Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the Government’s brief replies to the points raised in the 2010 direct request received in June 2011. The Government indicates in its report that the judiciary is an independent body and interpretation and decisions are not subject to outside influence. The Committee noted in its previous comments that section 28(3) of 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 invites the Government to provide in its next report 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 the coverage of the Employment Act under section 2(2), except when they are employed in a civil capacity. The Government indicated its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6). The Government reports in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers are stipulated in the Standing Orders. The Committee invites the Government to provide in its next report copies of the Standing Orders to examine how the protection provided is at least equivalent to that afforded by the Convention to the above categories of civil servants.

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), particularly that 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 provide substantive and procedural elaborations of a “fair” dismissal. The Government reports 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. The Committee asks the Government to include in its next report copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act more specifically with regard to the loss of severance allowance being limited to cases of serious misconduct.

Articles 13 and 14. Termination of employment for economic, technological, structural, or similar reasons. The Government reports that all employers comply with administrative statements and policies on retrenchments, and retrenchment packages are examined before they are implemented. It further indicates that consultations with the social partners are at an advanced stage to incorporate procedures of collective dismissals in the amended Employment Act. The Committee stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the advancements in the process to amend the Employment Act to incorporate procedures of collective dismissals.

Part V of the report form. Practical information on the application of the Convention. The Committee previously invited the Government to provide information on the impact of the global economic crisis on the number of terminations in the country. The Committee invites the Government to include in its next report information on the manner in which the Convention is applied in practice, including available statistics on the activities of the appeal bodies and on the number of terminations carried out for economic or similar reasons.

[The Government is asked to reply in detail to the present comments in 2014.]