Act
define what fair labour practices are, we think that courts should where possible not
refrain from expressing an opinion on whether or not a particular practice in a
particular set of circumstances amounted to fair or unfair labour practices.”

It has to be noted that a practice does not cease to be unfair simply because it is in accordance
with the law or in accordance with the employment contract. The practice may so be in
accordance with the law but still be unfair. In S. Kalinda vs. Limbe Leaf Tobbacco Limited,
Civil Cause No. 542 of 1995, Mwaungulu, J stated:

“Acting fairly means more than acting according to the law. The employer’s
action, even if lawful, could be contrary to fair labour practice. This Court has
jurisdiction to test any practice for compliance with the Constitution and the
human right regime under the Constitution and international human right law,
could nevertheless succeed under section 31 where, for example, apart from
contractual obligations, the employer terminates without giving the employer a
fair opportunity of being heard or giving his explanation or putting his case.
The employer is liable to the extent that she never acted fairly and congruous to
fair labour practise. This rule is more applicable to matters after 1994 and
before the Employment Act introduced the statutory remedy of unfair dismissal.
After this Act, an employee who loses a wrongful dismissal auction could
nevertheless succeed in an unfair dismissal action. The rule is however the more
important where, in my judgment, an employer, in accordance will the contract,
terminates with notice to suppress fairness considerations. Even without the
Employment Act, the right to fair labour practice in the Constitution comports,
fairness, in determinations of employment. Even a lawful termination be
questioned for fairness. Consequently, a lawful dismissal questioned under
Constitution for fairness.”

Again in Kachinjika vs. Portland Cement Company (2008) MLLR, 161, Chikopa, J stated
at 172 (a must to read):

26
 “The duty of the courts in the new constitutional dispensation therefore is to look not
only at the dry letter of the contract of employment and ask themselves whether or not the
terms thereof had been breached or not but also whether looked at in its totality the
employer’s treatment of the employee was fair or not. What however amounted to fair
labour practice or not was, at least at the time of the 1994 Constitution coming into
effect, to be left to the tribunal dealing with the matter to decide guided by the
Constitution itself and where possible international practice.

Since neither the Constitution nor the LRA has defined fair labour practices, the courts take
guidance from international practice such as international instruments (ILO inclusive)-
Kachinjika vs. Portland Cement Company (supra) and comparable foreign case law-
Liquidator, Import & Export (Mw) Ltd vs. Kankhwangwa & Others (2008) MLLR,
219. See also section 2(2) of the LRA

Finally, it has to be noted that the right to fair labour practices is not exclusively for the
employees but it equally accrues to the employers. Again, the right is not restricted to
natural persons but it extends to legal persons. See: Dickiel Kusainda vs. Petroleum
Importers Limited, Matter No. 187 of 2007.

2. Probation

By section 26(1) of the EA the parties may in respect of a skilled worker, agree on the duration
of the probationary period. A skilled worker is defines in section 26(3).

Of importance however, is the fact that by the provisio to section 26(1), the probationary
period can not in any event exceed twelve months.

A number of issues (others debatable) arise from the wording of the provision.

The first is that the provision only applies to skilled workers. One fails to appreciate the
rationale behind this. Certainly, it may not only be skilled workers that may need

27
monitoring for a particular job. Even the non- skilled may need observation on whether they
are fit for a particular job. The argument in support of the provision may however be that
skilled workers need observation on whether they indeed have the professed skills. This
argument may however fail because it presupposes that it is only working skill that would
need assessment by the employer. Certainly, even general conduct may need assessment and
hence, the restriction does seem justifiable considering again that by section 57, conduct
may lead to dismissal.

The second issue is whether the provision allows any party especially the employer to
terminate the contract for no reason. Chilumpha, Labour Law seems to be arguing in those
lines as he argues that the effect of the provision is to disentitle an employee of the rights
under section 57. This however, seems to be a doubtful position in view of the case of
Sheha vs. Malawi Revenue Authority, IRC Matter No. 113 of 2002 also cited therein to
the effect that where termination is on the grounds of the employee’s capacity and conduct,
then the employee must be heard.

This is further doubtful when one considers the fact that an employee has a right to fair
labour practices which include right to be given reasons for any decision affecting his
legitimate rights and expectations- Chawani vs. Attorney General (2008) MLLR, 1.

Our opinion is that the provision does not entitle the employer to terminate a contract for no
reason but that where a reason exists the contract can be terminated without notice.
Otherwise, it would be strange to require the employer to hear the employee in cases of
capacity and conduct when he is in fact entitled to terminate for no reason.

Further, the argument that an employer can terminate without reasons may defeat the
purpose of the provision since some employers may put an employee on a twelve month
probation, before the end of the probation period terminate the contract, re- engage the
employee for another 12 month probation period, terminate the contract, re-engage the
employee and on and on.

Another possible issue under the provision is whether it would be permissible for an
employer to engage an employee on a 12 month probation period, then at the end declare
him unsuccessful and ask him to leave, then re-engage him, put him on another 12 month

28
 probation, declare him unsuccessful and ask him to leave, re-engage him and so on and so
on.

Another practical problem that has arisen with the provision is whether upon completion of
the probationary period, whether the employee need to wait for formal confirmation, or the
same is presumed if he is allowed to work. If so, what is the reasonable period within which
the presumption can arise.

3. Wages

As to how much and when an employee is to get as his wages, is a matter to be agreed by the
parties- section 50(1) of the EA.

However, the provisio to section 50(1) and section 50(2) limits intervals at which wages can be
paid.

Further, section 50(3) restricts on how wages can be paid. Sub- section 5 prohibits payments by
liquor or noxious drugs.

Chilumpha, Labour Law argues that since the provision only talks of payment to be in legal
tender without specifying currency, it means it can be paid in foreign currency. This however
can no longer be the position in view of the Exchange Control (Use of Foreign Currency in
Local Transactions) Regulations, 2006. Regulation 2 of the said Regulations provides:

“Except with the permission of the Minister, no person shall quote or accept quotation of
prices for payment in foreign currency; or demand or make payment in foreign currency for
goods or services sold or provided in Malawi”

By Regulation 3 of the said Regulations such a conduct is a criminal offence punishable by a

fine of K100, 000.00 and 2 years imprisonment.

4. Working days/ hours

29
The working hours for an employee are an issue of agreement between the parties- Section
36(1).

However, the provisions of section 36, limit the number of working days in a week.

Further, section 37 limits number of hours per day.

5. Overtime

This is regulated by section39. However, the provision seems a bit confusing when read with
uhnthe guards provision under the provisio to section 36(3)

Section 39 talks of at least 1 ½ whilst for guards, it is half basic salary. Isn’t this
discriminatory?

Further, the provisio to section 36(3) is a bit ambiguous in that is it ½ basic salary as calculated
pay day or monthly? Is the computation per hour or for all the worked hours?

6. Leave

This is regulated by sections 44 and 45.

Of more interest however, is that from the wording of the provision, it doesn’t seem to be
mandatory for an employee to go on annual leave. He is only “entitled”. This doesn’t mean that
he must in fact go on leave. This is in sharp contract with provisions such as section 36 which
are in mandatory terms.

7. Sick leave

This is regulated by section 46.

Of interest however is section 46(3) which is to the effect that an employer is not bound to
grant sick leave unless an employee produces a certificate. What this means is that the
employee must in fact have fallen sick. In other words, sick leave can only be granted if the
employee in fact falls sick.

This is interesting if one reads it with section 46(1) which seems to suggest that sick leave is
only available upon an employee completing at least a year. This seems to be a bizire
provision. Does one have to wait until he completes a year to fall sick? What happens where he

30
falls sick before completing the stipulated period? Does it mean he can not go on leave despite
the sickness or does he go on unpaid leave? What would be the rationale for such a provision?

8. Maternity leave and freedom of association (under EA & LRA)

This is regulated by section 47. See Chilumpha for details. For our purposes, it will be
discussed under separate topics.

B. Duties under the OSH&WA

This Act only applies to workplaces. Workplace is defined under section 3. As such, its
application is limited. It does not apply to ordinary offices.

The Act lists so may duties. We shall therefore only focus on the major ones.

1. Employer’s general duty as regards the employee’s safety, health and welfare

This is governed by section 13 of the Act. By sub-section 2, this duty includes duty for the
provision and maintenance of plant, systems and environment of work which are hazard free
and provision of information.

Part IV of the Act requires general cleanliness, avoidance of over crowding, sufficient lighting,
provision of sanitary conveniences, provision of seats, change rooms, meal facilities, first aid
facilities etc.

For all purposes, this is codification of common law and common law authorities can equally
apply here.

Section 13 of the Act was considered in Kachiwanda vs. Eastern Produce Malawi Ltd
(2008) MLLR, 183

2. Duty as regards machinery

This is the most litigated on duty.

31
By section 35 of the Act, ‘every dangerous part of any moving machinery or component
thereof shall be securely fenced, unless it is of such construction as to be safe to every person
working on the premises as it would be if securely fenced.”

It has to be noted that liability here only arises from “dangerous” machinery. The same should
therefore be established before liability can be proved. See: Midland & Low Moor & Steel
Co. Ltd vs. Cross (1964) 3 ALL ER, 764, Kisiketi vs. Ruo Tea Estates Ltd, Civil Cause
No. 95 of 1986 (discussed in Chilumpha) and Kachiwanda vs. Eastern Produce Malawi Ltd
(2008) MLLR, 183

It further, has to be noted that duties imposed by the Act are absolute. See: DPP vs. Central
African Co. Ltd, 5 ALR (Mal) 235

The Act further imposes on an employer, duty to maintain the machinery.

(Full discussion in Chilumpha & the Act).

9. FUNDAMENTAL PRINCIPLES IN MALAWI’S EMPLOYMENT LAW

By part II of the EA, the Act is founded on three major fundamental principles of right to
unforced labour (section 4), non- discrimination (section 5) and right to equal pay (section 6).

i. Freedom from forced labour

By section 4(1), no person shall be required to perform forced labour. This is in tandem with
section 31 of the Constitution.

By section 4(2), it is a criminal offence on the part of the employer to impose forced labour on
the employee.

As Banda, R.Z. emphasizes in her book “Access to Labour Justice” (supra) at page 9:

32
 “It is not mutual termination just by the mere fact that upon tendering a resignation, the
employer accepted to release the employee. In any case the employer may not refuse an
employee a resignation as doing so would render a contract of employment into a
contract of servitude and subject the employer to criminal liability in the offence of
slavery or forced labour.”

ii. Freedom from discrimination

By section 5(1), no employee or prospective employee shall be discriminated against on any

basis in respect of recruitment, training, promotion, terms and conditions of employment,
termination of employment or other matters arising out of employment relationship.

The provision has a list of grounds of discrimination prohibited such as race and sex. See:
Banda vs. Dimon (Malawi) Limited (2008) MLLR, 92 and Nazombe vs. Malawi Electoral
Commission (2008) MLLR, 460), Kamkosi vs. Office of the Ombudsman (2008) MLLR,
418 and Phiri vs. Smallholder farmers Trust (2008) MLLR, 482

It has however, been held that the list is not exhaustive and may include any ground not listed
such as HIV status. See: David Nyangulu vs. Import & Export Trading, Matter No. 514 of
2004

This provision also has its threshold from the Constitution in particular section 20. See: Banda
vs. Dimon (Malawi) Limited (2008) MLLR, 92, Banda vs. Lekha (2008) MLLR, 338 and
Kaunda vs. Tukombo Girls Sec. Sch. (2008) MLLR, 446

By section 5(2), the employer may engage in positive discrimination programmes in order to
achieve equality. See Chilumpha for detailed discussion.

33
Again connected to this requirement, the Act makes specific provisions for women being a
special group. See: Sections 47 and 48 on maternity leave and the right to return to work after
maternity leave. See also: Jumbo vs. Banja La Mtsogola (2008) MLLR, 409.

iii. Right to equal pay

By section 6(1) of the EA, every employee is entitled to equal pay for work of equal value
without any discrimination on whatever basis. See: Banda vs. Dimon (Malawi) Limited
(2008) MLLR, 92

The provision seems to emphasize on equal work. One would therefore wonder whether the
provision is applicable for people doing the same work but with different qualifications and
experience. We would submit in the negative since such approach may not be discrimination
since such people are in different positions. The emphasis on equal work therefore sounds a bit
misleading.

By sub- section 2 of section 6, where there is an allegation of violation of sub-section 1, the

onus is on the employer to show that there was no violation.

10. TERMINATION OF THE CONTRACT OF EMPLOYMENT

Just as any other contract, employment contract can be terminated by either party and on
various grounds. This topic discusses modes of termination of employment contract.

i. By effluxion of time

Where a contract is for a fixed term, it terminates (comes to and end) at the end of the term and
no notice is required- Section 28(2). See also: Kalowekamo vs. Malawi Environmental
Endowment Trust (2008) MLLR, 21 (SCA) and Dickiel Kussainda vs. Petroleum
Importers Limited, Matter No. IRC 187 of 2007

34
Since such a contract comes to an end on its on and there is no wrongfulness on the part of
either of the parties, such termination cannot found a claim for unfair termination. See:
Kalowekamo Case and Kusainda Case.

However, a fixed term contract can be renewed for another fixed term and such renewed
contract will be considered a separate contract all together. See: Kusainda case.

Where the contract is however renewed without agreeing on period, the position seems to be
that in turns into unspecified period contract. This is so because the present regime of
employment contract seems to favour unspecified period contracts unless expressly provided.
See: Section 28(3) and provision to 28(4)

Further, a contract which purports to be for a fixed term, will be deemed a contract for
unspecified period if it involves the filling on a lasting basis of a post connected with the
normal and permanent activity of an undertaking. It has however been held that this provision
does not entitle the court to disregard clearly worded contract to the effect that they are for a
fixed term. See: Kalowekamo case and Kusainda case.

Where the employer terminates an otherwise fixed term contract which had no termination
clause, the position seems to be that the employee is entitled as compensation, the
remuneration he could have earned to the end of the contract. See: Eddah Ngwira Chavula vs.
Society For Advancement of Women, Civil Cause No. 1668 of 2007.

Further, it has been argued as to whether a contract which stipulates retirement age at the time
it comes into force is a contract of fixed period or not (for the purposes of section 35 of the
EA). See: Blantyre Sports Club vs. Banda and Mkangala, Civil Cause No. 61 of 2003.

ii. By completion of the task

35
Where a contract is for the doing of a specific task, it terminates upon the completion of the
task- Section 28(4).

However, section 28(3) equally applies here such that where the effect of a contract which
purports to be for a specific task is the filling on a lasting basis of a post connected with the
normal and permanent activity of an undertaking, it is deemed to be a contract of unspecified
period.

Though not directly decided under this provision, it would seem the position reached by the
court in the Kalowekamo and Kusainda Cases would equally apply here such that the
provision will not apply in clear contract.

Most importantly again under this provision, the provisio thereto provides that in cases of
ambiguity, where an employee is regurarly and repeatedly employed and paid wages on the
basis of completion of a quantity of work which can be completed in less than 24 hours, the
contract shall be deemed to be of unspecified period. This provision was applied in Chiwembu
& Others vs. Dairiboard (Malawi) Limited (2008) MLLR, 145

iii. Discharge

An employment contract, just as any other contract, can be terminated by discharge by either
breach of either party or by frustration. The same principles of general contract law apply here
and hence, no need for detailed discussion.

In Nsaliwa vs. PG Industries (1995)1 MLR, 172, at 174 Villiera, J quoted with approval the
following statement in Charles Worth’s Mercantile 13th Ed:

“Either party, may lawfully terminate a contract summarily, that is to say without giving
notice if the other party has committed a serious breach of the contract. Whether the
breach is sufficiently serious to justify summary termination has to be answered in the

36
 context of each contract and few general guidelines can be discerned from the cases.
Judges have tended to view any suggestion of dishonesty or disobedience on the
employee’s part strictly”

Breach may constitute of a series of acts. See: Banda vs. Dimon (Mlw) Ltd (2008) MLLR,
92, Nsaliwa vs. PG Industries (1995)1MLR, 172

iv. Death of either party

Since employment contract is a personal contract, the death of the employee, automatically
terminates the contract (general contract law on personal contracts apply).

On the other hand, in case of death of the employer, then where the employer’s personal or
legal position formed the basis of employment, then his death would cause the employment
contract to terminate one month after his death. (e.g. first lady). What this means that the
employee would continue working for a month from the date of the employer’s death.
Presumably, the employer’s personal representatives would carry the burden of paying the
employee in the month he works.

What this further means is that where the personal or legal position of the employer did not in
any way form the basis of the contract, the employee shall remain employed (e.g. president).

v. By mutual agreement

As earlier on discussed, employment contract, just as any other contract is a consensual

arrangement. Being consensual therefore, it can equally be terminated consensually. See:
Abdullah vs. Steel Works Ltd, 12 MLR, 419.

It has to be noted however that where a contract is terminated by mutual agreement, an

employee is still entitled to severance allowance- Section 35 of the EA (to be considered in
details later).

37
 vi. By notice

What is vital to note here is that even a contract for unspecified period, should not be regarded
as contract for life. It can in proper cases be terminated. As Chimasula Phiri, J stated in
Chikoja vs. The Southern Region Water Board, Misc. Civil Cause No. 47 of 2003:

“Employment should not be taken as a lifetime engagement. It is a contract and as

every contract has got terms. One cries foul where such terms have been breached and
not otherwise. An expectation is not a contractual term unless expressly incorporated
in the contract”

Again in Thorncroft vs. Nchima Tea & Tung Estates Ltd, 14 MLR, 486 at 498 Mtegha, J (
as he was then) quoted with approval the following statement by Lord Goddard in
MacClelland vs. Northern Ireland General Health Services Board (1957)2 ALL ER, 129:

“That an advert offers permanent employment does not, in my opinion, mean thereby that
employment for life is offered. It is an offer, I think, of general as distinct from merely
temporary employment … with and expectation that, apart from misconduct or inability
to perform the duties of his office, the employment would continue, (but) is always liable
to be determined by reasonable notice. Nor do I think that, because a person is offered
pensionable employment, the employer thereby necessarily engages to retain the
employee in his service long enough to enable him to earn a pension.”

For this, at common law, both employer and employee could terminate the employment
contract without any reason as long as they give reasonable notice. See: Chihana vs. Council
of the University of Malawi, 15 MLR, 58 (for employer) and Kalino vs. McConnell & Co
(1997)2 MLR, 28 (for both). A party could not even be compelled to give reasons. See: Mvalo
vs. Council for the University of Malawi (1995)2 MLR, 434

38
For this, it was at some point in fact even believed that damages for unfair dismissal should be
the amount an employee could have received if proper notice was given. See: Ernest Mtingwi
vs. Malawi Revenue Authority, Civil Cause No. 3389 of 2004 and Malawi Revenue
Authority vs. Mpaso, Civil Cause No. 59 of 2004

By statute however, this right seems to have been heavily restricted on the part of the employer
by virtue of section 57 of the EA.

On the other hand, the right seems to have increased for the employee by virtue of section
31(4) of the Constitution guaranteeing every person the right to withdraw labour.

Length of notice

As to how long should the notice be, is a matter of the contract itself to provide. At common
law however, the position was that where no period is provided in the contract, the law
required reasonable notice to be given. See: Sivaswamy vs. Agason Motors Ltd (1995)1
MLR, 274.

What is reasonable is of course a question of fact depending with the circumstances of a

particular case. The guiding principle however was a presumption that the length of the notice
would correspond with the intervals of payment. See: Mkandawire vs. Capital Oil Refining
Industries Ltd (1997)1 MLR, 448

Under statute however, section 29 of the EA gives guidance by providing minimum periods
(read)

Effect of notice

It should however be noted that the giving of notice does not of itself terminate the contract.
The parties’ obligations continue until the lapse of the notice period. In fact it has been held
that a party can withdraw notice as the same is mere intention to terminate the contract at the
end of the period. See: Mughogho vs. Macsteel (Malawi) Ltd, Matter No. IRC 253 of 2005

39
Payment in lieu of notice

Instead of serving notice, a party intending to terminate the contract may opt to make payment
in lieu of notice- Section 30 of the EA

Where it is the employer making payment, he shall pay the employee his remuneration and
confer on him all other benefits that could accrue up to the expiration of the notice period-
Section 30(2). (check meaning of remuneration in section 3). This provision was considered in
Thomson vs. Leyland DAF (Malawi) Ltd (2008) MLLR, 291

However, if it is the employee terminating, he shall only pay remuneration to the end of notice
period- Section 30(3). The definition of remuneration was also considered in Thomson vs.
Leyland DAF case.

By statute, the amount of payment corresponds with the notice period. A contract cannot
therefore provide for differences in the two. It has also been held that such provision would
contravene section 31 of the Constitution. See: Blantyre Netting Co. vs. Chidzulo & Others
(1996) MLR, 1 (contract provided for 3 month notice but one month pay in lieu of the same).

Termination by notice however, seems to be completely out of question for a person employed
in the public service. This is so because by section 27 of the Public Service Act, a person
employed in the public service cannot have his employment terminated unless his post has
been abolished and unless he is first heard and is given reasons for the decision. The
implications of this provision were considered in Chawani vs. Attorney General (2008)
MLLR, 1

By section 30(1) of the EA, either party can waive the requirement to be given notice and
without claiming payment in lieu thereof.

40
 vii. By insolvency of the employer

Where the employer becomes insolvent and the undertaking ceases to operate, the employees’
contracts will terminate a month after the insolvency- Section 34(1)

However, where the undertaking continues or is transferred, the employment contracts

continue notwithstanding the insolvency or winding up- Section 34(2)

This is a departure from company law principles which are to the effect that upon
commencement of insolvency or liquidation process, the employee’s contract automatically
terminate- See: Chilumpha, Company Law, 2nd Ed at 522

By Section 34(3), in cases of insolvency or winding up, the employee’s entitlements earned as
stipulated therein take priority over other creditors. To this extent, the EA varies the principles
of company law- See 287 of the Companies Act

viii. Transfer of the undertaking

At common law, once the employer transfers the undertaking, the employees were deemed
dismissed. They therefore had a right to accept the new employment or sue for wrongful
dismissal. It has been argued that the rationale for this is that it is the right of every employee
to chose his employer and that his employers cannot just change without his consent. See:
Nokes vs. Doncaster Amalgamated Collieries Ltd (1940) AC 1014 (must to read).

The EA re-enforces this principle in section 32(1)

Under the Act however, where the undertaking is sold, transferred or otherwise disposed of, the
employment contracts are automatically transferred and all the rights and obligations under the
same accrue as between the new parties as they would between the old parties- Section 32(2).

41
However, as Chilumpha rightly argues, this provision, though it tries to avoid job insecurity, it
has the effect of forced labour as it gives the parties no option. A counter- argument may
however be that since an employee always has a right to withdraw his labour, he can always
resign if not satisfied.

In practice however, there is normally an arrangement between the transferor and the transferee
as regards how to deal with the employees. Normally, the transferee will have option to chose
which employee to retain and then the transferor be responsible for terminal payments to the
unchosen employees. Another option is normally that before the transfer, you declare
restructuring and redundancy follows. In such cases, there will be no unfair termination and
then you only pay the affected employee other terminal benefits.

11. DISMISSAL

In the previous topic, we discussed the major modes of terminating the employment contract.
One major mode was however, left out to be discussed separately. This was due to the fact of
how crucial the mode is and considering the various rules applicable. This mode is dismissal.

Under dismissal, we shall consider the various modes (types) of dismissal which are (i)
justifiable dismissal (ii) unfair dismissal and (iii) constructive dismissal.

Dismissal defined

The EA does not define the term dismissal. What is apparent however is that for any claim of
dismissal of whatever nature to be sustained, the claimant must prove that there was in fact
dismissal. In other words, the claimant must show that the employer did by some other means
determine or bring to an end the employment relationship. Because of this, a person cannot
claim dismissal of whatever nature whilst he is still in the employ of the respondent. See:
Nazombe vs. Malawi Electoral Commission (2008) MLLR, 460.

42
Again since dismissal presupposes that it is the employer’s conduct which brings to an end the
employment relationship, an employee cannot claim dismissal where he leaves the
employment on his own volition. See: Mughogho vs. Macsteel (Malawi) Ltd, Matter No.
IRC 253 of 2005 and B. Palmer vs. Stewart & Lloyds, Matter No. 15 of 2006

Similarly, it will not be dismissal where an employee opts for resignation. See: Somanje vs.
Reserve Bank of Malawi, 14 MLR, 465

Again it will not be dismissal where the contract comes to an end the lapse of time as in such a
case, it is not by the conduct of the employer. See: Kalowekamo vs. Malawi Environmental
Endowment Trust (2008) MLLR, 21 (SCA) and Dickiel Kussainda vs. Petroleum
Importers Limited, Matter No. IRC 187 of 2007

Unfair dismissal

An employee does not have a claim against employer by merely proving dismissal. He should
in addition, show that the dismissal was in fact unfair. By section 58 of the EA, dismissal is
unfair if it does not conform with section 57 or is constructive dismissal within the meaning of
section 60. (for now, we will focus on conformity with section 57).

By sub- section 1 of the said section 57, the employee’s employment cannot be terminated
unless there is a valid reason connected to the employee’s capacity or conduct or based on the
operational requirements of the undertaking.

Further, by sub- section 2 of the said section 57, where the reason is connected with the
employee’s capacity or conduct, the employment shall not be terminated unless the employee
is given as opportunity to defend himself unless the employer cannot reasonably be expected to
provide the opportunity.

43
The effect of this provision is to completely change the position at common law which was to
the effect that the employer can terminate the employment contract for no reason as long as he
gives due notice or payment in lieu of notice. See: Chihana vs. Council of the University of
Malawi, 15 MLR, 58

From this provision, has emanated what has been termed procedural fairness and substantive
fairness.

i. Procedural fairness

This emanates from sub- section 2 of section 57. What this means is that even where an
employee is guilty of any misconduct, before his employment can be terminated, he must be
afforded an opportunity to defend himself (this is what is usually called the right to be heard.)

Commenting on this provision, Chipeta, J stated in Ernest Mtingwi vs. Malawi Revenue
Authority, Civil Cause No. 3389 of 2004:

“By Sub- section (2) of the same section 57, however, the Employment act has put in
store further taxing demands on the employer when he embarks on the exercise of
terminating services of his employee. This provision requires that where the
contemplated termination is for reasons connected with the employee’s capacity or
conduct, then before it is effected, it ought to be preceded with the provision of an
opportunity to the concerned employee to defend himself against the allegations made,
unless the employer cannot be reasonably expected to provide that opportunity.”

See also: Sam Nthini vs. Energem Petroleum Limited, Matter No. PR 513 of 2007 and
Jawadu vs. Malawi Revenue Authority (2008) MLLR, 397

However, for a person to be deemed to have been given a right to be heard, it carries with it a
number of components. The same principles as they apply in Administrative law equally apply
here.

44
One of the components of the right to be heard is that the accused must be heard by an
impartial tribunal. The decision maker must not therefore have interest in the matter. As
Chimasula Phiri, J stated in Khoswe vs. National Bank of Malawi (2008) MLLR, 201 at 216:

“It is also a general principle of law that a person who holds an inquiry must be seen to
be impartial. Justice must not only be done but must be seen to be done, that if a
reasonable observer with full knowledge of the facts would conclude that the hearing
might not be impartial, that is enough. Even if the decision maker has not been biased at
all, a decision may still be quashed if they have any professional or personal interest in
the issues because justice must be sees to be done”

See also: Ntaba vs. Continental Discount House (2008) MLLR, 472.

Secondly, for the right to be heard to be real, the accused person, must have an opportunity to
confront and cross- examine the accuser. In Lameck Moyo vs. National Bank of Malawi,
Matter No. IRC 257 of 2007 the court properly stated the principle in the following terms:

“Moreover it is trite law that an employee need be given a chance to confront whoever is
accusing him of any misconduct. In the present case the applicant was not given this
chance, the respondents heard the accuser in the absence of the applicant and he only
had a chance to question the accuser in this court.”

Again in Khoswe vs. National Bank of Malawi, Civil Cause No. 718 of 2002, the Court
stated:

“It is a fundamental principle of natural justice that where the duty to act fairly demands
an oral hearing, the right to cross- examine witnesses existed”

Another limb of the right to be heard is that the accused person, must know the charges
levelled against him. The requirement of the law is not only that the charges must be known
but that they should be set down with sufficient particularities to allow the accused person
properly prepare his defence. Again in Lameck Moyo vs. National Bank of Malawi, Matter
No. IRC 257 of 2007, the court stated:

45
 “As for the procedural fairness it is important that the particulars of the charge should
be clearly specified to allow the employee prepare for his defence accordingly. Failure to
do this would be unfair labour practice and would lead to miscarriage of procedural
justice.”

Again, a right to be heard requires to be given sufficient time for one to prepare for his
defence. In R vs. Thames Magistrates’ Court, ex p Polemis (1974)2 ALL ER, 1220 Lord
Widgery CJ commented as follows at 1223 on the need of sufficient time:

“But of the versions of breach of rules of natural justice with which in this court we are
dealing constantly, perhaps the most common today is the allegation that the defence
were prejudiced because they were not given a fair and reasonable opportunity to
present their case to the court, and of course the opportunity to present a case to the
court is not confined to being given an opportunity to stand up and say what you want to
say; it necessarily extends to a reasonable opportunity to prepare your case before you
are called to on to present it. A mere allocation of court time is of no value if the party in
question is deprived of the opportunity of getting his tackle in order and being able to
present his case in the fullest sense …..

“In the instant case, on the brief and simple facts that I have related, can it be said that
the applicant was given a reasonable opportunity to present his case? It seems to me to
be totally unarguable that he was given such a reasonable opportunity. He had no time to
take samples, no time to see a report of samples taken by the prosecution, no time to look
for witnesses, no time to prepare any supporting evidence supportive to his own, and that
too when he was a man with a very rudimentary knowledge of the English language in a
country foreign to his own. When one just looks at those facts it seems to me to be a case
in which any suggestion that he had a reasonable chance to prepare his defence is
completely unarguable.”

Another head of the right to be heard is that where the tribunal is in possession of any
statements or evidence against the accused, the same must be disclosed to the accused. In

46
Chakhaza vs. Portland Cement Co (2008) MLLR, 118, at 127, Potani, J quoted with
approval the following statement by Lord Denning in Kanda -vs- Government of Malaya
(1962) AC, 322:

“if the right to be heard is to be real which is worth anything, it must carry with it a right
in the accused man to know the case which is made against him. He must know what
evidence has been given and what statements have been made affecting him, and then he
must be given a fair opportunity to correct or contradict them”.

See also: Zodetsa -vs- Council for the University of Malawi (1994) MLR, 412 where the
passage was also quoted by Mtegha, J (as he was then)

However, it should be not that since an employer is not a court of law, the law does not require
strict formalities to be followed. As long as the requirements are met, the employer would have
discharged his duties. See: Khoswe vs. National Bank of Malawi (supra) and Lameck Moyo
vs. National Bank of Malawi (supra).

Moreover, legally, there seems to be no requirement for an oral hearing since all that is
required for an employee is to comment on the allegations levelled against him. See: Hassan
Kwisongole & Others vs. Toyota Malawi Ltd, Civil Cause No. 3071 of 2000.

It should however, be noted that the right to be heard is not under section 57 absolute. The
employer will not be bound to accord such an opportunity if he cannot reasonably be expected
to do so. Whether the employer could not reasonably be expected to accord the opportunity is a
matter of fact to be determined on the facts of a particular case.

It also has to be noted that by virtue of section 57, an employer cannot terminate a contract in
reliance to termination clause or in reliance to section 28 if there is non- compliance with
section 57. In other words, the notice provision under section 28 and 29 seems to be for the use
of the employees only. This is clear from section 28 itself which says that it is subject to the
provisions of section 57.

47
There has however, not been consensus on how the two provisions can be reconciled. There are
authorities to the effect that an employer can merely terminate with notice even without treason
if the same is provided in the terms of contract- See: Guwende vs. AON Malawi Ltd, Misc.
Civil Cause No. 25 of 2000 (decided before the LRA) and Mughogho vs. Macsteel (Malawi)
Ltd, Matter No. IRC 253 of 2005.

The other school of thought is that in view of section 57, an employer cannotb terminate
without reasons and without according an employee a right to be heard by merely giving
notice. See: Granger Nkhwazi vs. Commercial Bank of Malawi, Civil Cause No. 233 of
1999 and Banda vs. Bible Society of Malawi, Matter No. 10 of 2000 (Summarised in
Chilumpha)

The accepted view however is that the second view represents the true position of the law.

It has also been held that even personal knowledge of the offence by the employee, is no
substitute to hearing him. See: Mtingwi vs. MRA, Civil Cause No. 3389 of 2004 and
Chakhaza vs. Portland Cement Co. (2008) MLLR, 118

ii. Substantive justice

This part goes to the reasons for dismissal and is covered by section 57(1). As earlier on stated,
before an employee can be dismissed, there must be a valid reason connected with the
employee’s capacity or conduct or with the operational requirements of the undertaking. See
also: Ernest Mtingwi vs. Malawi Revenue Authority (supra), Nthini vs. Energem
Petroleum Limited, Matter No. PR 513 of 2007

In Kettie Mukamba vs. Malawi Revenue Authority, Matter No. IRC 101 of 2008, the
Court stated:

48
 “Under section 57 of the Employment Act, a dismissal is fair where there is a valid
reason connected with the applicant’s conduct or capacity justifying dismissal. Moreover
there should also be a hearing before the said dismissal is effected on him.”

Employee’s capacity or conduct

The act does not define situations that may qualify termination under the expression ‘capacity
and conduct’.

However, what seems to come out clearly is that conduct goes to the behaviour of the
employee whilst capacity goes to the ability to discharge duties.

What this means is that the situations need not be self induced (on capacity). So for example, a
driver who loses his legs would have lost capacity to perform his job and hence, an employer
can terminate the services. In Phiri vs. Sunbird Lifupa Lodge, Matter No. IRC 232 of 2002,
the Court stated:

“In an employee reaches a point where there is absolute incapacity (due to illness) then
the employer will be justified to terminate the employment”

Again in terms of conduct, the Act does not list which conduct would justify termination. The
approach would seem therefore to be the same as the one under common law that where an
employee is guilty of such conduct as to take away the continued trust between the two, then
the employer is justified in dismissing him. The most often cited statement here is the
statement on Sachs LJ in Sincliair vs. Neighbour (1962)2 QB 279 where at 289 he stated:

“It is well established law that a servant can be instantly dismissed when his conduct is
such that it not only amounts to a wrongful act inconsistent with his duty towards his
master but is also inconsistent with the continuance of confidence between them”

49
See: Nyirenda vs. Lujeri Tea Estate Ltd, 10 MLR, 368, Lapukeni vs. Commercial Bank of
Malawi (1996) MLR, 139 and Chiwindo vs. Stagecoach Malawi Ltd (1997)1 MLR, 457.
Importantly, see Kettie Mukamba vs. Malawi Revenue Authority, Matter No. IRC 101 of
2008 (decided under the Employment Act)

An employer will also be entitled to dismiss an employee for reasons justifying summary
dismissal under section 59. This will be considered later.

Section 57(3) however, contains reasons which do not suffice as valid reasons for dismissal
(check the list).

On section 57(3)(a) see David Nyangulu vs Export Trading Co. Ltd, Matter No. 514 of
2007 and Banda vs. Lekha (2008) MLLR, 338. The cases held that HIV status is inclusive in
the list. On race see: Banda vs. Dimon (Mlw) Ltd (2008) MLLR, 92. On sex see: Phiri vs.
Smallholder farmers Trust (2008) MLLR, 482 and Chisowa vs. Ibrahim Cash ‘n’ Carry
(2008) MLLR, 385

By section 61 of the Employment Act, the onus is on the employer to show that there was a
valid reason to justify dismissal and that where the employer fails to do so, there is conclusive
presumption that the dismissal is unfair. For this, it is for the employer to bring evidence that
would justify dismissal. See: Kettie Mukamba vs. Malawi Revenue Authority, Matter No.
IRC 101 of 2008 and Sam Nthini vs. Energem Petroleum Ltd, IRC Matter No. PR 513 of
2007

To determine whether a whether a valid reason exists, the court will not just take the reason as
given by the employer. It will inevitably require the evidence to support the reason. In essence,
the court almost sits like a disciplinary panel itself. In Mahowe vs. Malawi Housing
Corporation, Civil cause No. 3687 of 2000, the Court stated:

“The court usually examines the reason given for termination of employment and the
act of misconduct and tries to find if the termination is justified. If the reason is not

50
 supported by the evidence the court may conclude that there was no justification for the
plaintiff’s dismissal”

See also: Chisowa vs. Ibrahim Cash ‘n’Carry (2008) MLLR, 385.

However, section 61(2) of the EA places further onus on the employer. Apart from showing
that he complied with the provisions of section 57 of the Act, the employer must also show that
he did in the circumstances act with justice and equity. This provisions was applied in Jawadu
vs. Malawi Revenue Authority (2008) MLLR, 397 and Ron Manda vs. The Sugar
Corporation of Malawi, Civil Cause No. 1761 of 2001.

However, whether an employer acted with justice and equity, must be decided on the facts of a
particular case and hence in Lameck Moyo vs. National Bank of Malawi, Civil Appeal No.
18 of 2008, the same judge who decide the Ron Manda case, refused to apply the provision.
For the same reason, when the Ron Manda case went to the Supreme Court, the Supreme
Court having agreed with the judge in the High Court on legal principles, reversed the decision
on facts.

The employer only need to prove such a reason on the balance of probabilities. See: Jawadu
vs. MRA (2008) MLLR, 397

As said earlier, the Act does not stipulate the conduct that may justify dismissal. This however
include theft (Lameck Moyo vs. National Bank of Malawi), Fraud (Kalima vs. National
Bank of Malawi, Matter No. 291 of 2003), refusal to obey lawful and reasonable orders. As
was discussed earlier on however, such orders must both be lawful and reasonable (Magalasi
vs. National Bank of Malawi Limited (2008) MLLR, 45 cf Sam Nthini vs. Energem
Petroleum Ltd, Matter No. PR 513 of 2007), absence from work without employer’s
authority and without valid reason (Biswick vs. HAPS Investment, (2008) MLLR, 360),
negligence on duty (Banda vs. ADMARC (2008) MLLR, 330, Generally, breach of implied
duties such as duty to maintain trust (Kettie Mukamba vs. Malawi Revenue Authority,
Matter No. IRC 101 of 2008), commission of a criminal offence in the course discharge of

51
duties ( Magalasi vs. National Bank of Malawi, Matter No. IRC 288 of 2003), sleeping on
duty (Mzagada vs. Securicor (Mlw) Ltd, Matter No. IRC 65 of 2003 and Witness vs.
Securicor (Mlw) Ltd, Matter No. IRC 26 of 2006)

However, what should also be emphasized is that in cases of capacity and conduct, the same
must be connected with the employee’s employment. See: Chisowa vs. Ibrahim Cash ‘n’
Carry (2008) MLLR, 385

Operational Requirements

By the very section 57 of the Employment Act, an employee need not be given a right to be
heard where the termination is based on operational requirements. See also: Gladys Matiki vs.
Cure International, Matter No. IRC 234 of 2004

The Act however, does not define operational requirements. What is envisaged here however,
are situations of retrenchment and redundancy. In the case of Gladys Matiki vs. Cure
International, Matter No. IRC 234 of 2004, the Court stated:

“The operational requirements under the Act are retrenchment and redundancy.
Retrenchment is workforce reduction due to economic rundown. Redundancy is
workforce reduction as a result of technological innovation.”

It has however been observed that unlike in cases of termination due to incapacity and conduct,
the Act does not provide safeguards for termination due to operational requirements. For this,
the Courts have usually used international instruments such as Convention 158 on the
Termination of Employment. See: Gladys Matiki case.

Though termination based on operational requirements seems apparently justifiable and

incapable of making a basis of action, the same may be unfair if the employer does not use
discernible criteria or uses a subjective or discriminatory criteria. Moreover, such exercise

52
cannot be justified where the affected employees are immediately replaced. The exercise may
also be unjustifiable where it only affects one employee. See Gladys Matiki case for all these
(a must to read).

Further, pursuant to article 14 of the Convention 158 on the Termination of Employment,

the Ministry of Labour and Vocational Training established the Policy Statement on
Retrenchment and Recruitment Practices, 2000 which lay down the procedure to be followed
before retrenchment. These include that the employer intending to effect retrenchment must
inform the ministry of the intention and give inter alia the rationale and justification for the
exercise. Failure to comply with this, has been held to result to the termination being unfair
dismissal. See: Gladys Matiki case.

It has further been held that an employer needs to inform the employees of the intended
operational exercise to prepare the employees for the possible job loss and that failure to do so
may amount to unfair labour practices contrary to section 31 of the Constitution. See: Gladys
Matiki case.

What clearly comes out from the principles, is that an employer who claims operational
requirements, must establish and justify the same.

Again, from the wording of section 61(2) the employer is still even here under the obligation to
show that he acted with justice and equity.

Read Chilumpha for detailed discussion.

Constructive dismissal

By section 60 of the EA, an employee is entitled to terminate the employment contract without
notice or with less notice than required where the employer’s conduct has made it unreasonable
to expect the employee to continue the employment relationship.

In such situations, the employer does not expressly or impliedly terminate the contract(which
situations may fall under section 57) but just conducts himself in such a manner that

53
employment relationship cannot continue. It is in fact the employee who terminates the
contract.

The Act does not list the conduct on the part of the employer that may justify claim for
constructive dismissal. The courts will however, normally find constructive dismissal where
the employer is guilty of breach of a fundamental term of the contract. See: Changa vs. SS
Rent A Car 2000 Ltd (2008) MLLR, 373 and Banda vs. Dimon (Malawi) Ltd (2008)
MLLR, 92

By section 61(3) of the EA, the onus is on the employee to show that by the employer’s
conduct, he could not be reasonably expected to continue with the employment relationship
and the employee will have to show this on the balance of probabilities. See: Changa vs. SS
Rent A car (supra).

It has however to be noted that section 60 only gives an employee a right to terminate the
contract. He may chose to bring an action for a separate remedy. For this, for an employee to
claim for constructive dismissal, he must show that there was in fact dismissal i.e. that
employment was terminated. An employee cannot claim for unfair dismissal where he is still in
the employer’s employment. In the case of Nazombe vs. Malawi Electoral Commission
(2008) MLLR, 467, the Court stated at 467:

“Constructive dismissal under section 60 of the Employment Act presupposes that the
employee has terminated his/ her employment with or without notice. In this case the
applicant has not terminated her employment. She is still in the employ of the
Respondent. All she is asking for from this court is that she should go back to the Office
of the Chief Elections Officer, which is her rightful office.”

See also: Kamkosi vs. Office of the Ombudsman (2008) MLLR, 418

Being a factual issue, whether the conduct of the employer made it unreasonable to continue
with employment relationship, will be determined on the facts of each case. Some of the
conduct that has justified such a finding however, include things like insults and ridicule
(Changa vs. SS Rent A Car), variation of duties and discriminations (Banda vs. Dimon
(Mlw) Ltd)

54
Summary dismissal

By section 59(1) of the EA, an employer is entitled to summarily dismiss an employee on the
grounds as listed therein. (for cases, one can refer to the ones discussed under unfair dismissal.
In any event, all the cases discussed there, concerned summary dismissal).

By section 59(2), means termination of employment contract by the employer without or with
less notice than the employee would ordinarily have been entitled.

The distinction between summary dismissal and general fair dismissal which complies with
section 57 is only on notice. Otherwise, even under section 59, an employee is entitled to the
right to be heard.

Again, combining sections 57 and 59, what comes out is that where an employee is guilty of
any other misconduct entitling the employee to dismiss him under section 57 but does not
qualify under section 59, then an employer can only terminate with notice e.g. insulting fellow
workers may be valid reason under section 57 entitling an employer to terminate the
employee’s employment but may not easily fit under section 59. In such a case, it would seem,
an employer can only terminate by notice of payment in lieu thereof.

Remedies for unfair dismissal

By section 63 of the EA, an employee who has been unfairly dismissed may be awarded one or
more of the following remedies: (i) reinstatement (ii) re-engagement and (ii) compensation.

i. Reinstatement

By section 63(1)(a) reinstatement is a remedy the employee is brought back to his employment
and is treated in all respects as if he had not been dismissed.

What this means if that the employer must take back the employee on the same position and
with the same benefits the employee enjoyed before dismissal. The employee must also be paid

55
what he has lost in between. See: Chakhaza vs. Portland Cement Co. (2008) MLLR, 118 (a
must to read)

By sub- section 2 of section 63, in deciding as to which remedy to award, the court must first
consider the possibility of ordering re-instatement or re-engagement. What this means is that
compensations must not the first option but second. See: Chakhaza vs. Portland Cement Co.
and Phiri vs. Smallholder Coffee Farmers Trust (2008) MLLR, 482.

However, before the court makes an order for reinstatement, it must take into account a number
of issues. By the same section 63(2), the Court needs to take into account the wishes of the
employee and the circumstances in which the dismissal was effected.

In essence, what this means is that the court cannot make a reinstatement order against the
wishes of the employee. See: Chakhaza vs. Portland Cement. Again, just flowing from this,
is the fact that the court would not make a reinstatement order where the employee does not
ask for it. See: Chakhaza vs. Portland Cement.

On the circumstances in which the dismissal was effected, it is generally accepted that the
court will not order reinstatement where it is so clear that the mutual trust between the parties
has disappeared as to do so would just brew more trouble. See: Chakhaza vs. Portland
Cement. This may be for example in cases where the employee was indeed guilty of serious
misconduct but the unfairness only came in due to procedural irregularities.

Mere allegation of loss of trust by the employer however, would not suffice where it is not
supported by evidence. See: Chakhaza vs. Portland Cement.

By the same section 63(2) the court will also consider the contribution of the employee to the
dismissal and by section 64(3) where the employee is guilty of contribution, the court may
whilst making a reinstatement order, include a disciplinary penalty as a term. So for example,
the court may order demotion of some sort or a warning.

56
However, the court will not again order reinstatement where its enforcement would be
impracticable such as where the employee’s positions has been filled already. See: Chakhaza
vs. Portland Cement. The impracticability may also take the form that the conduct of the
employer is such that forcing the employee back to him, would expose the employee to another
hell. See: Phiri vs. Smallholder Coffee farmers Trust (supra). In that case, the Court stated:

“It was obvious from the conduct of Mr. Munthali, whose conduct and attitude the court
condemns, that he is an uncaring Human Resource Officer. One shudders at even the
prospect of having him as a boss let alone in charge of staff welfare. The option of
reinstatement is in this case not practicable.”

By section 64 (6) where the court makes an order of reinstatement or reengagement and the
employer fails to comply with it, the employee shall be entitled to compensation as may be
ordered under sub- section 4 and 5 and additional special award equivalent to twelve weeks
wages. See: Stanbic Bank vs. Myukula (2008) MLLR, 54

Section 64(6) seems to show weakness on the part of the law. It seems to enforce a common
law principle that an employer cannot be forced to take back a dismissed employee. One
wonders as to why such conduct should not amount to contempt of court.

Another point worth noting here is that by section 64(1), the remedies under the provision are
not mutually exclusive i.e. a court can award them side by side. See: Chakhaza vs. Portland
Cement and DHL International Ltd vs. Aubrey Nkhata, Civil Appeal No. 50 of 2004

ii. Re-engagement

By section 63(2), this is an order whereby the employee is to be engaged in a work

compellable to that in which he was engaged prior to his dismissal or other reasonably suitable

57
work from such date and on such terms of employment as may be specified in the order or
agreed by the parties.

By section 63(2), this is one of the remedies to be preferred to compensation.

Unlike in reinstatement, in reengagement, the employee need not return to his previous
position. All that is required is that his new job should be compellable or reasonably suitable to
the previous one.

The remedy will normally be available where it would be impracticable to award reinstatement
e.g where the post has been filled or where the employee cannot work with his bosses and the
court may order him to be reassigned to another department.

Summing up on the remedy, Potani, J stated in Chakhaza vs. Portland Cement Co. (2008)
MLLR, 118 at 131:

“As for re- engagement what comes out from section 63(1)(b) is that it does not entail the
employee returning to his job but that he should be engaged in work reasonably suitable
and comparable to his previous job from such date and on such terms of employment as
the court may order or agreed by the parties.”

What this means is that even the terms themselves may be varied.

Again, it has to be noted that whether the job is comparable or reasonably suitable is a matter
of fact considered on the facts of a particular case.

iii. Compensation

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By section 63(4) of the EA, where the Court opts for an award of compensation, the amount of
the same, shall be such amount as the court considers just and equitable in the circumstances
having regard to the loss sustained by the employee in consequence of the dismissal in so far as
the loss is attributable to the action taken by the employer and the extent, if any, to which the
employee caused or contributed to the dismissal. See also: Gladys Matiki vs. Cure
International, Matter No. IRC 234 of 2004 (order of assessment) and Fred Nkhwazi vs.
Malawi Distilleries, Matter No. IRC 50 of 2003 (Lilongwe Registry).

What clearly comes out from the provision is that the Court has quiet greater discretion in
determining the amount payable as compensation. However, just any other judicial discretion,
it is a requirement that such discretion be exercised judicially i.e. based on principle. As
Mkandawire, J observed in Tourism Development and Tourism Co. vs. Mhango (2008)
MLLR, 314 at 319:

“Unfair dismissal is a statutory wrong and in assessing compensation a court has a wide
discretion. That discretion however must be exercised judicially and in accordance with
principles.”

On the same point of principles, it has been held that since unfair dismissal is a statutory wrong
and the statute creates its own mode of assessing compensation, common law principles,
though they may provide some guidance, they are inapplicable and irrelevant in cases of unfair
dismissal. See: Tourism Developmenty & Tourism Co. vs. Mhango (supra).

Guiding principles is assessing compensation

a. Determination of loss

Before the court makes any award, it must first determine the loss actually suffered by the
employee. Determination of loss is relevant largely for two reasons. First, it is the general
principle of law that the purpose of monetory award for any wrong is to as much as money do
it put the plaintiff in the position he could have been had the wrong not been committed. See:

59
Benedicto Mbewe vs. Malawi Television Limited, Civil Cause No. 1708 of 2007 and Eddah
Ngwira Chavula vs. Society for Advancement of Women, Civil Cause No. 1668 of 2002.

The second relevance of determining the actual loss is because by the very section 63(4), when
making an award, the court must consider the loss suffered by the employee to the extent that
the same can be attributed to the employer.

In cases of unspecified period contracts, at common law, the employer could terminate the
contract by giving the relevant notice without any reasons. For that where there was wrongful
dismissal, the court held that the actual loss suffered by the employee could have been the
period he could have been served with notice. For that, the courts usually awarded the
employee the notice period pay as compensation or damages. A few more cases have
erroneously followed that principle. See: Ernest Mtingwi vs. Malawi Revenue Authority,
Civil Cause No. 3389 of 2004 and Malawi Revenue Authority vs. Mpaso, Civil Cause No.
59 of 2004

However, as earlier on discussed, the effect of section 57 of the EA is to take away that right
such that today, the employer no longer has that right to terminate the employment on mere
notice. In cases of unfair dismissal therefore, what the employee loses is not notice pay but
what he could in fact have earned to retirement. This was recognised by the Supreme Court of
Appeal in Chawani vs. Attorney General (2008) MLLR, 1. At page 11, the court stated:

“We must now apply the principles relating to the measure and assessment of damages
which we have considered in order to determine the appropriate damages to which the
appellant is entitled. In the light of the cases of Lavarack v Woods of Colchester Ltd,
Gunton v Richmond Borough Council and Hill v CA Parson & Co Ltd (supra) the
appellant would have been entitled to damages equivalent to salary for three months
being the notice period, and no more. However, the legal position has changed in the
light of Section 43 of the Constitution and also Section 27(1) of the Public Service Act.
These sections have taken away the power of government to terminate employment of
civil servants without justifiable reasons, by merely giving three months’ notice.

“Damages equivalent to salary covering the notice period are given to an employee who
is wrongfully dismissed, on the assumption that that is the period at the end of which an

60
 employer has power to terminate the contract of employment lawfully. We must now
consider, whether taking into Section 43 of the Constitution and Section 27(1) of the
Public Service Act, the Government had the power to terminate lawfully the employment
of the appellant earlier than the date of his mandatory retirement…[W]e take the view
that Government could not properly terminate the appellant’s contract of employment
earlier than the time when he would attain the mandatory retirement. He is, therefore
entitled to damages covering the period between the date of wrongful termination to the
date of the appellant’s mandatory retirement”.

Though this case considered the issue from the constitutional and the Public Service Act, the
reasoning is the same as under section 57 of the EA.

This position was also impliedly accepted by the same Supreme Court of Appeal in Stanbic
Bank vs. Mtukula (2008) MLLR, 54. The Court stated:

“[The respondent] worked faithfully for 19 years before his services were terminated by
the appellant. There remained 23 years of service before he could retire at the age of 65.
He lost, for the duration of that period, a salary of K103,511.22 per month, monthly
allowances of K14,031 for official car, K4,865.00 as garden allowance, a night guard
and a security alarm system, electricity allowance, water allowance and telephone
allowance. Clearly the basic salary was bound to rise. Again the respondent was likely to
receive some promotions and to rise to top positions during the remaining 23 years. The
result of the compensatory award made by the learned judge was that the respondent was
only given a salary of 57 months…by way of compensation. Can it be said that that
award is glaringly large or is so excessive that no reasonable court could make it? We do
not think so.”

In fact the cases of Mtingwi vs. MRA and Mpaso vs. MRA have already been questioned.
See: Kachinjika vs. Portland Cement Co (2008) MLLR, 161 at 180.

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The loss suffered by an employee in cases of unfair dismissal has been classified into two: (i)
immediate loss and (ii) future loss. Immediate loss is that loss which the employee suffers
between the date of dismissal to the date of assessment. This is easier to compute as all the
facts are known. On the other hand, future loss is that loss which the employee is expected to
lose in future. This is hard to compute as the employee may pick another job, or his
remuneration might have increased etc. These classifications were also used in Tourism
Development & Tourism Co. vs. Mhango (2008) MLLR, 314

Again on actual loss, the courts do not only consider the salary but all other benefits the
employee had. See: Stanbic Bank vs. Mtukula (supra) and Escom Limited vs. George
Matola, Civil Cause No. 418 of 2004

In Tourism development & Tourism Company et al vs. Ken Williams Mhango (supra),
Mkandawire, J sated:

“The respondent was not just entitled to notice pay as it is clear that as a result of the
appellant’s action in unfairly dismissing him he lost all the salary and any benefits he
would have earned from the date of dismissal to the date he would have retired”

In FW Kalinda vs. Limbe Leaf Tobacco Co. Ltd, Civil Cause No. 1542 of 1995 on an order
for assessment of damages, Dorothy nyaKaunda kamanga stated:

“The case of Dr. Chawani v Attorney General, MSCA No. 18 of 2000 (unreported)
is authority for the awarding of fringe benefits like telephone allowance, housing
allowance, if those benefits were not mere expectations but legal obligations based on
the contract of employment between the applicant and the respondent or any other
law. In quantifying these benefits in kind like medical aid the court should value what
they were worth to the employee.”

Again Tourism development & Tourism Company et al vs. Ken Williams Mhango (supra)
the court stated:

62
 “The respondent’s loss should include salary and benefits which he would have
been paid and which he may reasonably be expected to have received but for
dismissal.”

In cases of fixed term contracts, the actual loss is the amount of remuneration and other
benefits the employee would have earned during the remaining part of the contract. The courts
will normally award this as the amount of compensation. See: Eddah Ngwira Chavula vs.
Society for Advancement of Women (supra)

Since the purpose of compensation is to compensate the employee for the loss suffered, he will
not be awarded up to retirement age if he has in the meantime picked up another job. If
anything, he may only be awarded the difference if he now earns less. See: Escom Limited vs.
Gearge Matola, Civil Cause No. 418 of 2006 and David Nyangulu vs. Export Trading Co.
Ltd, Matter No. 514 of 2007

b. Attribute to the employer

Another clear guidance that comes out from section 63(4) is that the court will take into
account only that loss which is attributable to the employer’s act of terminating the
employment. Where the loss is therefore the employee’s own making, the employer will not be
liable. See: Glady’s Matiki vs. Cure International Limited, Matter No. IRC 234 of 2004. In
the case, the court refused to award the applicant the whole claimed amount because it was
shown that part of the period the applicant did not work, she was doing school and not looking
for a job. She could not therefore attribute such loss to the employer.

c. Employee’s duty to mitigate

The employee is under duty to mitigate his loss. He will not be awarded the loss he could have
avoided if he acted reasonably. This is one of the reasons the court reduced compensation in
the Gladys Matiki case. The Court stated in that case:

63
 “However it is clear from evidence that the applicant dedicated her time during these two
years to studying because that’s what she stated in her evidence. Thus it is clear that to
some extent the applicant did not do all she could to mitigate her loss.”

d. Consideration of contractual terms

In considering what is the actual loss, much reliance will be put on the terms of the contract.
An employee cannot claim mere expectations if the same were not terms of the contract. So for
example, the employer may be in the practice of paying school fees for his employees or
refund their fees though not under any contractual obligation. An employee can not claim this.
See: Council for the University of Malawi vs. Urban Mkandawire (Male) C/C No. 569/00.

The court is however, entitled to take into account obvious things such as possible increments.
See: Stanbic Bank vs. Mtukula (2008) MLLR, 54 and Escom Limited vs. George Matola,
Civil cause No. 418 of 2006

e. Statutory minimum

Sub- section 5 of section 63, provides minimum for unfair dismissal. It has however, been held
that the provision only gives minimum but maximum is left to the discretion of the court to be
determined in accordance with the circumstances of the case. See: Malawi Environmental
Endowment Tust vs. Kalowekamo (2008) MLLR, 237

Of importance again here is that it has been held by the Supreme Court of Appeal that the term
pay includes not only salary but all other benefits payable whether in cash or in kind. See:
Stanbic Bank Limited vs. Mtukula (2008) MLLR, 55

It will however, be observed that the provision only provides guidance to people who have
worked for at least a year. This means that for those with less than a year, it is sorely in the

64
discretion of the court. For example, in Gladys Matiki case, the applicant had worked for 9
months but she was awarded 12 month salary as compensation.

Again, the provision seems to be unfair since people who have lost more, are given less
maximum and vice versa. There can be no argument here to say that those who have stayed
more should get more as appreciation since this is already taken care of in severance
allowance.

f. Additional compensation for discriminatory conduct

By the same section 64(5), the court may award additional compensation where dismissal was
based on any of the reasons set out in section 57(3). This provision was used in the case of
David Nyangulu vs. Export Trading Co. Ltd, Matter PR. IRC 514 of 2007 and Phiri vs.
Smallholder Coffee Farmers Trust (2008) MLLR, 482

g. The employee’s contribution

By Sub- section 4 of section 63 of the EA, when assessing the award, the court shall also take
into account the employee’s contribution to the dismissal. See also: Khoswe vs. National
Bank of Malawi (2008) MLLR, 201. So for example, an employee who is dismissed for no
wrong at all, may all other factors constant, not get the same amount as he who is guilty of
fraud but the only problem being that he was not accorded the right to be heard.

h. Non inclusion of pure tortuous claims

Where the matter comes in the IRC, it will not in awarding the assessment, include pure
tortuous claims due to its jurisdictional limited (this has already been discussed). See:
Nazombe vs. Malawi Electoral Commission (2008) MLLR, 460

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 i. Non inclusion of non- financial loss

Chilumpha argues in his article ‘Compensation for Unfair Dismissal’ in Banda Zibelu;
Access to Labour Justice (2007) that non- financial loss is unawardable under the Act. This
however, may be subject of debate since from the wording of section 63, there is nothing in
principle why such loss should not be included. Indeed, because of jurisdictional limits, it may
not be included as a separate head but it may be one of consideration. So for example, an
employee who is dismissed after accusations of theft in the full hearing of the customers and
another one who is honourably dismissed through a letter, then with all other factors constant,
there is nothing in principle to consider the embarrassment the first employee went through. Of
course, he will not succeed if he brought the same as a separate claim such as defamation or
mental torture (Nazombe vs. Malawi Electoral Commission) but certainly, it may be one of
the factors to consider under section 63(4). It may fall without the term “just and fair”

For further reading of compensation see: Chilumpha; Compensation for Unfair Dismissal
and Chikopa; Remedies for Unfair Dismissal: A Discussion of Section 63 of the
Employment Act 2000 both in Banda Zibelu R; Access to Labour Justice (2007) (a must to
read)

iv. Interim relief

By Rule 25(1)(a)(i) of the Industrial Relations Court (Procedure) Rules, the IRC can grant
an interim relief pending determination of the matter. By its very wording, the Court may grant
any of the reliefs it is competent to grant. But certainly, it cannot grant an interim relief for a
relief it cannot grant as a full relief.

So for example, the Court can in appropriate case, grant an interim relief in form of
compensation. This happened in Humphrey Mvula vs. Shire Bu Lines Ltd (IRC). By its
very nature, the court will however, normally grant this relief in very clear cases for fear of
inflicting unnecessary loss on the employer in case it transpires that the employee was indeed

66
wrong. Normally this will be where there is some admission by the employer but may be the
question is just about application of law or indeed compensation awardable.

Again, the court may equally grant reinstatement as an interim relief. See: Chimkondenji vs.
Malawi Stock Exchange Ltd (2008) MLLR, 379. The court should be ready to grant such an
interim relief unlike the monetory one because in case of interim reinstatement, there is no loss
on either party. The employee continues to work and the employer continues to pay him.

The effect of an interim reinstatement is injunctive in nature. It has the effect of restraining the
employer from effecting the decision until the determination of the matter.

The Rules however, do not give any guidance as to what is the standard of proof for one to be
granted the interim relief. The suggestion my be that the common law principles on the grant of
injunctions may be used.

v. Injunction

Chilumpha in his book; Labour Law argues that the court can grant injunction in favour of the
dismissed employee. This however, seems to be a debatable if not doutiful position if one
considers the EA in its totality.

First, unfair dismissal is a statutory wrong. Its remedies are therefore also supposed to be
statutory. Section 63 provides for these remedies and injunction is not part of them.

Secondly, if such a remedy exists, then the same would only be grantable by the High Court
since as earlier on discussed, it has been held that the IRC is not a court of equity and it can not
grant equitable remedies. See: Kankhwangwa vs. Liquidator Import & Export (Mlw) Ltd
(2008) MLLR, 219.

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In deed, the learned author himself does not seem to have cited any case from our jurisdiction
to illustrate the argument.

The IRC can however, grant injunction under the LRA because the same is specifically
provided.

vi. Severance allowance

Severance allowance is not necessarily strictly speaking a remedy for unfair dismissal as it is
awardable even in cases of mutual termination. It has however been discussed here because of
the closeness it has with unfair dismissal.

By section 35(1), on termination of contract, by mutual agreement with the employer or

unilaterally by the employer, the employee is entitled to severance allowance to be calculated
in accordance with the first schedule to the Act.

The Act however, does not define what severance allowance is. This has left it open as to its
definition though the gist largely remains the same. Kapanda, F.E. in his article “Some
Thought on Severance Allowance” in Banda, R.Z: Access to Labour Justice (2007)
attempts to define severance allowance as:

“… an allowance that is paid to an employee where the relationship between an

employer and employee is disconnected. Indeed, it is an allowance that is paid on
disengagement”

On the other hand, in Chimpeni & Others vs. Chibuku Products, Civil Cause No. 3225 of
2002, Kamwambe, J adopted the definition in the Longman Dictionary of Contemporary
English where severance allowance is defined as:

68
 “Money paid by a company to one of their workers losing his or her job through no fault
of his or her own.”

On his part, Chilumpha, in his book Labour Law (2004), defined it as:

“A form of compensation for the termination of the employment relationship, for reasons
other than the employee’s misconduct, to alleviate his consequent need for economic re-
adjustment as well as to compensate him for certain losses attributable to the dismissal.”

The definitions given here may not be entirely correctly or may be largely restrictive.
However, they try to give a picture of what severance allowance is. A clear definition can be
construed from section 35(1) itself.

The computation of the severance allowance under the said schedule shall be considered later.
For now, we shall consider elements of section 35(1).

It has been held that the purpose of severance allowance is to safeguard the employee whose
employment may be terminated abruptly. It also serves as a recognition of the employee’s
contribution to the employers undertaking for the period the employee has been working for
the employer. In Japan International Co- operation Agency vs. Jere (2008) MLLR, 152,
Nyirenda, J stated at 159:

“In my opinion section 35(1) of the Employment Act 2000 is ancillary and
complementary to section 31(1) of the Constitution.

“The spirit of section 35(1) is to provide a safeguard for employees whose services might
abruptly be terminated by an employer. At common law as long as the employer has
terminated an employment contract in compliance with the termination provisions, the
employee to the contract has virtually no other remedy left. Such provisions often cause
unfairness to employees who worked for an employer for a considerably long period. In

69
 most instances in Malawi contracts provide for one month’s notice or one month pay in
lieu of notice. Such contractual arrangements were very common and they created
extreme hardships for employees whose bargaining position was often weaker compared
to that of their employers.

“Section 35(1) in effect compels employers to recognise the commitment and the valuable
contribution which employees make to the work they do. Clearly the provision protects
employees from being told to go with one month’s pay after working for an employer for
a considerable number of years. In the spirit of section 31(1) of the Constitution, section
35(1) of the Employment Act 2000 is meant to protect employees who have long served
their masters and puts a stop to exploitation. It is in this spirit that, in my judgement,
section 35(1) was meant to take on board all the committed employees and all that they
have toiled for in the years past and present.”

This statement was quoted with approval in Blantyre Sports Club vs. R.K. Banda & E.
Mkangala, Civil Cause No. 61 of 2003.

On his part, Chilumpha, justifies payment of severance allowance in the following terms at
452:

“… once an employee is dismissed or his employment is otherwise brought to an end

other than by himself, he is faced with immediate reduction in income and loss of benefits
available to him by virtue of that employment. For that reason unless he is able to get
another job quickly (and that is not always possible), he could easily find himself in a
very serious state of destitution”.

Qualifications for severance allowance

Section 35 itself, it clearly stipulates conditions to be met before one can claim severance
allowance.

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The first condition is that there must be termination of employment. This was duly discussed
under unfair dismissal.

The second condition is that the termination must either be mutual between the employer and
employee or unilaterally by the employer. In Blantyre Sports Club vs. R.K. Banda and E.
Mkangala, Civil Cause No. 61 of 2003, Chimasula Phiri, J emphasized the point in the
following terms:

“Section 35(1) has clearly and without any ambiguity provided for payment of severance
allowance on termination of contract in two situations. First by mutual agreement with
the employer or secondly unilaterally by the employer.”

Mutual termination has been interpreted as to include retirement. The argument here is that
retirement is termination by mutual agreement only that the agreement is made prior to
termination. In Bakasi vs. Sugar Corporation of Malawi (2008) MLLR, 112, Chipeta, J at
118, emphasized the point in the following terms:

“Section 35(1) herein is plain and unambiguous in the way it was framed. To read into it
that it excluded retirees or to presume from logic that the framers could not have
intended to cover this class of people, I think, would be to import into the provision what,
on a plain reading and literal understanding of the provision, is not there.”

See also: Blantyre Sports Club vs. R.K. Banda and E. Mkangala, Civil Cause No. 61 of
2003 and Chimpeni vs. Chibuku Products, Civil Cause No. 3225 of 2002

An employee will not be entitled to severance allowance where he voluntarily resigns from his
work. As Kamwambe, J observed in Chimpeni vs. Chibuku Products (supra). He stated:

“One would lose severance pay if he, as an employee, unilaterally terminates the
contract or resigns but not when he retires at the end of the contract because that is by

71
 mutual agreement and would therefore fall under strict interpretation of the Act No. 6 of
2000”

However, even upon retirement, for an employee to be disentitled from severance allowance,
the retirement must be voluntary. An employee who is forced to retire may still claim
severance allowance.

Commenting on the issue in her book Access to Labour Justice (2007), Banda, R.Z. states at
page 9:

“Resignation must be unilateral termination at the initiative of the employee without

force, coercion or undue influence. The employee must resign at his/ her own accord and
for personal reasons. Where the employee resigns s/he is not entitled to severance
allowance. Resignation under this provision must be distinguished from mutual
termination where both parties agree for one reason or another to sever the employment
relationship.”

Under the said section 35(1), there is no requirement in mutual termination and as such, the
same may equally be initiated by the employee himself. As long as in the end it qualifies as
mutual termination, the employee is entitled to severance allowance. Contrary arguments were
presented in Bakasi vs. Sugar Corporation of Malawi (supra). On the facts of the case, the
Court was of the view that in fact, the argument worked against the Respondent who raised
them since according to the court retirement age is normally fixed by the employer. The Court
however fell short of determining whether that was the true position of the law. Without any
authority, there seems to be no basis at law for such an argument in the face of the clear
wording of the provision.

It should again however, be noted that termination does not become mutual simply because the
employer accepts resignation. Under section 31(4), every person has a right to withdraw
labour. In fact under the provision, the state has an obligation to take measure to ensure
realisation of the right. To this end, an employer cannot force an employee to continue working
for him if the employee is no longer interested. Where an employee decides to resign therefore

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and the employer accepts the resignation, it remains as such and not mutual termination. As
Banda, R.Z. observes in her book “Access to Labour Justice” (supra) at page 9:

“It is not mutual termination just by the mere fact that upon tendering a resignation, the
employer accepted to release the employee. In any case the employer may not refuse an
employee a resignation as doing so would render a contract of employment into a
contract of servitude and subject the employer to criminal liability in the offence of
slavery or forced labour.”

By sub- section 4 of section 35, termination includes termination by reason of insolvency or

death of the employee. It however, excludes termination of a contract for a fixed period where
the period has expired and a contract for a specified task where the task has been completed.
See: Kalowekamo vs. Malawi Environmental Endowment Trust (2008) MLLR, 21.

From the wording of this provision, it would seen severance allowance is payable in cases of
fixed period contract or for contracts for specified task where the contract is terminated before
the expiry of the period or before the completion of the task as long as the employee qualifies
in terms of period requirements under the first schedule.

Again, by sub- section 5, payment of severance allowance, does not affect the employee’s
entitlements to payment in lieu of notice or any award. See: Japan International Co-
operation Agency vs. Jere (2008) MLLR, 152. It does not also affect his entitlement to
pension. See: State & Another, Ex Parte Khawela & Others (2008) MLLR, 283.

However, by sub- section 6, the following people are disqualified from entitlement for
severance allowance:

i. an employee serving probation under section 26

ii. a person who is fairly dismissed for reason related to his conduct (consider section 57)

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 iii. an employee who unreasonably refuses to accept re- employment by the employer at
the same place of work under no less favourable terms than he was employed on.

iv. an employee who is employed by one or more of the partners from the partnership that
employed him immediately before or unreasonably refuses to be so employed on no
less favourable terms.

v. an employee who is employed by the personal representatives, widow, widower or any

heir of his deceased employer that employed him immediately before or unreasonably
refuses to be so employed on no less favourable terms.

The reading of sub- section 7, seems to suggest that severance allowance is payable on the
death of the employee. This however, sounds quiet unjustifiable when one considers the
circumstances in which severance allowance is payable under sub- section 1 and the
justifications given for its payment.

It also has to be noted that severance allowance has retrospective application i.e. it applies even
to those employment contracts that commenced before the Act came into force as long as the
termination happened after. See: Japan International Co- operation Agency vs. Jere (2008)
MLLR, 152.

Computation of severance allowance

As per section 35(1), this is governed by the first schedule to the Act. The said schedule
categorises employees into two depending on their period of service. For those employees who
have worked for not less than one year to ten years, they shall be entitled to two weeks wages
for each completed year of continuous service. For those over ten years, shall be entitled tpo
four weeks wages for each completed year of continuous service.

A number of issues emanate from this schedule.

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First, it would seem a person who has worked for less that a year is not entitled two severance
allowance. When one combines this provision with section 35 (6)(a) it becomes a bit confusing
as to whether computation of a year includes the probationary period.

Another aspect is that an employee will only claim for a year actually completed. See:
Thomson vs. Leyland DAF (Malawi) Ltd (2008) MLLR, 291. In the case, the court refused
to use the multiplier of 33 as the years the Plaintiff had working since he had not exactly
completed 33 years since he had about 2 more months to complete 33 years. The court
therefore used 32 being the years the Plaintiff actually completed.

Thirdly, there must be continuous service. See: Thomson vs. Leyland DAF (Malawi) Ltd
(supra). Presumably, what this means is that if an employee leaves the employment and later
comes back, he cannot claim for the first period.

Another area that has been subject of litigation is as to what the provision as the whole means
when it talks of two or four week’s wages for each completed year of continuous service. At
first, it was thought that the court must determine what was the employee’s wage for each year
and then add up to come up with an aggregate. See: Thomson vs. Leyland DAF (Malawi)
Ltd (supra). This was however, changed by the Supreme Court of Appeal in Stanbic Bank
Ltd vs. Mtukula (2008) MLLR, 54. The Court held in the case that the court must use the last
salary as the multiplicand. One of the rationale the court gave was that it would be ridiculous
for the court to award an employee the salary he earned many years ago since by comparison
such an amount might have been a lot by them whose equivalent may be the present salary.

Another area that has been an area of litigation has been the meaning of the term “wages” as
used in the Act and the schedule in particular. The Mtukula Case, the appellant argued that the
term wages, should be interpreted as to mean the basic salary to the exclusion of all other
allowances. Rejecting the argument, the Court stated at 62:

“Clearly, the words wages, salary and pay are broad enough to cover payments such as
allowances and other benefits made either in cash or in kind.”

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Severance allowance is therefore computable based on the basic salary and all other allowances
whether paid in cash or in kind. The court also held in the case that the works wages, salary,
pay and remuneration can be used interchangeably.

Claims for severance allowance

By sub- section 8 of section 35, a complaint that severance allowance has not been paid, may
be presented to a District Labour Officer within 3 months who may in turn refer it to the court.
It has been held that since the provision uses the term ‘may’ it is not mandatory to present the
issue to the District Labour Office before it can be brought before the Court. See: Khawela &
Others vs. Stanbic Bank Ltd (2008) MLLR, 194

REMEDIES FOR WRONGS SHORT OF DISMISSAL

Apart from dismissal, the employer may be guilty of other employment wrongs over which the
employee may have claims. The may be for example breach of fair labour practices.

Remedies for such wrongs may include:

i. Compensation- Nazombe vs. Malawi Electoral Commission, 460

ii. Order for continued status quo- Nazombe vs. Malawi Electoral Commission, 460

iii. Common Law damages for the High Court- Nazombe vs. Malawi Electoral
Commission, 460 and Fred Nkhwazi vs. Malawi Distilleries

iv. Further, by section 7 of the EA, where there has been breach of Part II of the Act, the
Court has wide discretion on the remedies it can give including re-instatement and
restoration of any benefit and payment of compensation.

v. Probably injunction for the High Court

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OTHER TERMINAL BENEFITS

The employer may also be required to pay other contractual terminal benefits such as pension.
These however, as stated are contractual.

By section 53(1) of the EA, wages and other remuneration due to the employee on the
termination or completion of his employment must be paid within 7 days from the termination
or completion.

By sub- section 2, benison due, must be paid within 6 weeks.

It has however, been held that mere delay in paying terminal benefits does not of itself entitle
the employee to interest on the same. See: Kankhwangwa vs. Liquidator, Import & Export
Malawi Ltd (2008) MLLR, 26

EMPLOYER’S RIGHT TO IMPOSE OTHER DISCIPLINARY ACTIONS

This is governed by section 56 (1) and (2) of the EA.

Sub- section 3 imposes some limitations.

Sub- section 5 stipulates things to be considered as to whether the employer acted reasonably.

It should also be noted however, the employee still has the right to be heard before a
disciplinary sanction is imposed on him.

12. ACTORS IN INDUSTRIAL RELATIONS

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Under this topic, we shall consider various actors that are involved in the industrial relations. In
particular, we shall consider trade unions, employers’ associations, joint consultative
committees and the government.

i. Trade Unions

Definition

By section 2, a trade union is defined as ‘any combination of persons, the principal purposes of
which are the representation and promotion of employees’ interests and the regulation of
relations between employees and employers, and includes a federation of trade unions but not
organisation or association that is dominated by an employer or employers’ organisation’.

From the definition, what makes the trade union one, is the purpose. Again from the definition,
a trade union can be a single entity or a federation of them e.g. MCTU

Registration of trade unions

By section 11(1) of the LRA, the rights conferred on the unions by the Act, can only be
exercised by a duly registered union.

By section 11(2) a trade union requires at least 7 members to be registered. The wording of the
provision however, sounds a bit problematic. It seems to suggest that there must already be in
existence a trade union (though not registered) for the same to be registered. One would
wonder whether people cannot organise themselves there and then and proceed to registration
before first being unregistered trade union.

When applying for registration, the applicants, shall submit together with the application form
two certified copies of the trade union rules and the registration fees.

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Section 11(3) lists things the Registrar may consider whether to register the trade union or not.
These include: compliance with the things to be submitted, whether its name does not resemble
the name of another union. This is similar in almost all the entities e.g. Aford vs. Gaford and
RP vs. NRP, whether the rules comply with statutory requirement (under section 13), whether
the rules of the organisation are discriminatory in which case it will be rejected.

By section 11(7), upon registration, the Registrar , shall issue the certificate.

By section 11(5), where the registrar refuses the application, he must notify the applicants
stating the reasons for refusal and giving the applicant 30 days to comply with the
requirements.

Effect of registration

Upon registration, the trade union becomes a body corporate with capacity to contract and hold
property and sue or be sued in its own name- Section 12(1).

Rules of the trade union

These are governed by section 13 and must include things such as the name of the union, the
principal objectives, registered office, membership qualifications, disciplinary procedure,
disqualifications, elections, meetings etc. (Read the section).

Amendment (alteration of the rules)

This is governed by section 14.

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By section 14(1), this can only be done by a resolution of the members.

By sub- section (2) within a month of the resolution, the union must send two copies of the
resolution, a statement signed by the union official certifying compliance with the rules when
passing the resolution and copies of the amended rules.

The Registrar subjects the amended rules to the same tests as the original rules and if they pass
the tests, shall duly certify them.

Change of name

This is governed by section 15.

By sub- section 1, change of name, must be by a resolution duly passed by the majority.

Within a month of the resolution, the union must send copies as referred to under amendments
to the Registrar.

The Registrar shall again subject the name to the legal requirements as if it came for the first
time and if it passes the test, he shall certify the change and issue a new certificate.

De- registration

By section 21 a union can be de-registered by:

(i) Resolution of the union upon the Registrar making due inquiries e.g. as to debts

(ii) Order of the Court if the union is unable to continue as such. The provision
however, does not state as to who must move the court.

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 (iii) Where the Registrar has reasons to believe that the union is unable to continue or
has ceased functioning. He shall in such case, give the union 30 days to show cause
why the union should not be deregistered.

The role of the court

(i) By section 23, any member of the union can apply to the IRC to enforce compliance
with the rules of the union or the provisions of the Act.

Further, by section 24, any person aggrieved by the decision of failure to make decision of the
Registrar, my appeal to the IRC against the decision or to compel the making of the decision.

Statutory rules governing trade unions/ some features of trade unions

(i) Membership is optional- section 4

(ii) It must be non- discriminatory- section 7

Rights of the union members/ officials

(i) To be represented by the union in cases of disciplinary action by the employer-

section 40

(ii) To participate in the activities and decisions of the union- e.g. voting

(iii) To access the union’s books and financial statements- section 18

(iv) For the officials, to have access to the employer’s premises for union purposes. The
employer may however, impose reasonable conditions e.g. as to time for as not to
disrupt the employer’s business- section 35

For more on Trade Unions, read Chilumpha; Labour Law

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 ii. Employers’ organisations

Definition

This is defined in section 2 as ‘any combination established by employers, the principal

purposes of which are representation and promotion of employers’ interests and the regulation
of relations between employers and employees.’

By section 11(2) of the LRA, the minimum number for people to form employers’ organisation
is 2.

The provisions as regards registration, effect of registration, rules, amendments, change of

name and de- registration are the same as the trade unions.

iii. Government

The Government participates through various offices e.g. the office of the Registrar (as already
discussed), the Principal Secretary for Labour (as will be considered under dispute resolution),
the Minister responsible for Labour for the establishment of the Industrial Council (under
collective bargaining), Government as employer in which cases, some rules may apply
differently from private employers (e.g. in dispute resolution), the Labour Office and probably
the IRC, Tripartite Labour Advisory Board (this is established under section 55 of the LRA and
its functions are listed under section 58. In brief, its role is to advise the minister on labour
issues both national and international including consideration of ratification of labour
instruments) etc.

13. COLLECTIVE BARGAINING

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Definition

Though the law recognises freedom of contract, in practice, an employee is normally in a

weaker position than the employer. This is so largely because it is normally an employer who
determines terms of the contract and the employee is given the same as an offer. The
employee’s option is therefore either to accept the offer of reject it. As Chpeta, J stated in
Bakasi vs. SUCOMA (2008) MLLR, 112 at 117:

“Indeed in the normal employment situation it is the employer who draws up the contract
and fills it up with terms of its choice….. The employee ordinarily has no say on such
matters. Normally he just accepts and signs.”

It is more than trite law that an offeree cannot vary terms of the offer otherwise the offer is
deemed terminated. In such a situation, it is clear that the employee’s choice and bargaining
power is very limited.

This is even more aggravated by the fact that the employer has a rule- making right regulating
the mode of work.

Recognising this deficiency, the law recognises the doctrine of collective bargaining.
Collective bargaining has been defined as “negotiations between an employer, a group of
employers or one or more employers’ organisations, on the one hand, and one or more
employees’ organisations or employees’ representatives, on the other for determining working
conditions and terms of employment and regulating relations between employers and
employees or between employers or their organisations and employees’ or employees’
organisations.”- Article 2 of the ILO Collective Bargaining Convention

Chilumpha, Labour Law, simplifies the definition as “the rule-making process by which
management, on the one hand, and the representatives of the workforce, on the other in an
enterprise or sectors, come together to deal with matters relating to the employment
relationship and industrial relations in general”- at page 541

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Pre- requisites to collective bargaining

By section 25(1) of the LRA, where at least 25% of the employees of one employer whether at
the same place or different places or 25% of a category or categories thereof are members of a
trade union or two or more trade unions acting jointly, such employer shall recognise such
trade union or trade unions for the purposes of collective bargaining.

For this purpose, the term employees exclude senior managerial staff. However, by sub-
section 3, where the senior managerial staff considered separately also fulfils the above
conditions, their trade union or such jointly acting trade unions shall also be recognised by the
employer.

By sub- section 6, where the trade union or trade unions so acting jointly has a right to be
recognised, either party can give notice of collecting bargaining and the same shall be done
within 60 days from the receipt of the notice.

NB: This provision regulates collective bargaining between a trade union and a single
employer.

By section 26(1) and (2), a trade union or more acting jointly representing employees in a
particular sector, may request an employers’ organisation or more acting jointly in that
particular sector to enter in to collective bargaining or vice versa.

By sub- section 3, the party so requested, shall give reply within 60 days.

By sub- sections 4 and 5, where the requesting party (whether as single or acting jointly) has a
representation of at least 15% of the employees (in case of trade unions) or 15% of employers

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(in case of employers’ organisation) and the other party does not reply within 60 days or turns
down, the request, the requesting party may apply to the minister responsible for the
establishment of the industrial council.

NB: This provision regulates bargaining between trade unions and employers’ organisations

Composition, meetings and functions of the industrial council

By section 27, upon the request referred to above, the Minister if satisfied that the above
discussed procedure has been complied with, may establish the industrial council and the
decision shall be communicated to the parties within 21 days.

By section 28, the council shall comprise of the proposed parties to the collective bargaining
and any other interested party (i.e. trade union or employers’ organisation within the sector)
that may apply and be admitted by the minister.

By section 29, the first meeting of the council shall be convened by the minister within 60 days
from the date on the establishment of the council.

At the first meeting, the council must agree on the modalities of the transaction of their
business. This includes appointment of the representatives (who must be half from each party),
mode of decision making and admission of the new parties.

By sub- section 4 of section 29, the council shall meet once a year unless the parties agree
otherwise. What this means is that once the council has been established, it is not an ad hoc
council but a permanent one.

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By section 30, the functions of the industrial council include:

(i) Negotiating wages and conditions of employment

(ii) Establishment of dispute resolution machinery and

(iii) Developing the industrial policy of the concerned industry

Terms, enforceability and effect of collective agreements

By section 32, the parties to collective may agree on any terms they deem fit but such
agreement must as of mandate include:

(i) Be in writing and be signed by the parties

(ii) Contain the date on which it shall take effect

(iii) Contain procedures for the avoidance and settlement of disputes and

(iv) Not contain any conditions less favourable than those contained in the Act or any
other written law. Presumably, any such provisions would be void.

By section 33, terms of the collective agreements, bind:

(i) Parties to the same

(ii) Employees who are or become members of the party trade union to the extent that
the agreement relates to them

(iii) Employers who are or become members of the party employer organisation to the
extent that the agreement relates to them.

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The major effect of collective agreements is that by section 33(2), the terms of such an
agreement are deemed to be incorporated into the employment contract of each employee who
is covered by the same.

Further, by section 39, where the business is sold, leased, transferred or in any way disposed of
whilst the proceedings are underway, the purchaser, lessee or transferee is bound by the same
and where the agreement had already been reached, he is bound by the terms thereof.

By section 31, each party to the negotiations is under duty to negotiate in good faith and by
section 38, where there is collective bargaining, the employer is under duty to supply to the
trade union all the necessary information including where necessary, the employer’s financial
position so as to help the trade union bargain effectively.

The employer is not however, under obligation to disclose such information as is:

(i) Legally privileged

(ii) Would invade on any of the employees privacy unless the employee consents

(iii) Trade or commercial secrets.

Any such information obtained by the trade union shall not be disclosed to third parties
without the consent of the employer.

14. DISPUTE RESOLUTION

Definition of a dispute

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Under this topic, we consider the process the law has set down in solving industrial disputes
between the employer and employee(s). The need to resolve disputes amicably in the industrial
world can not be over-stated as it is the best way to avoid break- down of the employer’s
undertaking.

By section 42 of the LRA a dispute has been defined as “any dispute or difference between an
employer or employers’ organisation and employees or trade union, as to the employment or
non- employment, or the terms of employment, or the conditions of labour or the work done or
to be done, of any person, or generally regarding the social or economic interests of
employees.”

From the wording of the provision, it is clear that the definition is quiet broad. Some aspects
from the definition however, include:

(i) Dispute may emanate from actual dispute or mere difference. Since dispute may
just be a difference, there is no need that there should actually be temper rising. As
long as there is difference on certain aspects, it will suffice as dispute. See:
Nyasaland ailways vs. Nyasaland Staff Council & Asian Union (1961-63) ALR
(Mal) 297 and Beetham vs. Trinidad (1960) AC 132

(ii) Secondly, such dispute can be between any combination of employer or employers’
organisation on one hand and employees or trade union on the other hand.
Certainly, and employer may be an individual. In the same vein, from the
definition, differences between trade unions and their members or employers’
organisations and their members, will not qualify under the definition.

(iii) Thirdly, the dispute may concern the employment or non- employment, or terms of
employment, or conditions of labour or work done or to be done. The concept of
employment or non- employment may be for example where a person attended the
interviews but was may be left on discriminatory grounds. Certainly, there is non-
employment and a trade union in that sector can pick up such an issue.

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 (iv) Fourthly, the issues referred to in paragraph (iii) may be of ‘any person.’ This
wording does not seem to restrict that the victim must be a member of the union or
actually an employee of the employer. Indeed the example in (iii) illustrates this.

(v) Fifthly, the dispute may also be generally regarding the social or economic
interests of the employees. Unlike the others which may be for ‘any person’, the
social and economic interests must specifically be for the employees.

Reporting of disputes and conciliation procedure

By section 43(3), any dispute, whether existing or imminent may be reported to the PS for
labour by or on behalf of any of the parties to the dispute. A number of elements arise from
section 43(1).

First, it is not mandatory for the parties to seek reconciliation. The provision uses the term
‘may’. This was affirmed by the court in Malawi Telecommunications Ltd vs. Malawi Posts
& Telecommunications Workers Union, Civil Cause No. 2721 of 2001.

Secondly, the dispute need not be actual. It can be imminent.

Thirdly, the reporting can be made by or on behalf of the parties. The provision however does
not give clue as to who may act on behalf of the parties. Certainly, where the dispute is
between the employer and employee, then the employers’ organisation or trade union may
report. There seems however, nothing in principle for any third party to do so. However, since
the reporting must be ‘on behalf’ of a party, the suggestion would be that the reporting must be
with the approval of the party.

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By section 43(2), every party reporting the dispute must send a copy of the report to the other
party and by sub- section3, must acknowledge receipt of the report in writing within 7 days.

By section 44(1), where the report dispute has been so reported, the PS or any person
appointed by him shall endeavour to reconcile the parties. The PS must however satisfy
himself that dispute resolution mechanisms established under collecting agreement (where one
exists) have first been exhausted. The parties may however, waive such mechanisms.

By sub- section 2, however, where one of the parties is government including any public
authority or commercial enterprise in which the government has a controlling interest, it shall
be the parties themselves to agree on the conciliator and not for the PS. See: Malawi
Telecommunications Ltd vs. Malawi Posts & Telecommunications Workers Union
(supra)

Where the parties fail to agree on the conciliator, then any one of them, may apply to the IRC
and the IRC shall designate (appoint) and independent arbitrator.

Any conciliation whether where the government is involved or not, must be completed within
21 days from the receipt of the report by the PS unless the parties agree to extend time.

Unresolved disputes

By section 44(5) a dispute shall be deemed unresolved where:

(i) A party fails to attend conciliation proceedings

(ii) The parties after the conciliation proceedings fail to agree.

By section 45, where there is unresolved dispute, then, in cases where the dispute concerns (i)
the interpretation or application of any statutory provision or any collective agreement or

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contract provision or (ii) an essential service, then either party to the dispute or the PS for
labour in the second case may apply to the IRC for determination.

Essential services are defined in section 2 as “services, by whomsoever rendered, and whether
rendered to Government or to any other person, the interruption of which would endanger life,
health or personal safety of the whole or part of the population.”

But where the dispute does not fall in the above two categories, then, (i) where the parties
agree, the matter may be referred to the IRC for determination or (ii) either or both parties may
give notice of intention to strike or lock out. The notice here is regulated by section 46 to be
considered under industrial action.

Subject to section 65(2), the decision of the IRC is final here- section 45(5).

However, where after conciliation or arbitration the parties agree, the agreement shall be put
into writing and signed by the parties and conciliator or arbitrator as the case may be- section
44(6). Such an agreement shall come into force on the date it is signed unless the parties agree
otherwise- section 44(7).

15. INDUSTRIAL ACTION

The LRA does not define industrial action. It does however, define specific types of industrial
actions. Industrial action may however, loosely be defined as an action taken by the employer
or employees collectively in order to influence the other party as regards employment
conditions or other employment related issues.

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The effectiveness of industrial action lies in the fact that though a single employee may be
unable to influence his employer, where the pressure is asserted collectively, the employer is
likely to act and since most often industrial action entails withdrawal of labour, there may be
even more pressure from service beneficiaries.

The major modes of industrial actions are strike and lockout.

i. Strike

A strike is defined in section 2 as “concerted action resulting in a cessation of work, a refusal

to work or to continue to work by employees, or a slow down or other concerted activity of
employees that is designed to or does limit production or services, but does not include an act
or omission required for the safety or health of employees, or a refusal to work under section
52.”

From the definition, a number of elements come out:

First, it is clear that strike is the employees’ and not the employers’ action.

Secondly, strike does not necessarily have to be total break down of the employer’s business. It
may just slow down or limit the employer’s production or services. This may take the form of
(i) what has been termed “go slow” where the employees work but deliberately slow down the
processes and production, (ii) “work-to-rule” where the employees do only that which is in
their contract and nothing more including work only as per the designated times irrespective of
the danger this may cause (iii) “work stoppage” where employees may be creating deliberate
breaks within working period (iv) “overtime ban” where employees work no more than within
their prescribed times irrespective of the dangers. This may be an extension of the “work to
rule” principle.

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Thirdly, the term excludes omissions for safety measures and refusal to work under section 52.
The section deals with refusal by an employee to do the work of another employee who is on
strike.

ii. Lockout

This is the employer’s reciprocal right. Lockout is defined in section 2 as “closing a place of
employment, a suspension of work by an employer, or a refusal by an employer to continue to
employ or re- engage any number of his or her employees, done to compel his or her
employees, or to aid another employer to compel his or her employees, to agree to terms or
conditions of, or affecting employment.”

Just as under strike, a number of elements arise from this definition.

First, the right to lockout is for the employer and not employee.

Secondly, lockout may take the form of closing place of employment, suspension of work or
refusal to continue employ or re- engage a number of his or her employees (without necessarily
closing the place of work).

Thirdly, the lockout may be for the purposes of compelling the employer’s own employees or
to aid another employer.

Fourthly, just as in strike, the purpose should be to compel the employees to agree to terms or
conditions of, or affecting employment.

Of more interest under the provision is that it allows the employer to lockout his employees in
aid of another employer. This seems to be against common sense that innocent employees
would be locked out. The constitutionality of the provision would also be questionable.

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Further, since the employer refuses to employ or re-engage the employees, the provision is not
clear as to whether the employees are entitled to remuneration during a lockout.

Procedure and restrictions on industrial actions

First, by section 46(1), there can be no industrial action unless where there is unresolved
dispute as defined under section 45.

Further, by section 46(2) a party cannot take an industrial action unless the conciliation
procedures as laid down under section 44 have been complied with.

By the same sub- section 2, a party cannot take industrial action where the unresolved dispute
has been referred to the IRC for determination under section 45.

Further, by section 46(3) a party shall not take an action unless upon giving 7 days notice to the
other party and to the Principal Secretary for labour.

Again, by section 47(1), a party may not engage in industrial action in connection with
essential services (essential services were defined already).

Immunity, benefits and rights connected to industrial action

By section 49, no civil proceedings my be brought against an employer, employee, trade union,
employers’ organisation or a member thereof in respect of any strike in conformity with the
Act, or any act not constituting a criminal offence committed by such a person or organisation
in furtherance of such strike or lockout.

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A number of issues emanate from this provision.

First, the immunity only applies where the strike or lockout is in accordance with the
provisions of the Act and not otherwise.

Secondly, the immunity only applies to civil proceedings and not criminal proceedings. (no
civil ……)

Thirdly and arguably, civil proceedings may still be brought against such person where they
are based on an act which is also criminal in nature (No civil proceedings shall be brought …..
or any act not constituting a criminal offence…)

Fourthly, the immunity applies only where the act was done in furtherance of the strike. This
would best be determined by looking at the statutory purpose of the strike.

Again, by section 48, terms of any collective agreement and those of individual contracts, shall
not be deemed breached by reason only of a party’s involvement in the industrial action.

The vital expression here is ‘by reason only’. Arguably, this means that if there is more that
mere participation, then the contract may be deemed breached. So for example where the
employee commits a crime under the pretence of participating in the industrial action. His
employment contract may be deemed breached.

Further, by section 50, after the end of the industrial action, the employer is under duty to take
back onto the same position the employee who presents himself for work ‘unless material
changes to the employers’ operations have resulted in the abolition of such employment.’

The wording of this provision exposes the employees as in some cases, the employer may
refuse to take them back. The protection is to some extent however, provided under sub-

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section 2. T he sub- section provides that nothing in the section exempts an employer from
ensuring that the termination complies with the provisions of the Employment Act.

By section 51(1) an employer shall not employ temporal employees to do the work of an
employee involved in an industrial action unless such work is necessary to maintain minimum
maintenance services.

By sub- section 2, minimum maintenance services are to be defined in the collective agreement
but where there is none or the same is not defined, the same shall be those services the
interruption of which would result in material damage to a working area or machinery.
Certainly, this provision excludes disruption of business.

Further, by section 52, an employee who is himself not involved in an industrial action, has a
right to refuse to do any of the works which would ordinarily be done by another employee
involved in an industrial action.

iii. Picketing

Since the efficiency of industrial action is normally in numbers, it is allowed for any person
involved in an industrial action to mobilise support for the same.

By section 53, ‘where such presence in furtherance of a lawful strike or lockout, it shall be
lawful for a person to be at or near his or her place of work or former place of work or place of
business of the employer or former employer for the purposes of peacefully communicating
information or peacefully persuading any person (i) not to enter that place of work or business
(ii) not to work (iii) not to deal or handle that employer’s products and (iv) not to do business
with the employer.

By sub- section 2, the right extends to the members of the trade unions or employers’
organisations whose members are involved.

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However, a number of elements also arise from this provision:

First, the presence must be in furtherance of the industrial action.

Secondly, the industrial action must be lawful.

Thirdly, the conduct itself must be peaceful.

Remedies for violation of provisions for a lawful industrial action

By section 54, any party alleging non- compliance with the provisions, may apply to the IRC
for an injunction.

By sub- section 2, (i)the application must be made inter parties, (ii) the other party must be
afforded an opportunity to be heard and (iii) there must be 48 hour period between the service
and the hearing unless where the IRC is satisfied that the acts in question would endanger the
life, safety or health of any person.

Further, due to the limitations of the immunity as discussed above, there seems to be nothing in
principle to hold any person e.g. employee or employer or member of organisation liable for
illegal industrial action. For specific liabilities, see Chilumpha.

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