Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

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

The Committee notes the Government’s report received in June 2010, including its replies to previous direct requests (including reasons for termination). In reply to the Committee’s request regarding safeguards against abuse of employment contracts for a specified period of time, the Government refers to section 28(3) of the Employment Act (No. 6 of 2000), which legally treats specific term or task contracts as indefinite contracts when they are used to fill a permanent position. The Committee invites the Government to provide in its next report information on how the Industrial Relations Court interprets section 57(2) of the Employment Act on protection against abusive recourse to fixed-term contracts is applied in practice (Article 2(3)).

Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee notes that members of the armed forces, prison service, and police are excluded from the coverage of the Employment Act under section 2(2), except when they are employed in a civil capacity. The Government indicates its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6). In this regard, the Committee refers to its previous comment and asks the Government to provide in its next report information about the steps taken to provide protection that is at least equivalent to that afforded by the Convention to the above category of civil servants.

Article 12(3). Loss of entitlement to severance payment in case of termination for serious misconduct. The Government indicates in its report that the statutory grounds for losing one’s entitlement to severance allowance in section 35(6), particularly that of being “fairly dismissed for a reason related to his conduct”, should be read in conjunction with sections 57–61 of the Act, which provide substantive and procedural elaborations of a “fair” dismissal. The Government further communicates its intention to provide the Committee with relevant court decisions in the future. The Committee looks forward to receiving information in the Government’s next report on how the loss of severance allowance is limited to cases of serious misconduct.

Articles 13 and 14. Terminations of employment for economic, technological, structural, or similar reasons. The Committee notes the Government’s communication that the existing legal framework does not give effect to Articles 13 and 14 of the Convention. The Government indicates that it failed to reach an agreement with its social partners regarding the employer’s consultation and notification obligations for terminations related to economic, technological, structural, or similar reasons at the time of drafting the Employment Act. The Government also indicates that it has previously issued temporary administrative statements requiring employers to notify the Ministry of Labour and seek its approval, once in 1993, and recently again due to the economic crisis. The Committee stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It encourages the Government and the social partners to reach an agreement in order to fully apply these provisions of the Convention. It invites the Government to report on the results of its efforts to give effect to Articles 13 and 14 and to include information on the impact of the global crisis on the number of terminations in the country.