References
Malawi ratified the ILO Termination of Employment Convention, 1982 (No. 158) in 1986.
New amendments to the Employment Act entered into force in May 2011.
Employment Act [EA], No. 6 of 2000
Date:
1 Jan 1970;
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Employment Amendment Act, No. 27 of 2010 (date of entry into force: 1st June 2011)
Date:
1 Jan 1970;
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Labour Relations Act [LRA], No. 16 of 1996
Date:
1 Jan 1970;
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»)
Labour Relations (Amendment) Act, No. 1 of 2012
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Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: prison staff, police, army
Art. 2 (2) EA: except for those employed in a civilian capacity.
FTC regulated: Yes
Valid reasons for FTC use: objective and material reasons
No reasons specified in the LC.
However, according to art. 28 (3) LC, fixed-term contracts used to fill in on a lasting basis positions connected with the normal and permanent activity of an undertaking shall be deemed concluded for an unspecified period of time.
Maximum number of successive FTCs: no limitation
No statutory limitation found in the legislation reviewed.
Maximum cumulative duration of successive FTCs: no limitation
No statutory limitation found in the legislation reviewed.
Maximum probationary (trial) period (in months): 12 month(s)
Art. 26 (1) EA: a probationary period may be included in a contract of employment in respect of a skilled worker provided it does not exceed 12 months.
Obligation to provide reasons to the employee: Yes
Valid grounds (justified dismissal):
Prohibited grounds: marital status, pregnancy, maternity leave, family responsibilities, filing a complaint against the employer, temporary work injury or illness, race, colour, sex, religion, political opinion, social origin, nationality/national origin, trade union membership and activities, disability, language, participation in a lawful strike, property, birth, ethnic origin
Art. 57 (3) EA: lists invalid reasons for dismissals as
(a) an employee’s race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, marital or other status or family responsibilities;
(b) an employee’s exercise of freedom of association rights;
(c) temporary absence from work because of sickness or injury;
(d) exercise or proposed exercise of the right to remove himself from a work situation which he reasonably believes presents an imminent or serious danger to life or health;
(e) participation or proposed participation in Iawful industrial action;
(f) refusal to do any work normally done an employee who is engaged in industrial action; or
(g) the filling of a complaint or participation in proceedings against an employer involving alleged violations of laws, regulations or collective agreements.
See also the general provision of non-discrimination (including in respect of termination of employment): art. 5 (1) EA.
On pregnancy, see: art 49(1) EA: an employer who terminates the employment of an employee because of her pregnancy or for any reason connected with her pregnancy shall be guilty of an offence and liable to a fine and 5 years imprisonment.
Workers enjoying special protection:
Notification to the worker to be dismissed: written
An indefinite-term contract must be terminated with a written notice (§ 29(1). Additionally, for reasons related to capacity or conduct, the employee must be given an opportunity to defend themselves (§ 57(2)).
→ Under Section 29(1) EA, a contract of employment for an unspecified period of time may be terminated by either party upon giving the other party the following minimum period of notice in writing (...).
→ Section 57(2) EA, indicates that: 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.
Notice period:
→ Section 29 (1) EA: Notice period for terminating a contract for an unspecified period of time varies between 1 day and one month depending on the frequency of pay and/or the length of service, as follows:
1) workers paid on a monthly basis: 1 month's notice;
2) workers paid on a fortnightly basis:
- 1 fortnight's notice for less than 5 years of service
- 1 month's notice for at least 5 years of service;
3) workers paid on a weekly basis:
- 1 week's notice for less than 2 years of service
- 1 fortnight's notice between 2 and less than 5 years of service
- 1 month's notice for at least 5 years of service;
4) workers paid on a hourly basis:
- 1 day's notice for less than 6 months of service
- 1 week notice between 6 months and less than 2 years of service
- 1 fortnight's notice between 2 and less than 5 years of service
- 1 month's notice for at least 5 years of service.
→ Under Section 29 (3) EA, the minimum period of notice in respect of a contract of employment for a specified period of time shall be 14 days.
Pay in lieu of notice: Yes
Under Section 30 (2) EA, in lieu of providing notice of termination, the employer shall pay the employee a sum equal to the remuneration that would have been received and conferred on the employee all other benefits due to the employee up to the expiration of the required period of notice.
Notification to the public administration: No
No statutory requirement was identified in the reviewed legislation.
Notification to workers' representatives: No
No statutory requirement was identified in the reviewed legislation.
Approval by public administration or judicial bodies: No
No statutory requirement was identified in the reviewed legislation.
Approval by workers' representatives: No
No statutory requirement was identified in the reviewed legislation.
Definition of collective dismissal (number of employees concerned)
No statutory definition.
No specific procedure is attached to dismissal based on "operational requirements" in the Employment Act. However, specific requirements have been established by case law.
Art. 57 (1) EA : "operational requirements of the undertaking" can constitute a valid reason for dismissing an employee.
However, there is no mention in the Employment Act of when such dismissal could be described as collective. Additionally, there are no specific statutory requirements, such as consultation with a trade union or notification to the labour administration, for dismissals involving more than one employee.
Notification to the public administration Yes
No statutory requirements.
However, the Courts have ruled that in cases of redundancies and other mass dismissals for operational needs, the employer must comply with Articles 13 and 14 of the ILO Convention 158 on consultation with the worker's representatives and notification to the administration.
(See Makande and another V Malawi Telecommunications Ltd [IRC 81/2001] Industrial Relations Court, upheld by the High Court [Civil Appeal 70/2003] and confirmed by the Supreme Court on 7 May 2007 in Malawi Telecommunication Ltd v Makande and another, [Civil Appeal 2/2006], reported in Malawi Labour Law Report, 2008, pp. 35-45.
Notification to trade union (workers' representatives) Yes
No statutory requirements.
However, the Courts have ruled that in cases of redundancies and other mass dismissals for operational reasons, the employer must comply with Articles 13 and 14 of the ILO Convention 158, which require consultation with workers' representatives and notification to the administration.
(See Makande and another V Malawi Telecommunications Ltd [IRC 81/2001] Industrial Relations Court, upheld by the High Court [Civil Appeal 70/2003] and confirmed by the Supreme Court on 7 May 2007 in Malawi Telecommunication Ltd v Makande and another, [Civil Appeal 2/2006], reported in Malawi Labour Law Report, 2008, pp. 35-45.
Notification to workers' representatives: Yes
No statutory requirements.
However, the Courts have ruled that in cases of redundancies and other mass dismissals for operational needs, the employer must comply with art. 13 and 14 of the in ILO Convention 158 on consultation with the worker's representatives and notification to the administration.
(See Makande and another V Malawi Telecommunications Ltd [IRC 81/2001] Industrial Relations Court , upheld by the High Court [Civil Appeal 70/2003] and confirmed by the Supreme Court on 7 May 2007 in Malawi Telecommunication Ltd v Makande and another, [Civil Appeal 2/2006], reported in Malawi Labour Law Report, 2008, pp. 35-45.
Approval by trade union (workers' representatives) No
No statutory requirement was identified in the reviewed legislation.
Approval by workers' representatives No
No statutory requirement was identified in the reviewed legislation.
Priority rules for collective dismissals (social considerations, age, job tenure) No
No statutory requirement was identified in the reviewed legislation.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) No
No statutory requirement was identified in the reviewed legislation.
Priority rules for re-employment No
No statutory requirement was identified in the reviewed legislation.
Severance pay:
New in 2011
amende and replaces Section 35 of the Employment Act 2000 (hereinafter referred to as the "principal Act) by deleting subsection and substituting therefor the following: "on the termination of a contract as a result of redundancy or retrenchment or due to economic difficulties, or technical, structural or operational requirements of the employer, or on the unfair dismissal of an employee by the employer, and not in any other circonstances, an employee shall be entitled to be paid by the employer, at the time of termination, a severance allowance to be calculated in accordance with part I of the first Schedule.
The Employment Amendment Act of 2010 (effective as of May 2011) limits severance pay entitlements to economic dismissals ("termination of a contract as result of redundancy or retrenchment, or due to economic difficulties, or technical, structural or operational requirements of the employer) or unfair dismissals. Employees who are fairly dismissed (ie for a reason connected with their capacity) are no longer entitled to severance pay.
tenure ≥ 6 months: 0 week(s).
tenure ≥ 9 months: 0 week(s).
tenure ≥ 1 year: 0 week(s).
tenure ≥ 2 years: 0 week(s).
tenure ≥ 4 years: 0 week(s).
tenure ≥ 5 years: 0 week(s).
tenure ≥ 10 years: 0 week(s).
tenure ≥ 20 years: 0 week(s).
Redundancy payment:
New in 2011
The Employment Amendment Act of 2010 (effective as of May 2011) limited severance pay entitlements to economic dismissals ("termination of a contract as result of redundancy or retrenchment, or due to economic difficulties, or technical, structural or operational requirements of the employer) or unfair dismissals.
The amounts of redundancy pay have also been changed by the Employment Amendment Act 2010.
The First Schedule of the EA, as amended reads as follows:
* At least 1 year and up 5 years of service: 2 weeks' wages for each completed year of service up to and including the fifth year.
* More than 5 years and up to 10 years of service: 2 weeks' wages for each completed year of service for the first five years plus 3 weeks' wages for each completed year of service from the sixth year and up to and including the tenth year.
* More than 10 years: 2 weeks' wages for each completed year of service for the first five years plus 3 weeks' wages for each completed year of service from the sixth year and up to and including the tenth year plus four weeks' wages for each completed year of service from the eleventh year onwards.
[Prior to July 2011, severance/redundancy pay was set as follows:
* From 1 and up to 10 years of service: 2 week's wages for each completed year of service
* Beyond 10 years of service: 4 weeks' wages for each completed year of service.]
tenure ≥ 6 months: 0 month(s).
tenure ≥ 9 months: 0 month(s).
tenure ≥ 1 year: 2 week(s).
tenure ≥ 2 years: 4 week(s).
tenure ≥ 4 years: 8 week(s).
tenure ≥ 5 years: 10 week(s).
tenure ≥ 10 years: 25 week(s).
tenure ≥ 20 years: 65 week(s).
mine workers: No
Art. 63(4) and (5) EA. The amount of compensation shall be such amount as the court considers just and equitable in the circumstances. However, statutory minimum thresholds are foreseen in art. 63 (5) of the EA.
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): Compensation for unfair dismissal shall not be less than:<br/>- 1 week's pay for each year of service for a worker who has served for not more than 5 years;<br/>- 2 weeks' pay for each year of service for a worker who has served for more than 5 and less than 10 years;<br/>- 3 weeks' pay for each year of service for a worker who has served for more than 10 years and not more than 15 years; <br/>- 1 month's pay for each year of service for a worker who has served for more than 15 years.<br/>
Art. 65 (5) EA.
The Act foresees an additional amount to be awarded by the Court when dismissal was based on prohibited grounds.
Note that according to art. 65 (6) EA, if an order of reinstatement or re-engagement made by the Court is not complied with by the employer, the employee is entitled to an award equivalent to 12 weeks' wages, in addition to a compensatory award.
managerial / executive positions: Yes
Art. 63 (1) a) EA.
When deciding which remedy to award, the Court shall first consider the possibility of ordering reinstatement (art. 63 (2) EA).
police: Yes
Prior to the settlement of the dispute before the Court, the matter is lodged to a Regional/District Labour Officer before a Labour Officer for conciliation: art. 62, 64 EA and art. 44(1) LRA. This preliminary phase of extra-judicial conciliation is compulsory for the parties.
In addition, preliminary conciliation before the Registrar of the Industrial Relations Court: Rule 5 (3),(4) (5) of the Industrial Relations Court (Procedure) Rules, 1999.
Conciliation is carried out by the Registrar, if requested by the parties or if directed by the Court to do so.
Art. 62(1), 64 and 65 EA.
See also the part on dispute settlement (art. 42-45) of the Labour Relations Act, 1996
Existing arbitration: No
Definition of collective dismissal (number of employees concerned): 65
Figure calculated on the basis of the statistics provided in the Annual Report of the Industrial Relations Court of Malawi for the period between July 2007 and June 2008.
The figures represents the percentage of disputes pertaining to unfair dismissals out of the total number of disputes disputes registered by the "Principal registry" and the "Lilongwe Registry".