Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

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

The Committee notes the information provided by the Government in reply to its earlier comments, including court decisions concerning termination of employment. It notes, in particular, information on measures taken to encourage collective bargaining with a view to address the issue of "temporary absence from work" under Article 6 of the Convention.

Article 2. The Committee notes the Government's statement to the effect that Regulations applicable to public servants provides for sufficient protection to employees of the Government including teachers. It also notes the adoption of the Public Service Act, 1994 (No. 19), which contains provisions concerning protection of public service employees against unjustified dismissal (section 27). The Committee further notes from the Government's report that the Government is in the process of the revision of the Employment Act; the Government indicates that the provisions of the new revised Employment Act will hopefully apply to all categories of employees. The Committee would be grateful if the Government would keep it informed of any developments in this sphere. Please supply a copy of the revised Employment Act as soon as it is adopted.

Articles 4 and 5. In its earlier comments the Committee noted that under section 10 of the Employment Act no valid reason need be given in case of termination of employment with notice, and that no legal guarantees are provided for in regard to invalid reasons for termination listed in paragraphs (b), (c), (d) and (e) of Article 5. The Government however stated in its reply that labour officers do endeavour in practice to solicit the reasons for termination of employment even with notice, and the reasons listed in paragraphs (b), (c), (d) and (e) of Article 5 are not considered in practice as admissible reasons for termination of employment. The Government assured that the necessary legislative measures will be taken to remedy this situation.

The Committee notes from the latest report that the Government is seeking technical assistance in the revision of the labour legislation, including the Employment Act, in order to bring it into conformity with the Convention. The Committee also notes that the draft Labour Relations Act has been already prepared with the assistance of the ILO. It reiterates its hope that appropriate measures will be taken in the very near future in order to revise the national legislation in such a way that it would give full effect to these Articles of the Convention, and asks the Government to indicate, in its next report, any progress achieved in this regard.

Article 7. The Committee notes the provision of section 45 of the Malawi Public Service Commission Regulations (MPSR), as well as the provision of section 27(1)(c) of the Public Service Act of 1994, according to which an employee is given a reasonable period of time prior to termination in order to reply to the charges made against him in writing. As regards the private sector, the Government indicates that there is usually provision for appeal within the grievance procedures, which may be invoked prior to or at the time of termination. The Committee would be grateful if the Government would clarify this issue, describing, in particular, the grievance procedure before termination and indicating more precisely by what method of implementation referred to in Article 1 effect is given to this provision of the Convention in the private sector.

Article 8, paragraph 1. In its earlier comments the Committee noted from the Government's report that workers whose contracts are terminated with notice have no right of appeal in the legislation, but that unfair termination is actionable in practice at common law. It asked the Government to supply a copy of relevant court decisions. The Committee observes that neither of the two court decisions supplied by the Government with its latest report concerns termination of employment with notice. It therefore repeats its request for relevant court decisions in order to be able to assess the implementation of this provision of the Convention, according to which "a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against the termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator". It also repeats its request to include available statistics (such as the number of appeals against unjustified termination, the outcome of such appeals, etc.), in accordance with point V of the report form.

Article 12, paragraph 1. In its earlier comments the Committee noted from the Government's report that a worker earning not more than a stipulated amount of annual wages is entitled to severance pay under the Severance Pay Order (1976) of the Regulation of Minimum Wages and Conditions of Employment Act, and that such severance pay is paid only to employees who have served for a minimum of five years with the same employer. The Committee recalled in this connection that this Article does not allow the entitlement to severance allowance to be made conditional upon the level of wages or length of service with the same employer, though it provides for a possibility to give effect to paragraph 1 either by subparagraph (a) (severance allowance or other separation benefits) or by subparagraph (b) (benefits from unemployment insurance or assistance or other form of social security), or by a combination of both. It asked the Government to adopt measures in order to bring the national legislation into conformity with the Convention on this point. It also asked the Government to indicate how effect is given to this Article in respect of categories of workers expressly excluded from the application of the Severance Pay Order, such as persons employed in the public service, employees of statutory bodies, of traditional authorities and local authorities, as well as apprentices. The Committee notes the Government's intention, expressed in its latest report, to bring the national legislation into conformity with this Article. It hopes that the Government will not fail to adopt appropriate measures, in the course of the legislative reform referred to above, in order to give full effect to this provision of the Convention, and asks the Government to supply, in its next report, information on any progress made in this regard.

Article 13. The Committee notes the information supplied by the Government concerning the setting up of Joint Consultative Committees where managers may discuss with workers' representatives, among other things, issues concerning redundancies that may arise as a result of technological or economic reasons. The Government also informs of the newly issued statement on Trade Unions and Collective Bargaining which concerns the conclusion of collective agreements on various employment issues, including issues of redundancies. The Committee would be grateful if the Government would describe in more detail consultations with workers' representatives, through Joint Consultative Committees referred to above, concerning contemplated redundancies, and indicate how far before the contemplated terminations such consultations take place. Please also provide a copy of the statement on Trade Unions and Collective Bargaining referred to above.

Article 14. The Government indicates that there are no texts providing for administrative measures requiring employers to report the contemplated redundancies to the Ministry of Labour, but that such an obligation on the part of employers is complied with in practice. The Committee would be grateful if the Government would indicate, in its next report, how far before the contemplated terminations the notification thereof to the competent authority must take place. Please also specify the method of implementation, among those listed in Article 1, which gives effect to this provision of the Convention.