Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Termination of Employment Convention, 1982 (No. 158) - Malawi (Ratification: 1986)

Other comments on C158

Direct Request

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The Committee refers to its previous comments, initially made in 2014, in which it noted that section 28(3) of the Employment Act No. 6 of 2000 regards specific term or task contracts as indefinite contracts if they are used to fill a permanent position. The Committee once again expresses its trust that the Government will be mindful of each of the provisions of the Convention, to ensure their full and effective application, when reviewing the Employment Act, and requests the Government to provide a copy of the amended Act to the Office as soon as it is adopted. The Committee once again requests the Government to include copies of decisions rendered by the Industrial Relations Court interpreting section 28(3) of the Employment Act more specifically with regard to the protection against abusive recourse to fixed-term contracts (Article 2(3) of the Convention).

Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee previously noted that members of the armed forces, prison service and police are excluded from coverage under the Employment Act, except when they are employed in a civil capacity. The Committee recalls the Government’s indication in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers were stipulated in the Standing Orders. Noting that the Government has not responded to its previous request in respect of the application of Article 2, the Committee once again requests the Government to provide copies of the Standing Orders to enable it to determine whether the protection provided is at least equivalent to that afforded by the Convention to the above categories of civil servants.

Article 12. Severance allowance and other income protection. In its previous comments, the Committee requested the Government to provide information on the effective application of the Pension Act No. 6 of 2011. The Government previously reported that, pursuant to the Pension Act No. 6 of 2011, severance pay for the period prior to 1 June 2011 is payable regardless of the grounds of termination. The Committee notes in this regard that section 91(1) of the Pension Act provides that “every employer shall recognize as part of an employee’s pension dues, each employee’s severance due entitlement accrued from the date of employment of that employee to the date of commencement of this Act”. Moreover, section 91(5) of the Pension Act provides that the “severance due entitlement shall, upon termination of an employment contract between the employer and employee, become immediately transferable to a pension fund of the employee’s choice”. The Committee recalls that under Article 12(1) of the Convention, a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to a severance allowance or other separation benefits (paragraph 1(a)); or benefits from unemployment insurance or assistance or other forms of social security (paragraph 1(b)); or a combination of such allowance and benefits (paragraph 1(c)). The Committee notes with interest the court decisions provided by the Government in relation to the application of Article 12 of the Convention. In this respect, it notes that the Industrial Relations Court confirmed that the severance allowance is paid for all the years of continuous employment including the period before coming into effect of the Pension Act of 2011 irrespective of the payments to the Pension Fund. The Court explained that when severance due entitlement is transferred to the Pension Fund, it becomes a benefit payable as a pension benefit upon retirement. The Committee invites the Government to continue providing information on the application of the Pension Act, both in law and in practice, in relation to Article 12, as well as information on the manner in which the issue of overlapping periods and “double payment” (as referred to in Griffin Mtonga vs ARET – IRC 190/2013 and Hotel Food Processing /& Catering Workers Union vs Bakhresa Grain Milling Company – IRC 408/2012) is curbed in law and practice.

Article 12(3). Loss of entitlement to severance payment in case of termination for serious misconduct. The Government previously indicated that the statutory grounds for losing one’s entitlement to severance allowance in section 35(6), the ground of being “fairly dismissed for a reason related to his conduct”, should be read in conjunction with sections 57–61 of the Employment Act, which set out the substantive and procedural requirements of a “fair” dismissal. The Government reported in June 2011 that section 59(1) of the Act lists five grounds for summary dismissal and that each of these five grounds justifies the loss of severance allowance. Noting that the Government has not provided the requested copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act, the Committee reiterates its request for copies of decisions in which the labour court examined section 35(6) in the context of the loss of severance allowance being limited to cases of serious misconduct as contemplated in section 59(1) of the Act.

The Committee notes that section 35(A) Amendment of Employment Act 2010 obliges the employer to pay gratuity to the employees exempted under the Pension Act, in case of termination of employment, or death. The Commission invites the Government to continue sharing copies of the decisions involving payment of gratuity in cases of termination due to serious misconduct.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Government previously indicated that all employers comply with administrative statements and policies on retrenchments; and retrenchment packages are examined before they are implemented. It had also indicated that consultations with the social partners were at an advanced stage to incorporate procedures of collective dismissals in the amended Employment Act. The Committee notes the judgment of the High Court in Case No. MZ40 of 2010 (Kaira v. Malawi Telecommunications Limited) in which the Court referred to Article 13 of the Convention and indicated that, although not clearly provided in section 57 of the Employment Act, Convention No. 158, which Malawi ratified, obliges the employer to fully engage the employee in consultations as regards the impending restructuring.

The Committee notes the ruling of the Malawi Supreme Court of Appeal in First Merchant Bank Limited vs Eisenhower Mkaka and 13 Others, in which it concluded that the employer had no obligation to consult the employees, or to otherwise accord them a right to be heard when terminating their employments based on operational requirements, including redundancy or retrenchment. The Committee notes the Court’s decision to overrule the ruling of the Supreme Court of Appeal in the MTL vs. Makande case [2008] MLR 3, which held that the requirements of Article 14 of ILO Convention 158 are directly applicable in Malawi by virtue of article 211(2) of the Constitution, as it was made per incuriam.

In its 1995 General Survey, Protection against unjustified dismissal, paragraph 278, the Committee recalls that a State which ratifies the Convention undertakes to comply the procedures of Articles 13 and 14, which encompass a number of objectives (mainly to avert or minimize terminations of employment and mitigate their consequences) within the framework of certain procedures, namely information and consultation of workers (Article 13) and notification to the authorities (Article 14). Paragraph 283 indicates that consultation provides an opportunity for an exchange of views and the establishment of a dialogue which can only be beneficial for both the workers and the employer, by protecting employment as far as possible and hence ensuring harmonious labour relations and a social climate which is propitious to the continuation of the employer’s activities. The Committee again stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It once again asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals and include copies of recent court decisions addressing terminations for reasons of economic, technological, structural or similar reasons.

Part V of the report form. Application of the Convention in practice. The Committee once again invites the Government to provide information on the manner in which the Convention is applied in practice, including providing available statistics on the activities of the appellate bodies relevant to the application of the Convention, and on the number of terminations carried out for economic or similar reasons.