By Godfrey Kenneth Beni:
Section 31 of the Constitution of the Republic of Malawi is the embodiment of fundamental labour rights.
Section 31(1) provides that “every person shall have the right to fair labour practices”.
It is notable that Section 31(1) confers the right to fair labour practices on every person.
The question, however, is whether the said section has broadened the scope of the right to fair labour practices beyond the employment relationship.
Since the constitutional right to fair labour practices is claimable by every person in an employment relationship, it follows that employers, trade unions, workers’ committees and employer organisations can also be victims of unfair labour practices.
However, in practice, the statutory concept of unfair labour practices does not provide employers and employer organisations with a cause of action, or remedy, for unfair employee conduct.
It is a concept that was introduced mainly to provide employees with protection as it was viewed that employers enjoy greater social and economic power than employees.
Such a concept leaves the employer vulnerable to acts, and omissions, of unfair labour practices by the employee and/or their representatives.
How, then, can we define an unfair labour practice? An unfair labour practice means any unjust act or omission that arises between an employer and an employee, involving: (1) the unjust or unreasonable conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee.
An example of unfair conduct related to workplace benefits would be when all except one of the employees are given a transport allowance; (2) the unjust suspension of an employee or any other disciplinary action short of dismissal in respect of an employee.
A suspension becomes an unfair labour practice if the employee is on suspension for an unreasonably long period and there is no plausible reason for the delay in finalising the enquiry; (3) the failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement.
For instance, an employer retrenches an employee with a contract in place that states that the employee will be re-employed should the same position become available after retrenchment and the employer hires someone else instead.
Other acts, or omissions, of the employer that can be considered as unfair labour practices by the employer include but are not limited to: Transferring an employee mala fide from one place to another under the guise of following management policy; employing individuals as casuals or temporaries and to continue regarding them as such for years, with the object of depriving them of the status and privileges of permanent employees; discharging or discriminating against any employee for charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.
Others are discharging or dismissing an employee in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste by falsely implicating an employee in a criminal case on false evidence or on concocted evidence; insisting that individual employees, who are on a legal strike, sign a good conduct bond as a pre-condition to allowing them to resume work.
There are several acts and/or omissions from the side of employee and their representatives that can be categorised as unfair labour practices, in which case the employer is a victim. Some include advising or actively supporting or instigating any strike deemed to be illegal under labour relations laws; picketing in such a manner that non-striking workmen are physically debarred from entering workplaces.
Not only that; others include indulging in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking workmen or against managerial staff; staging demonstrations at residences of employers or managerial staff members; indulging in acts of force or violence or holding out threats of intimidation against any workmen with a view to prevent them from attending work.
All these are mostly overlooked in the application of the right to fair practices and the employer is mostly slapped in the face.
There is, therefore, a need for law interpreters to interpret the right to fair labour practices broadly, purposively and in a manner that promotes values and principles of the Constitution.
Additionally, there is a need for the Employment Act to be amended and make provision for unfair labour practices which have been omitted from the Act. Certainty and clarity on the scope and nature of unfair labour practices could be further secured if the Employment Act provides practical guidelines on the standard of fairness that must be applied when considering the fairness of employee’s conduct which is not covered by the Employment Act.
The author is a Human Resources Practitioner currently working as HR Manager for Rab Processors Group and he writes on Labour Relations.