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 2021.
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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Industrial Relations Court (Procedure) Rules, 1999
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Labour Relations (Amendment) Act, No. 1 of 2012
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Constitution of the Republic of Malawi (as amended in 2017)
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Employment (Amendment) Act, 2021 (Act No. 17 of 2021).
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(view in NATLEX
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Scope
Size of enterprises excluded (≤): none
No enterprises are explicitly excluded based on size.
Workers' categories excluded: prison staff, police, army
The Employment Act does not apply to the armed forces, the prison service or the police, unless they are employed in a civilian capacity.
→ Section 2 EA indicates that :
(1) Subject to subsection (2), this Act applies to the private sector and the Government, including any public authority or enterprise.
(2) This Act does not apply to members of the armed forces, the prisons service or the police, except those employed in a civilian capacity.
FTC regulated: Yes
Valid reasons for FTC use: objective and material reasons
No reasons specified in the EA.
However, under Section 28(3) of the EA, where the purpose or effect of a contract of employment that is purported to be for a specified period of time or a specific task is the filling on a lasting basis of a post connected with the normal and permanent activity of an undertaking, it shall be deemed to be a contract of employment 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)
Under Section 26(1) EA, a probationary period may be included in a contract of employment for a skilled worker, provided it does not exceed 12 months.
→ Section 26 EA indicates that:
(1) In a contract of employment in respect of a skilled worker, the parties may agree on the duration of the probationary period: Provided that the period shall not, in any event, exceed twelve months.
(2) During a probationary period, a contract of employment may be terminated at any time by either party without notice.
(3) For purposes of this section, “skilled worker” means an employee in an undertaking who has special ability to do something, which ability is gained through acquisition, programmed or otherwise, of knowledge, attitude and behaviour.
Excluded from protection against dismissal: Yes
Under Section 26(2) of the EA, a probationary contract may be terminated at any time by either party without notice.
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
▷ Invalid reasons for dismissal
→ Section 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 any of the rights specified in Part II of the Labour Relations Act [exercise of freedom of association rights];
(c) an employee’s temporary absence from work because of sickness or injury;
(d) an employee’s 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) an employee’s participation or proposed participation in industrial action, which takes place in conformity with the provisions of Part V of the Labour Relations Act;
(f) an employee’s refusal to do any work, normally done by 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.
▷ Prohibition of discrimination
The EA provides for general non-discrimination provisions (including in respect of termination of employment):
→ Section 5(1) EA indicates that: No person shall discriminate against any employee or prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, marital status or family responsibilities in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship.
▷ Pregnancy and maternity
→ Under Section 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: workers' representatives, pregnant women and/or women on maternity leave
▷ Pregnancy and maternity
→ Under Section 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 representatives
→ Under Section 57 (3)(b) EA do not constitute valid reasons for dismissal or for imposition of disciplinary action: an employee’s exercise of any of the rights specified in Part II of the Labour Relations Act [exercise of freedom of association rights].
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 an 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.
tenure ≥ 6 months:
- monthly paid workers: 1 month(s).
tenure ≥ 6 months:
- fortnightly paid workers: 2 week(s).
tenure ≥ 6 months:
- hourly or weekly paid workers: 1 week(s).
tenure ≥ 6 months:
- fixed-term workers: 14 day(s).
tenure ≥ 9 months:
- monthly paid workers: 1 month(s).
tenure ≥ 9 months:
- fortnightly paid workers: 2 week(s).
tenure ≥ 9 months:
- hourly or weekly paid workers: 1 week(s).
tenure ≥ 9 months:
- fixed-term workers: 14 day(s).
tenure ≥ 2 years:
- monthly paid workers: 1 month(s).
tenure ≥ 2 years:
- fortnightly, weekly or hourly paid workers: 2 week(s).
tenure ≥ 2 years:
- fixed-term workers: 14 day(s).
tenure ≥ 4 years:
- monthly paid workers: 1 month(s).
tenure ≥ 4 years:
- fortnightly, weekly or hourly paid workers: 2 week(s).
tenure ≥ 4 years:
- fixed-term workers: 14 day(s).
tenure ≥ 5 years:
- monthly paid workers: 1 month(s).
tenure ≥ 5 years:
- fortnightly, weekly or hourly paid workers: 1 month(s).
tenure ≥ 5 years:
- fixed-term workers: 14 day(s).
tenure ≥ 10 years:
- monthly paid workers: 1 month(s).
tenure ≥ 10 years:
- fortnightly, weekly or hourly paid workers: 1 month(s).
tenure ≥ 10 years:
- fixed-term workers: 14 day(s).
tenure ≥ 20 years:
- monthly paid workers: 1 month(s).
tenure ≥ 20 years:
- fortnightly, weekly or hourly paid workers: 1 month(s).
tenure ≥ 20 years:
- fixed-term workers: 14 day(s).
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.
In addition, the Employment (Amendment) Act 2010 refers to "economic difficulties or technical, structural or operational requirements" under Section 35(1).
▷ Employment Act 2000
→ Section 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.
▷ Employment (Amendment) Act 2010
The Employment (Amendment) Act 2010 amends and replaces Section 35 of the Employment Act 2000. The amended Section 35(1) provides for termination of an employment contract for "economic difficulties or technical, structural or operational requirements".
→ The amended Section 35(1) states that: "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 circumstances, 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.
Note: The first Schedule is provided in the annexe of the Employment Amendment (2010).
Notification to the public administration No
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) No
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: No
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 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.
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:
▷ Employment (Amendment) Act 2010
The Employment Amendment Act of 2010 (effective as of May 2011) limits severance pay entitlements to economic dismissals ("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 unfair dismissals. Employees who are fairly dismissed (ie for a reason connected with their capacity) are no longer entitled to severance pay.
For more information, see the section on "redundancy payment".
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
▷ Employment (Amendment) Act 2010
The Employment (Amendment) Act 2010 amends and replaces Section 35 of the Employment Act 2000 (hereinafter referred to as the "principal Act) by deleting subsection (1) and substituting it with the following
→ Section 35(1): "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 circumstances, 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.
Note: The first Schedule is provided in the annexe of the Employment Amendment (2010).
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 to 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.
Note: [Prior to July 2011, severance/redundancy pay was set as follows:
▻ From 1 to 10 years of service: 2 weeks' 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
▶ Employment Act (EA)
→ Section 63(4) EA states that: An award of compensation shall be such amount as the Court considers just and equitable in the circumstances having regard to the loss sustained by the employee in consequence of the dismissal in so far as the loss is attributable to action taken by the employer and the extent, if any, to which the employee caused or contributed to the dismissal.
→ Section 63 (5) EA provides that: The amount to be awarded under subsection (4) shall not be less than -
(a) one week’s pay for each year of service for an employee who has served for not more than five years;
(b) two weeks’ pay for each year of service for an employee who has served for more than five years but not more than ten years;
(c) three weeks’ pay for each year of service for an employee who has served for more than ten years but not more than fifteen years; and
(d) one month’s pay for each year of service for an employee who has served for more than fifteen years,
and an additional amount may be awarded where dismissal was based on any of the reasons set out in section 57 (3).
: Yes
Yes
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/>
▶ Employment Act (EA)
→ Section 65 (5) EA.
The Act provides for an additional amount to be awarded by the Court when dismissal is based on prohibited grounds.
▷ Note that according to Section 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
▶ Employment Act (EA)
▷ Under the EA, when deciding which remedy to award, the Court shall first consider the possibility of ordering reinstatement.
→ Section 63 of the EA provides that:
(1) If the Court finds that an employee’s complaint of unfair dismissal is well founded, it shall award the employee one or more of the following remedies - Remedies for unfair dismissal
(a) an order for reinstatement whereby the employee is to be treated in all respects as if he had not been dismissed;
(b) an order for re-engagement whereby the employee is to be engaged in work comparable to that in which he was engaged prior to his dismissal or other reasonably suitable work from such date and on such terms of employment as may be specified in the order or agreed by the parties; and
(c) an award of compensation as specified in subsection (4)
(2) The Court shall, in deciding which remedy to award, first consider the possibility of making an award of reinstatement or re-engagement, taking into account in particular the wishes of the employee and the circumstances in which the dismissal took place, including the extent, if any, to which the employee caused or contribute to the dismissal. (...).
→ Under Section 49(3)(a) EA, in case of dismissal during pregnancy or maternity, in addition to imposing a penalty (...) the Court may order the employer to reinstate the employee, who shall be treated in all respects as if her employment had not been terminated; (...).
police: Yes
Across EA, multiple references are made to the authority of the Court (including Sections 7, 35(8), 49(3), 52(2)(b), 62(3), 63, 64(3), and 65).
▷ The Employment Act (EA) does not use the explicit term “conciliation” consistently. However, the mechanism of conciliation is provided for under the EA, the Labour Relations Act and the Industrial Relations Court (Procedure) Rules.
▶ Employment Act (EA)
→ Under section 62 of the EA, an employee must complain to the District Labour Officer within 3 months of dismissal (irrespective of notice).
▻ The District Labour Officer then has 1 month to “settle the matter”.
Only if they fail to settle within that 1-month period can the matter be referred to the Industrial Relations Court (IRC) under sections 64(2) or 64 (3).
→ Under section 64(1) of the EA, any question, difference or dispute under the Act or the employment contract can be brought to a labour officer, who “shall attempt to resolve the matter”.
This is the functional equivalent of conciliation/mediation. The labour officer acts as a facilitator to achieve an amicable settlement before any court involvement.
→ Under section 56(6) of the EA, explicite reference is made to conciliation indicating that: A complaint that disciplinary action is unreasonable may be made to a labour officer for conciliation under section 64 (1).
▶ Labour Relations Act (LRA)
Explicite reference is made to conciliation in LRA. When a dispute is formally reported (mainly collective disputes), the officer “shall endeavour to conciliate the parties”, with a strict 21-day timeline (extendable by agreement).
→ Section 44 LRA indicates that:
(1) If a dispute is reported to the Principal Secretary responsible for labour and he or she is satisfied that the dispute settlement procedures established in a collective agreement covering the parties to the dispute have been exhausted, unless all parties have consented to waive those procedures, the Principal Secretary responsible for labour or any person authorized by him or her to do so that endeavour to conciliate the parties, subject to subsection (2).
(2) Where one of the parties to the dispute is the Government, including any public authority or commercial enterprise in which the Government has a controlling interest, the parties shall agree upon a conciliator, who shall endeavour to conciliate the parties.
(3) Where the parties are not able to agree on a conciliator under subsection (2) within seven days of the dispute being reported, the Industrial Relations Court shall, on the application of either party designated an independent arbitrator.
(4) The conciliation under subsections (1) and (2) shall be completed within twenty-one days of the receipt of the report, unless the parties to the dispute agree to extend the time.
(5) A dispute shall be deemed to be unresolved if a party fails to attend of the parties fail to reach agreement on the settlement of the dispute within the time prescribed in subsection (4).
(6) Where a settlement of the dispute has been effected pursuant to this section, it shall be recorded in writing and signed by the parties and the conciliator or arbitrator, as the case may be.
(7) The settlement agreement referred to in subsection (6) shall become binding on the parties on the date it is signed, unless the agreement states otherwise.
▶ Industrial Relations Court (Procedure) Rules, 1999 (IRCR)
→ Rule 5 of the IRCR governs the procedure once the matter is already before the Industrial Relations Court (IRC):
▻ The Registrar has an explicit duty to act as a conciliator.
▻ This occurs in two main ways:
• If the parties request it (voluntary).
• If the Court directs it (mandatory when ordered).
▻ The Registrar can hold a pre-hearing conference and “endeavour to assist the parties … to arrive at a settlement”.
▶ Constitution of the Republic of Malawi (as amended in 2017)
→ Section 110(2) of the Constitution indicated that: There shall be an Industrial Relations Court, subordinate to the High Court, which shall have original jurisdiction over labour disputes and such other issues relating to employment and shall have such composition and procedure as may be specified in an Act of Parliament.
▶ Employment Act (EA)
→ Under section 62(3) EA, if the District Labour Officer fails to settle an unfair dismissal complaint within one month, “the matter may be referred to the Court in accordance with section 64(2) or 64(3) EA.
→ Section 64 EA allows complaints to be brought before the Court for relief where a violation of the Act is alleged (with the labour officer stage as the usual first step).
▻ The “Court” is defined in the EA as the Industrial Relations Court established under section 110(2) of the Constitution.
▶ Labour Relations Act (LRA)
→ Under section 45 LRA:
▻ Subsection (1): If the dispute remains unresolved after conciliation and it concerns:
• Interpretation or application of any statutory provision (e.g. provisions of the Employment Act), a collective agreement, or a contract of employment; or
• An essential service,
Either party (or the Principal Secretary for essential services) may apply directly to the Industrial Relations Court for determination.
▻ Subsection (2): For other types of unresolved disputes (not covered by (Sub§ 1)):
• Parties can agree to refer it to the Industrial Relations Council, or
• Parties can proceed to strike/lockout after giving proper notice (§ 46).
▻ Subsection (3)–(4): If there is doubt whether the dispute falls under Sub§§ (1) or (2), either party (or the Principal Secretary) can ask the IRC to decide this question (in a summary manner).
▻ Subsection (5): Subject to section 65(2) of the LRA, the decision of the Industrial Relations Court is final.
Existing arbitration: No
No statutory requirement was identified in the reviewed legislation.
Length of procedure:
No statutory requirement was identified in the reviewed legislation.
Burden of Proof: employer
▶ Employment Act (EA)
→ Under Section 6(2) EA, in cases of alleged violation of "equal remuneration", the employer shall bear the burden of proving that there was no violation.
→ Under Section 49(1) EA, an employer who terminates the employment of an employee because the employee is pregnant or for any reason connected with her pregnancy shall be guilty of an offence and the burden of proving that the employment was not terminated because of pregnancy shall be on the employer.
→ Under Section 61 (1) EA, in any claim or complaint arising out of the dismissal of an employee, it shall be for the employer to provide the reason for dismissal, and if the employer fails to do so, there shall be a conclusive presumption that the dismissal was unfair.
No information was found in the examined materials in this respect.