Retirement for misconduct: justice, mercy or a procedural shortcut?

By Godfrey Kenneth Beni:

Across many sectors in Malawi, a discreet yet concerning trend is emerging: the utilisation of compulsory retirement as a disciplinary measure for misconduct. While the intent may be benevolent, the legal and procedural implications are considerable. Take for instance, an incident involving a healthcare professional who is faced with an allegation of accepting money from a patient’s relative and engaging in a dispute with a guardian. The disciplinary hearing committee advocates for dismissal. Nevertheless, the appointing authority countermands this recommendation, opting instead for compulsory retirement effective immediately. The justification provided? The employee’s extensive tenure.

It is essential to first recognise the aspects in which the employer is alleged to have acted appropriately. The allegations in question are grave. Accepting funds from a patient’s relative— if the allegations are too, that is—could erode public confidence in healthcare services. Engaging in a dispute with a guardian—also as alleged—indicates inadequate professional conduct. According to the Employment Act (2000) of the Laws of Malawi, such misconduct warrants summary dismissal without the necessity of progressive disciplinary warnings.

Furthermore, the employer is alleged to have endeavored to facilitate a hearing. By selecting compulsory retirement rather than outright dismissal, the employer arguably safeguarded some of the employee’s benefits that could otherwise be forfeited.

Nonetheless, this approach raises legal issues. Compulsory retirement is conventionally reserved for reasons related to age, medical incapacitation or organisational restructuring—not as an arbitrary penalty for misconduct.

However, the more profound concern lies not in the term “retirement” but, rather, in procedural fairness. The Employment Act (2000) applies to the public and private sector alike: “An employee’s employment shall not be terminated for reasons associated with his or her conduct before the employee is afforded an opportunity to defend himself or herself against the allegations.”

In this particular scenario, the employee was reportedly penalised in part for failing to attend a hearing. However, was the invitation properly communicated? Did the employee receive the opportunity to justify their absence? Can a negative determination be based solely on non-attendance? Such inquiries are frequently left unaddressed. Compounding the issue, many termination letters fail to mention the right to appeal.

Nevertheless, the law does offer a recourse. The Employment Act (2000) entitles an employee who believes their employment was been unjustly terminated to lodge a complaint with a District Labour Officer within a three-month timeframe. Such a complaint may lead to mediation, arbitration or referral to the Industrial Relations Court. A considerable number of public servants are unaware of this provision due to the fact that termination letters seldom inform them.

What is the status of the Malawi Public Service Regulation (MPSR), which is often referenced in discussions of this nature? The MPSR constitutes an existing regulatory framework which was established prior to the enactment of the Employment Act (2000). In instances where the two regulatory frameworks are at odds, the Employment Act generally assumes precedence.

The MPSR is deficient in providing explicit guidance concerning proportionality, the rights of employees who do not attend hearings or the presence of obligatory appeal mechanisms. This lack of clarity affords employers excessive latitude in their decision-making. Nonetheless, it does not negate employees’ rights as delineated under the Employment Act. Some observers might inquire: does an employer not possess the right to exercise firm measures? Indubitably.

Summary dismissal for acts of serious misconduct is legally permissible. An employee who declines to attend a hearing may, under certain conditions, be construed as forfeiting their right to present a defence. The core issue is not that employers engage in malfeasance. Rather, the challenge lies in the employment of an ambiguous legal instrument rather than executing a straightforward dismissal accompanied by appropriate notification of appeal rights, which fosters confusion and opens the door to legal contestation. What modifications are necessary?

Three principal changes are warranted. First, public service regulations ought to be revised to ensure conformity with provisions of the Employment Act, which should incorporate compulsory appeal provisions in every termination correspondence. Second, employers must undergo training to differentiate between lawful summary dismissal and the potentially improper application of “retirement” as a punitive measure. Third, employees must be informed of their rights – including the three-month period available for lodging a complaint.

Let us confront the issue candidly. Serious misconduct warrants severe repercussions. However, the method of administering punishment is as significant as the punishment itself. A determination that precludes an employee from the opportunity to defend themselves, or neglects to apprise them of their legal entitlements, does not constitute a just resolution – regardless of the gravity of the accusation.

Retirement is intended for considerations of age and health. Misconduct necessitates a fair adjudicatory process and a lawful sanction. Conflating the two does not exemplify clemency. Instead, it reflects a framework in need of more precise regulations and a heightened respect for procedural justice.