IN THE INDUSTRIAL
RELATIONS COURT OF MALAWI

PRINCIPAL
REGISTRY

MATTER NO. IRC
113 OF 2002

BETWEEN:

LINNA SHEHA (Ms.)
……………………………………… APPLICANT

-And-

MALAWI REVENUE
AUTHORITY …………………… RESPONDENT

CORAM:

R. ZIBELU BANDA
(Ms.) DEPUTY CHAIRPERSON

Linna Sheha,
Applicant

Mpango for
Respondent

Ngalauka, Court
Clerk

JUDGMENT

(Termination
of services of a person serving probationary period; justification
for termination.)

The
applicant commenced this action seeking redress for unfair
termination of her services. She was employed by the respondent as
Assistant Officer, Human Resource, Grade MRA 9, on 14^th
February 2000.  She was put on probation for twelve months from
February 14, 2000. Her services were terminated on 12^th
February 2001. The reason for termination was that her services were
no longer required at the respondent’s Authority.

The
applicant believed that her services were still required because her
post existed at the Authority’s staff establishment. In
response,
the respondent explained that although the post may have existed, it
did not necessarily mean that they had to fill or
maintain it. The
respondents were not obliged to maintain the applicant if the
operational needs did not require her services in
that post.

The
applicant in both her written and oral submissions asserted that her
termination was unfair. Her fundamental rights to equal treatment
and
right to employment had been violated. She said this because the
procedure to terminate her services was flawed.

Firstly, she
contended that the respondent did not comply with the Employment Act
2000 (hereinafter referred to as the Act) especially
sections 57, 58
and 61 of the said Act.

Secondly,
she alleged that the respondent violated Condition 31 contained in a
document titled: Malawi Revenue Authority (MRA): Staff Manual.
This document she asserted contained terms and conditions of
employees of the respondent Authority.

THE
LAW

The
Employment Act 2000 provides in section 26(2) that:

“During a
probationary period, a contract of employment may be terminated at
any time by either party without notice.”

The
effect of this section is that unlike confirmed employees, employees
on probation are not entitled to notice before termination
of their
services. However the section does not provide any other procedure
for termination of services of persons on probation.
It is presumed,
therefore, that the general procedure on termination of services as
provided in the Act applies equally to employees
on probation. This
is buttressed by the fact that the Act does not provide a different
definition of employee for those on probation.
An employee is defined
as a person who offers his/her services under a contract of
employment.

The
applicant stated that the respondents had not complied with sections
57, 58 and 61 of the Act. In relevant parts section 57 states
as
follows:

Section 57
(1) “The employment of an employee shall not be terminated by
an employer unless there is a valid reason for such termination
connected
with the capacity or conduct of the employee or based on
the operational requirements of the undertaking.”

Section
57(2) “The employment of an employee shall not be terminated
for reasons connected with his capacity or conduct before the
employee is provided
an opportunity to defend himself against the
allegations made, unless the employer cannot reasonably be expected
to provide the opportunity”

While
section 58 provides that if an employer does not comply with section
57, the dismissal shall be unfair. Section 61 states that
if an
employer fails to provide a reason for dismissal the dismissal shall
be presumed unfair.

The effect
of these sections is that although the applicant was not entitled to
notice she was entitled to know the reasons for her
termination of
services and the respondents were obliged to provide the applicant an
opportunity to defend herself.

The
respondents asserted that they did not need the services of the
applicant. The reason was that due to their operational needs,
they
did not intend at that time to fill or maintain the applicant’s
position although the post existed. To this effect, it was
further
submitted that the respondent did not require the applicant to carry
out the work that she was employed so to do. This was
a valid reason
for purposes of the operational requirements of the Authority at the
time.

Having
proved that there was a valid reason to terminate the applicant’s
services, the respondents had to answer whether they provided
an
opportunity to the applicant to defend herself. Section 57(2) above
comes in point. According to that section an employer is obliged
to
afford the opportunity where the reason for termination is related to
capacity or conduct of the applicant. This was not the case
according
to the facts before the court. The reason for termination was neither
related to the applicant’s capacity nor conduct.
Therefore the
respondents had no duty to comply with section 57(2). In any case,
what allegation would the applicant be defending
herself from?

Particulars
of Employment

The
respondent objected any reference to the MRA Staff Manual
because he said this was not an approved document containing terms
and conditions of service of staff at MRA. The court finds, however,
that the respondent has a legal obligation under section 27 of the
Act to issue to its employees a written statement containing
particulars
of the main terms and conditions of employment. The
respondent could not produce any written statement of particulars of
employment
to guide this court. In the absence of such particulars
the court resorted to condition 31 of the MRA: Staff Manual,
which, states as follows:

“Prior
to the termination of any probationary employment the employee shall
be informed on the areas of incompetence or inefficiency
and may be
granted an opportunity to improve his performance in relation to such
areas and generally”

The
condition applies to situations where the employee on probation is
accused of incompetence or inefficiency. It is clear that the
reason
for termination of applicant’s services was not related to
incompetence or inefficiency. Even if the reasons for termination
had
been incompetence or inefficiency the respondents would not be
compelled to provide that opportunity for improvement. This is
because the condition is not mandatory, as, the action word is “may
grant”.

It is trite
law that an employer cannot be forced to engage or maintain an
employee. This is why every contract of employment has
provision for
termination of services at the initiative of either party. As long as
the provisions for termination are complied with
there is nothing
that even a court of law can do. To this effect, it is said that:

“It is not
practicable to make an employer and employee work together in
circumstances where one of the parties is not prepared to
continue
the relationship: To order continuation of a contract of employment
would be to
turn contracts of service into contracts of slavery.”

(Dismissal
Law: A Practical Guide For Management, 1991.)

FINDING

The court
finds that the applicant’s termination of contract of employment
was in accordance with the law. There was no violation
of sections
57, 58 and 61 of the Employment Act 2000. There was also no violation
of the MRA
Staff Manual.
The claim for unfair termination of services must fail. 

Pronounced
in open court this 2nd day of
October 2002 at LIMBE.
 

R. Zibelu Banda (Ms.)

DEPUTY
CHAIRPERSON