CDD regulados: Si

Razones de utilización legítima de CDD: sin restricción

Remarks

Employment Act (Amendment) No 15 of 2015 introduced sections 28A, 28B and 28C to the principal Act, regulating short term and fixed term contracts. A fixed-term contract is, according to Section 3 EA, as amended by section 2(a) of 2015 Amendment, a contract of service for:

a) a period exceeding twelve months, renewable for a further term, subject to section twenty-eight C; or
b) the performance of a specific task or project to be undertaken over a specified period of time; and whose termination is fixed in advance by both parties.

Note that there is a thin difference between the categories of “casual employeeu201d, “short-termu201d worker and “fixed-term contractu201d: Where a casual employee continues to be employed after the expiration of 6 months temporal limit, the employee ceases to be a casual employee and the contract is deemed to be a short-term contract (section 28A EA, added by 2015 Amendment). If an employee is engaged on a short-term contract and continues to be employed on expiry of this contract (in excess of 12 months), the contract is deemed to be a fixed term contract (section 28B EA, added by 2015 Amendment). On the expiry of cumulative period of fixed term contract, the contract of service is deemed to be a permanent contract (Section 28C EA, added by 2015 Amendment).

A causal employee (Art. 3EA as amended in 2015):
- is not permanent in nature;
- does not require any skill in the performance of the work to be done
- terms provide for payment at an hourly rate, payable at the end of each day,
And excludes, according to the new section 12(A)(1): (i) work under a consultancy agreement (ii) piece work (iii) seasonal work (iv) temporary employment (v) part term employment and (vi) flexibilization. Note that the provisions relating to casualisation do not apply to Micro and Small Business enterprise except if the undertaking shall comply with the MWCEA with respect to its employee (Section 3 of the Employment (Amendment) Act of 2015, adding Section 12A to EA)

On the other hand, a “short termu201d contract is defined in the 2015 amendment as: contract of service of six months but not exceeding twelve months.

Número máximo de CDD consecutivos: sin restricción

Remarks

There is not a maximum number of successive FTCs, however the 2015 Amendment, section 28C (1) refers to a cumulative temporal maximum: FTC may be renewed for subsequent terms, except that the cumulative duration of the successive fixed-term contracts of employment with an employer shall be as prescribed.

Note sec. 19 EA which relates to the renewal of an oral contract not exceeding 1 month:
"Each party to an oral contract for a period not exceeding one month shall, on the termination of such contract, be conclusively presumed to have entered into a new oral contract for a further period of the same duration and subject to the same terms and conditions as those of the contract then terminated unless-
(a) notice to terminate the employment under section twenty has been given by either party and the period of notice has expired; or
(b) the contract has been terminated by payment in lieu of notice; or
(c) the contract has been summarily terminated by either party for lawful cause; or
(d) the contract has been otherwise lawfully terminated under the provisions of this Act:
Provided that nothing in this section shall apply to-
(i) contracts expressed to be terminable without notice or to which this section does not apply;
(ii) contracts specifically expressed to be for one period of fixed duration and not to be renewable;
(iii) daily contracts where the wages are paid daily."

No statutory provision regulating renewals of written contracts.

Duración máxima acumulativa de CDD consecutivos: 24mes(es)

Notas / Comentarios

Notas

Fixed-term contract is, according to Section 3 EA, as amended by section 2(a) of 2015 Amendment, a contract of service for:

a) a period exceeding twelve months, renewable for a further term, subject to section twenty-eight C; or
b) the performance of a specific task or project to be undertaken over a specified period of time; and whose termination is fixed in advance by both parties.

Duración maxima del periodo de prueba (en meses):

Remarks

No statutory provisions on the probationary period. However, note that sec. 26B(4)(d) of the Employment Act excludes employees on probation from termination of the contract of employment on the basis of redundancy. The Minimum Wages and Conditions of Employment (Shop Workers) Order also under Section 6 mentions some provisions only applicable to workers on probationary period, which indicates that it is a lawful legal institution.

Obligación de motivar el despido: Si

Remarks

Employment (Amendment) Act of 2015 inserts in section 36(1)(c) on termination of employment the obligation to provide reasons to the employee. The section reads now: A written contract of service shall be terminated (c) in any other manner in which a contract of service may be lawfully terminated or deemed to be terminated whether under the provisions of this Act or otherwise except that where the termination is at the initiative of the employer, the employer shall give reasons to the employee for the termination of that employee’s employment”.

Motivos autorizados (despido justificado): conducta del trabajador, capacidad del trabajador, razones económicas

Remarks

- Termination of written contracts is regulated by sec. 36 EA, amended in 2015, which reads as follows: "(1) A written contract of service shall be terminated
(a) by the expiry of the term for which it is expressed to be made; or
(b) by the death of the employee before such expiry; or
(c) in any other manner in which a contract of service may be lawfully terminated or deemed to be terminated whether under the provisions of this Act or otherwise.
(2) Where owing to sickness or accident an employee is unable to fulfil a written contract of service, the contract may be.
[…] ” terminated on the report of a registered medical practitioner."
(3) The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected with the capacity, conduct of the employee or based on the operational requirements of the undertaking

Motivos prohibidos: estado civil, embarazo, licencia de maternidad, responsabilidades familiares, presentación de una queja contra el empleador, enfermedad o accidente profesional temporal, raza, color, sexo, religión, opinion política, origen social, afiliación sindical y actividades sindicales, disfrute legal de licencias, origen étnico

Remarks

Section 36(4) EA, added by the 2015 Amendment, states: Reasons that are not valid for termination of contracts include
(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, acting or having acted in the capacity of, an employee’s representatives;
(c) the filing of a complaint, the participation in proceedings against an employer involving alleged violation of laws or recourse to administrative authorities;
(d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion or affiliation, ethnicity, tribal affiliation or social status of the employee; or
(e)absence from work during leave or a rest period in accordance with a written law.

See also:
* Sec. 108 ILRA: The prohibited grounds for dismissal listed are race, sex, marital status, religion, political opinion or affiliation, tribal extraction or status of the employee.
* On trade union activities and membership, and filing a complaint against the employer, see sec. 5 ILRA.
* Dismissal based on pregnancy or maternity leave is prohibited in sec. 15B EA and clause 7(4) of both MWCEGO and MWCESO.
* On temporary work injury or sickness, see sec. 54(1) LC.

Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores, mujeres embarazadas o con licencia de maternidad, trabajadores con licencia temporal por enfermedad

Remarks

"Workers' representatives" were added in the category of workers enjoying special protection in 2017.

- The EA also provides for statutory sick leave with full pay and employment cannot be terminated on this ground during this leave period (sec. 54).
- Sec. 15B EA prohibits termination of employment for reasons connected with pregnancy and establishes a presumption of violation of such prohibition (in the absence of proof to the contrary) if the employer terminates the contract of a female employee within six months after delivery.
- Sec. 36(4)(b) EA prohibits the termination of an employment contract for an employee seeking office as, acting or having acted in the capacity of, an employee’s representatives.

Forma de la notificación del despido al trabajador: sin forma particular exigida

Remarks

Sec. 20(3) EA: Notice to terminate an oral contract may be either verbal or written.
In the legislation reviewed, no information has been found with regards to written contracts.

Plazo de preaviso:

Remarks

Oral contract:
- Sec. 20 (2) EA provides that in the absence of any agreement providing for a period of notice of longer duration, the length of such notice shall be-
(a) subject to the provisions of paragraph (b), twenty-four hours where the contract is for a period of less than a week;
(b) fourteen days where the contract is a daily contract under which, by agreement or custom, wages are payable not at the end of the day, but at intervals not exceeding one month;
(c) thirty days where the contract is for a period of one week or more".
- The notice period to be given to the employee in the event of termination by redundancy is 1 month (see sec. 10 MWCEGO and sec. 9 MWCESO).

In the legislation reviewed, no information has been found with regards to written contracts.

duración de servicio ≥ 6 meses:

  • Todos: 1 mes(es).
  • contrato oral ≥ 1 semana: 30 día(s).

duración de servicio ≥ 9 meses:

  • Todos: 1 mes(es).
  • contrato oral ≥ 1 semana: 30 día(s).

duración de servicio ≥ 2 años:

  • Todos: 1 mes(es).
  • contrato oral ≥ 1 semana: 30 día(s).

duración de servicio ≥ 4 años:

  • Todos: 30 día(s).
  • Todos: 1 mes(es).

duración de servicio ≥ 5 años:

  • Todos: 30 día(s).
  • Todos: 1 mes(es).

duración de servicio ≥ 10 años:

  • Todos: 30 día(s).
  • Todos: 1 mes(es).

duración de servicio ≥ 20 años:

  • Todos: 1 mes(es).
  • contrato oral ≥ 1 semana: 30 día(s).

Indemnización sustitutiva de preaviso: Si

Remarks

Sec. 21 EA:
"Either party to an oral contract of service may terminate such contract-
(a) in the case of a contract which may be terminated without notice, by payment to the other party of a sum equal to all wages and other benefits that would have been due to the employee if he had continued to work until the end of the contract period;
(b) in any other case, by payment to the other party of a sum equal to all wages and other benefits that would have been due to the employee at the termination of the employment had notice to terminate the same been given on the date of payment."
See also sec. 19 (b) EA: "Each party to an oral contract for a period not exceeding one month shall, on the termination of such contract, be conclusively presumed to have entered into a new oral contract for a further period of the same duration and subject to the same terms and conditions as those of the contract then terminated unless-
(b) the contract has been terminated by payment in lieu of notice".

In the legislation reviewed, no information has been found with regards to written contracts.

Notificación a la administración: No

Remarks

Except in the event of individual termination by reason of redundancy (sec. 26B(2) EA, see below - collective dismissal)

Notificación a los representantes de los trabajadores: No

Remarks

Except in the event of individual termination by reason of redundancy (sec. 26B(2) EA, see below - collective dismissal)

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Notas / Comentarios

Notas

- This section deals with individual terminations of oral contracts.
Termination of written contracts is regulated by sec. 36 EA which reads as follows: "(1) A written contract of service shall be terminated
(a) by the expiry of the term for which it is expressed to be made; or
(b) by the death of the employee before such expiry; or
(c) in any other manner in which a contract of service may be lawfully terminated or deemed to be terminated whether under the provisions of this Act or otherwise except that where the termination is at the initiative of the employer, the employer shall give reasons to the employee for the termination of that employee’s employment.
(2) Where owing to sickness or accident an employee is unable to fulfill a written contract of service, the contract may be terminated on the report of a registered medical practitioner.
(3) The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected with the capacity, conduct of the employee or based on the operational requirements of the undertaking.
(4) Reasons that are not valid for termination of contracts include
(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, acting or having acted in the capacity of, an employee’s representatives;
(c) the filing of a complaint, the participation in proceedings against an employer involving alleged violation of laws or recourse to administrative authorities;
(d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion or affiliation, ethnicity, tribal affiliation or social status of the employee; or
(e)absence from work during leave or a rest period in accordance with a written law. "

No further information is given as to termination of a written contract.
- Individual terminations for reason of redundancy are dealt with under the section on collective dismissals.

Indemnización por despido:

Remarks

•There is no general right to severance pay, as indicated by the Government and reflected in Direct Request of the CEACR, adopted 2016 on the Termination of Employment Convention, 1982 (No 158), available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:3300769,103264,Zambia,2016.

Severance pay is only due if a worker falls within the scope of the Minimum Wages and Conditions of Employment (general) or (Shop workers) Orders and a proper officer determines that the circumstances of the case do not warrant summary dismissal.
-, in the event of termination on medical grounds "as certified by a registered medical practitioner or a medical institution", the employee is entitled to a lump sum of not less that 2 months basic pay for each completed year of service (MWCEGO: sec. 9 and MWCESO: sec. 11 (3)).
Moreover the 2010 Minimum Wage Orders also foresee in their article 12 (General MWCEA) and 11 (Shop Workers) that in case of summary dismissal (where the employer dismisses the employee summarily and without due notice or payment of wages in lieu of notice) and the Labour Commissioner or labour officer determines that the circumstances of the case do not warrant summary dismissal of the employee, the employee so dismissed shall be entitled to payment of severance benefits of no less than two months’ basic pay of each completed year of service.

duración de servicio ≥ 6 meses: 0 mes(es)

duración de servicio ≥ 9 meses: 0 mes(es)

duración de servicio ≥ 1 año: 2 mes(es)

duración de servicio ≥ 4 años: 8 mes(es)

duración de servicio ≥ 5 años: 10 mes(es)

duración de servicio ≥ 10 años: 20 mes(es)

duración de servicio ≥ 20 años: 40 mes(es)

Indemnización por despido por razones económicas:

Remarks

See Minimum Wages and Conditions of Employment (General) Order, 2010 (S.I. No. 2 of 2011), art. 10 and MWCE (Shop Workers) Order 2010 (S.I. No. 1 of 2011), art. 9: redundancy payment shall be not less than 2 months for each completed year of service.

duración de servicio ≥ 6 meses: 0 mes(es)

duración de servicio ≥ 9 meses: 0 mes(es)

duración de servicio ≥ 1 año: 2 mes(es)

duración de servicio ≥ 2 años: 4 mes(es)

duración de servicio ≥ 4 años: 8 mes(es)

duración de servicio ≥ 5 años: 10 mes(es)

duración de servicio ≥ 10 años: 20 mes(es)

duración de servicio ≥ 20 años: 40 mes(es)

Notas

Compensation is only available in the following cases:
1) Termination on medical grounds: severance pay
2) Summary dismissal not considered justified by the labour officer: severance pay
3) Termination by reason of redundancy: redundancy payment
4) Termination for any other reasons: no severance pay

Compensación por despido injustificado - libre determinación de la Corte: Si

Remarks

Sec. 85A ILRA: The Industrial Relations Court may award damages or compensation for loss of employment.
See also sec. 108 ILRA on discriminatory dismissals and 5 (5) ILRA on dismissal in connection with trade union activities.

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): When the competent labour officer decides that the circumstances of the case do not warrant summary dismissal, the employee so dismissed in entitled to "payment of severance benefits" of not less than 2 months basic pay for each completed year of service" (MWCEGO sec. 12(3) and MWCESO: sec. 11(3)).

Posibilidad de readmisión: Si

Remarks

See sec. 85A ILRA and 108 ILRA.
- Sec. 85A ILRA (general powers of the Industrial Relations Court): The Court may "make an order for reinstatement, re-employment or re-engagement".
- Sec. 108(3)b) ILRA (discriminatory dismissals): "The Court shall, if it finds in favour of the complainant:
a) grant to the complainant damages or compensation for loss of employment;
b) make an order for re-employment or reinstatement in accordance with the gravity of the circumstances of each case"

Conciliación previa obligatoria: No

Remarks

No preliminary mandatory conciliation.
However, optional conciliation is foreseen in rule 46 of the Industrial Relations Courts Rules (annexed in the ILRA) which states that:
"In exercising its powers under these Rules, the Court may, whether by adjourning any proceedings or otherwise, use its best endeavours to ensure that, in any case in which it appears to the Court that there is a reasonable prospect of agreement being reached between the parties, they are enabled to avail themselves of the services of conciliation officers or of other opportunities for conciliation".

Corte o Tribunal competente: tribunal del trabajo

Remarks

See sec. 85 (4), 85A and 108 ILRA.
The Industrial Relations Court has jurisdiction over matters specified under the ILRA, such as termination on the grounds of trade union membership or activity and on discriminatory grounds which shall be made within 30 days of the termination (sec. 108 ILRA).
According to sec. 85(4), ILRA, the court also has jurisdiction to "hear and determine any dispute between any employer and an employee notwithstanding that such dispute is not connected with a collective agreement or other trade union matter". Complaints must be made within 30 days of the event complained of, unless leave is obtained (sec. 85 ILRA).

Arbitraje: No