Termination of Employment Convention, 1982 (No. 158) - Zambia (Ratification: 1990)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 2(2)–(6) of the Convention. Exclusions and safeguards. The Committee notes the comprehensive information provided in the Government’s report, including information regarding relevant decisions of the Industrial Labour Court. In particular, it notes with interest the adoption of the Employment (Amendment) Act No. 15 of 2015, which amends and is to be read as one with the Employment Act (Chapter 268 of the Laws of Zambia). The Government indicates that the Amendment Act has domesticated the Convention on protection against unjustified dismissals, marking a departure from the common law principle that an employer can terminate the contract of employment at any time and for any or no reason, by giving notice or payment in lieu of notice. The Government states that the amendments also address non-standard forms of employment, including casual contracts, short-term contracts, fixed-term contracts, temporary and part-time employment. The Committee notes the Government’s indication that the employers’ and workers’ organizations were consulted on the amendments. Section 3(2) of the Amendment Act prohibits the engagement of an employee on a casual basis for a job that is permanent in nature. Section 4 of the Amendment Act adds sections 28A, 28B and 28C to the Employment Act. The Committee notes that the new sections provide safeguards against recourse to contracts of employment for a specified period of time, providing for gradually increasing protections the longer the worker remains with the employer. Accordingly, section 28A provides that a casual employee who continues to be employed after the expiration of a six-month period, ceases to be a casual employee and the contract of service is deemed to be a short-term contract. Section 28B provides that an employee on a short-term contract, who continues to be employed after the expiration of that contract, is deemed to be on a fixed-term contract. Finally, section 28C sets out the conditions under which an employee’s fixed-term contract is deemed to become permanent, following its renewal after the expiration of a prescribed cumulative period of service. The Committee requests the Government to provide information on developments in relation to the application of the Employment Act, as amended, and to provide the text of the regulations being formulated by the Ministry of Labour to regulate fixed-term contracts as soon as they become available.

Article 2(4). Special arrangements. Apprentices and pieceworkers. The Government indicates that the Amendment Act excludes apprentices and workers performing piecework from the application of the Convention. It explains that apprentices, while they are workers, are nevertheless not deemed to be employees, whereas workers performing piecework are excluded due to the limited and task-specific nature of their engagement. The Government states that no special arrangements exist for the excluded categories, and they are not covered by the existing protections against termination. The Committee requests the Government to explain in detail the reasons for the exclusion of these workers from coverage under the Convention and whether employers’ and workers’ organizations were consulted in this regard.

Article 2(4). Special arrangements. Defence Force, Security Service, police force and prison services. The Committee recalls that the Convention applies to all branches of economic activity and to all employed persons. In response to its previous comments, the Government informs the Committee that the employment of members of the Defence Force, the Security Service, the Zambia police force and the Zambia prison services are excluded from the scope of the Convention and their employment is governed by specific legislation prescribed by Parliament. The Committee requests the Government to provide information on the manner in which the specific legislation referenced is applied in practice and the extent to which effect has been given to the Convention in respect of these categories of persons.

Articles 4, 5, 7 and 8. Justification for termination. Procedure for appeal. The Committee notes that section 36 of the Employment Act has been amended by the addition of new subsections (3) and (4), which, while they do not define what constitutes a valid reason for termination, set out prescriptively the reasons that will not be considered to be valid justifying termination of an employment contract. The Committee welcomes these amendments, which are aligned with Article 5(a)–(e) of the Convention. In respect of appeals procedures against termination, the Government indicates that, pursuant to section 85(4) of the Industrial and Labour Relations Act (ILRA), the Industrial Relations Court has jurisdiction to hear any disputes between employers and workers. The Committee requests the Government to continue to provide information on the manner in which the Amendment Act and the Employment Act are applied in practice, including available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified dismissals, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided).

Article 9(1) and (2). Burden of proof. Section 85(4) and (5) of the ILRA empowers the Court to do substantial justice and is not bound in such cases by the evidentiary rules applicable to civil or criminal proceedings. The High Court is also empowered under section 36(4) of the Employment Act to examine the reasons given for a termination and make a determination as to whether the termination was justified. The Government indicates that the Amendment Act has not shifted the burden of proof from the principle that “he who alleges must prove”, and the evidentiary rules in the High Court are strictly applied. The Committee welcomes the new section 36(4) of the Employment Act, which provides that family responsibilities do not constitute a valid reason for termination. The Committee recalls that the provisions of the Convention provide that the worker should not have to bear alone the burden of proving that the termination was not justified. The Committee requests the Government to provide information on how section 85(4) and (5) of the ILRA and section 36(4) of the Employment Act are applied in practice, by providing copies of relevant court decisions.

Article 12. Severance allowance and other income protection. The Government indicates that severance pay is generally not payable as a right in Zambia in the event of termination. It is only payable if a worker falls within the scope of the Minimum Wages and Conditions of Employment (General) or (Shopworkers) Orders and a proper officer determines that the circumstances of the case do not warrant summary dismissal. In that event, the employee will be entitled to receive two months’ basic pay for each completed year of service. The Government indicates that, typically, upon termination, an employee would only be entitled to the benefits specified in the conditions of service for non-unionized employees or in the relevant collective agreement. In practice, the benefits payable generally consist of salary and accrued leave days. The Government adds that there is no provision for unemployment insurance, as contemplated in Article 12(b) of the Convention. The Committee requests the Government to indicate the measures taken or envisaged to give full effect to the provisions of Article 12(1).

Article 13(1)(b). Consultation of workers’ representatives. The Committee notes that the Principal Act, as amended, has retained the requirement that workers’ representatives be provided with 30 days’ prior notice and consult on impending terminations. The Committee recalls its previous comments in which it noted that the consultations under Article 13(1)(b) of the Convention also require consultation on measures to be taken to avert the terminations. It notes that section 26B(2)(b)(i) and (ii) of the Principal Act also require that, whenever an employer intends to terminate a contract of employment for reasons of redundancy, the worker’s representatives must be afforded an opportunity for consultations on measures to be taken to minimize the terminations and the adverse effects on the employees, including consultation aimed at finding alternative employment for the affected employees. The Committee notes that section 26B of the Principal Act does not apply to written contracts. In this regard, it notes a Supreme Court decision referenced by the Government, holding that where conditions are set out in a written contract of service, the employer had a duty to adhere to those conditions, which in that case required the employer to minimize the impact of the redundancy. The Committee reiterates its request that the Government indicate the measures taken to ensure that workers’ representatives are afforded the opportunity for consultation on measures to be taken to avoid or reduce the number of terminations in the context of oral contracts of service under section 26B of the Principal Act.

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

Practical information on the application of the Convention. The Committee notes the information provided in the Government’s brief report received in September 2011. The Government indicates that it will take steps to update case records to enable a trend analysis by recording the gender of the workers being terminated from employment. The Committee requests the Government to provide general information on the manner in which the Employment Act is applied in practice, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons (Part V of the report form).

Article 2(4)–(6) of the Convention. Workers excluded from the scope of the Convention. The Government indicates that the Defence Force and the Security Service have in-house mechanisms on termination of employment through military tribunals. The Committee previously noted that section 2(1) of the Employment Act excludes from its scope members of the Zambia police force and members of the Zambia prison services. It also noted that section 2 of the Industrial Relations Act excludes members of the Zambia Security Intelligence Service and registrars of the courts. The Committee recalls that these categories of employed persons were not excluded in the Government’s first report on the application of the Convention. The Committee invites the Government to clarify how it ensures the application of the Convention to all employees by providing examples of decisions rendered concerning these categories of employed persons on the matters covered by the Convention and to supply copies of any applicable legislation.

Articles 4 and 5. Valid reason for termination of employment. The Government indicates that the Employment Act will be amended to ensure that termination without a valid reason is prohibited. The Committee recalls that Article 4 of the Convention does not merely require the employer to provide justification for the dismissal of a worker, but requires, above all, that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking. The Committee invites the Government to include in its next report information on any initiatives taken to give full effect to Articles 4 and 5 so that all workers within the scope of the Convention are not terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

Article 5(d). Family responsibilities. The Government indicates that the comments formulated in previous direct requests on family responsibilities not constituting a valid reason for termination will be considered during the review of the Employment Act by the Tripartite Consultative Labour Council (TCLC). The Committee invites the Government to include in its next report information on the progress of the discussions held by the TCLC in this regard. Please also include a copy of any rulings on whether the “status of the employee” under section 108 of the Industrial and Labour Relations Act was extended such that the family responsibilities of an employee do not constitute valid grounds for termination.

Article 9(3). Procedure of appeal against termination. The Government reports that proper officers are empowered by law to determine whether termination is based on the operational requirements of the undertaking. The Government refers to section 26B(2)(c) of the Employment Act and to section 9 of Statutory Instruments numbers 1 and 2. The Committee invites the Government to include in its next report copies of the said Statutory Instruments.

Article 13(1)(b). Consultation of workers’ representatives. The Government reports that legislation provides for consultation with workers’ representatives in the event of termination of employment for reasons of redundancy. Currently, notice is given to workers’ representatives at least 30 days before the effective date of termination. The Committee further notes the Government’s indication that it will consider increasing the notice period to 90 days to allow for more negotiations, potentially limiting the number of jobs lost. The Committee previously noted that section 26B(2)(b)(i) of the Employment Act provides that whenever an employer intends to terminate a contract of employment for reasons of redundancy, the employer shall afford the representatives of the employee an opportunity for consultations on the measures to be taken to minimize the terminations and the adverse effects on the employees. In its previous direct request, the Committee pointed out that Article 13(1)(b) of the Convention also requires consultation on measures to be taken to avert the terminations. The Committee invites the Government to take measures to give full effect to Article 13(1)(b) of the Convention in order to give the workers’ representatives concerned an opportunity for consultation on measures to be taken to avert or to minimize the terminations.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information provided in the Government’s report received in September 2008, including copies of the Employment Act, Chapter 236 of the Laws of Zambia, as amended by Act No. 15 of 1997, which were supplied further to the Committee’s previous comment.

1. Article 2, paragraphs 4–6, of the Convention. The Committee notes that section 2(1) of the Employment Act excludes members of the Zambia police force and members of the Zambia prison services from its scope. Furthermore, section 2 of the Industrial Relations Act, 1993, excludes members of the Zambia Security Intelligence Service and registrars of the courts. The Committee recalls that, by virtue of Article 2(6), each member is required to list in its first report on the application of the Convention any categories which may have been excluded in pursuance of Article 2(4) and (5). In its first report received in August 1992, as clarified by its subsequent report in January 1994, the Government confirmed that employees of an employer which is adjudged or declared bankrupt and employees of a company which is being wound up would be excluded from the application of the Convention. The Government is thus requested to clarify how it ensures the application of the Convention to all employees and to supply copies of any applicable legislation.

2. Articles 4 and 5. The Committee notes from the Government’s report that section 26A of the Employment Act gives effect to Article 4. Section 26A provides that “an employer shall not terminate the service of an employee on grounds related to the conduct or performance of an employee without affording the employee an opportunity to be heard on the charges laid against him”. The Committee observes that this provision, on a worker’s opportunity to defend himself while giving effect to Article 7, does not prohibit the termination of an employee without a valid reason as is required by Articles 4 and 5. The Committee asks the Government to amend the legislation to give full effect to Articles 4 and 5 so that all workers within the scope of the Convention are not terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

3. Article 5, paragraph (d). The Government again indicates in its report that the issue of whether family responsibilities of the employee shall not constitute a valid reason for termination of employment has been the subject of discussions amongst the stakeholders for some time now. Nevertheless, no consensus was reached to introduce a specific amendment in this regard. The Government indicates, however, that although no test cases have been brought following the amendment of section 108 of the Industrial and Labour Relations Act, in which the “social status of the employee” was replaced by “status of employee”, there may be scope for a wider interpretation of “status of the employee” to include family responsibilities. The Committee would appreciate being kept informed of the progress of the tripartite discussions in this regard, and receiving a copy of any rulings on whether the “status of the employee” under section 108 of the Industrial and Labour Relations Act, was extended such that the family responsibilities of the employee do not constitute a valid ground for termination.

4. Article 9, paragraph 3. The Government is invited to clarify in its next report whether the proper officers are empowered in cases of appeal to determine whether the termination was indeed for the reason of operational requirements of the undertaking, establishment or service.

5. Article 13, paragraph 1(b). The Committee notes that section 26B(2)(b)(i) of the Employment Act provides that whenever an employer intends to terminate a contract of employment for reasons of redundancy, the employer shall afford the representatives of the employee an opportunity for consultations on the measures to be taken to minimize the terminations and the adverse effects on the employees. The Committee points out that Article 13(1)(b) also requires consultation on measures to be taken to avert the terminations. The Committee asks the Government to take measures to give full effect to Article 13(1)(b) of the Convention in order to give the workers’ representatives concerned an opportunity for consultation on measures to be taken to avert or to minimize the terminations.

6. Part V of the report form. The Government is requested to provide general information on the manner in which the Employment Act is applied in practice, including, for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided), and on the number of terminations for economic or similar reasons.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its 1999 direct request, which read as follows:

1. Article 2, paragraph 3. In response to previous comments, the Government reports that there has been no change which would provide adequate safeguards against recourse to contracts of employment for a specified period of time for the purpose of avoiding the protections provided in the Convention. Please indicate the measures taken or envisaged to provide adequate safeguards.

2. Article 2, paragraphs 4 to 6. Further to its previous comments, the Committee notes the Government’s reply and requests a copy of Employment Act No. 9 of 1995.

3. Article 4. The Committee notes that some of the collective agreements forwarded with the Government’s report do not require a valid reason for termination of employment but only specify a minimum period of notice or other procedures for termination of employment. The Committee requests a copy of the amendments to the Employment Act, and would appreciate receiving further information on what provisions exist to ensure that for all workers included within the scope of the Convention their employment shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

4. Article 5(d). In reply to previous comments, the Government states that no tripartite consensus has yet been reached on whether family responsibility shall not constitute a valid reason for termination of employment. section 108 of the Industrial and Labour Relations Act has been amended such that the prohibited grounds for dismissal now include “status of the employee” which could be interpreted to include family responsibility. However, no test case has yet gone before the tribunal. The Committee would appreciate being kept informed of the progress of the tripartite discussions and receiving a copy of any rulings on whether “status of the employee” in section 108 includes family responsibility.

5. Article 6, paragraph 1. The Committee notes that copies of the Minimum Wages and Conditions of Employment (General) (No. 2) Order, 1992, the Minimum Wages and Conditions of Employment (Shop Workers) Order, 1992, and the General Orders, requested in the previous comments, have not been sent. It asks the Government to forward such copies with its next report.

6. Article 12, paragraph 1(a). The Committee notes the information provided in response to its previous comments. It recalls that a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to (a) a severance allowance or other separation benefits conditional on length of service and the level of wages, or (b) unemployment benefits or assistance, or (c) a combination of both. Please clarify how this provision of the Convention is given effect in practice.

7. Article 7 and Article 14, paragraph 2. The Committee notes the Government’s statement that the Employment Act has been amended by Act No. 15 of 1997 to replace section 26 with sections 26A and 26B. The Government refers to these new sections in response to the points previously raised regarding these provisions of the Convention. The Committee defers further comments on these Articles until after it has had the opportunity to examine the amended Employment Act.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its 1999 direct request, which read as follows:

Article 2, paragraph 3. In response to previous comments, the Government reports that there has been no change which would provide adequate safeguards against recourse to contracts of employment for a specified period of time for the purpose of avoiding the protections provided in the Convention. Please indicate the measures taken or envisaged to provide adequate safeguards.

Article 2, paragraphs 4 to 6. Further to its previous comments, the Committee notes the Government’s reply and requests a copy of Employment Act No. 9 of 1995.

Article 4. The Committee notes that some of the collective agreements forwarded with the Government’s report do not require a valid reason for termination of employment but only specify a minimum period of notice or other procedures for termination of employment. The Committee requests a copy of the amendments to the Employment Act, and would appreciate receiving further information on what provisions exist to ensure that for all workers included within the scope of the Convention their employment shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

Article 5(d). In reply to previous comments, the Government states that no tripartite consensus has yet been reached on whether family responsibility shall not constitute a valid reason for termination of employment. section 108 of the Industrial and Labour Relations Act has been amended such that the prohibited grounds for dismissal now include “status of the employee” which could be interpreted to include family responsibility. However, no test case has yet gone before the tribunal. The Committee would appreciate being kept informed of the progress of the tripartite discussions and receiving a copy of any rulings on whether “status of the employee” in section 108 includes family responsibility.

Article 6, paragraph 1. The Committee notes that copies of the Minimum Wages and Conditions of Employment (General) (No. 2) Order, 1992, the Minimum Wages and Conditions of Employment (Shop Workers) Order, 1992, and the General Orders, requested in the previous comments, have not been sent. It asks the Government to forward such copies with its next report.

Article 12, paragraph 1(a). The Committee notes the information provided in response to its previous comments. It recalls that a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to (a) a severance allowance or other separation benefits conditional on length of service and the level of wages, or (b) unemployment benefits or assistance, or (c) a combination of both. Please clarify how this provision of the Convention is given effect in practice.

Article 7 and Article 14, paragraph 2. The Committee notes the Government’s statement that the Employment Act has been amended by Act No. 15 of 1997 to replace section 26 with sections 26A and 26B. The Government refers to these new sections in response to the points previously raised regarding these provisions of the Convention. The Committee defers further comments on these Articles until after it has had the opportunity to examine the amended Employment Act.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

Article 2, paragraph 3. In response to previous comments, the Government reports that there has been no change which would provide adequate safeguards against recourse to contracts of employment for a specified period of time for the purpose of avoiding the protections provided in the Convention. Please indicate the measures taken or envisaged to provide adequate safeguards.

Article 2, paragraphs 4-6. Further to previous comments, the Committee notes the Government's reply and requests a copy of Employment Act No. 9 of 1995.

Article 4. The Committee notes that some of the collective agreements forwarded with the Government's report do not require a valid reason for termination of employment but only specify a minimum period of notice or other procedures for termination of employment. The Committee requests a copy of the amendments to the Employment Act, and would appreciate receiving further information on what provisions exist to ensure that for all workers included within the scope of the Convention their employment shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

Article 5(d). In reply to previous comments, the Government states that no tripartite consensus has yet been reached on whether family responsibility shall not constitute a valid reason for termination of employment. Section 108 of the Industrial and Labour Relations Act has been amended such that the prohibited grounds for dismissal now include "status of the employee" which could be interpreted to include family responsibility. However, no test case has yet gone before the tribunal. The Committee would appreciate being kept informed of the progress of the tripartite discussions and receiving a copy of any rulings on whether "status of the employee" in section 108 includes family responsibility.

Article 6(1). The Committee notes that copies of the Minimum Wages and Conditions of Employment (General) (No. 2) Order, 1992, the Minimum Wages and Conditions of Employment (Shop Workers) Order, 1992, and the General Orders, requested in the previous comments, have not been sent. It asks the Government to forward such copies with its next report.

Article 12, paragraph 1(a). The Committee notes the information provided in response to its previous comments. It recalls that a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to (a) a severance allowance or other separation benefits conditional on length of service and the level of wages, or (b) unemployment benefits or assistance, or (c) a combination of both. Please clarify how this provision of the Convention is given effect in practice.

Article 7 and Article 14, paragraph 2. The Committee notes the Government's statement that the Employment Act has been amended by Act No. 15 of 1997 to replace section 26 with sections 26A and 26B. The Government refers to these new sections in response to the points previously raised regarding these provisions of the Convention. The Committee defers further comments on these Articles until after it has had the opportunity to examine the amended Employment Act.

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

The Committee notes the information provided by the Government in reply to its previous direct request. It notes, in particular, the adoption of the Industrial and Labour Relations Act, 1993, which contains, inter alia, provisions concerning restriction on discrimination in employment.

Article 2, paragraph 3, of the Convention. In its previous comments the Committee asked the Government to indicate whether adequate safeguards had been provided in so far as necessary, in accordance with this Article, against recourse to contracts of employment for a specified period of time, the aim of which is to avoid the protection resulting from the Convention. The Government indicates in its reply that such contracts are required to be in writing and attested by a proper officer, and that the proper officer will not attest a contract of service unless it meets the requirements enumerated in section 30 of the Employment Act. The Committee observes in this connection that, according to section 28(1)(a) of the above-mentioned Act, the contract shall be made in writing if made for a period of, or exceeding six months, and that, consequently, a contract for a shorter period may be made orally, in accordance with section 17 of the same Act, which does not require an attestation by a proper officer. Besides, the Committee also observes that section 30 of the Act referred to by the Government does not provide for any safeguards against recourse to contracts of employment for a specified period of time, nor contains any requirements of this kind. It therefore hopes that the Government will adopt measures with a view to provide for such safeguards, in order to give effect to this provision of the Convention (in this connection, it draws again the Government's attention to Paragraph 3 of Recommendation No. 166).

Article 2, paragraphs 4, 5 and 6. The Committee notes the Government's statement to the effect that, as a result of the lapse in November 1991 of the effect of the Employment (Special Provisions) Regulations, 1989, all categories of public service employees, as well as employees of a small-scale enterprise with a total number of employees less than five, are no longer excluded from the application of the Convention. The Government indicates, however, that in spite of the lapse of the above-mentioned Regulations, employees of the employer who is adjudged or declared bankrupt and employees of a company which is being wound up continue to be excluded from the application of the Convention. The Committee would be grateful if the Government would indicate, in its next report, any national provision which has repealed the Regulations of 1989 referred to above and supply a copy of the relevant text. Please also indicate any national provision which excludes the above-mentioned categories of workers from the application of the Convention. Please state whether the organizations of employers and workers concerned were consulted on such exclusions. Please also indicate the position of law and practice regarding the excluded categories, in accordance with paragraph 6, as well as any changes that may have occurred regarding the extent to which effect has been given or is to be given to the Convention in respect of the excluded categories.

Article 4. The Committee notes that, given repeal of the Employment (Special Provisions) Regulations of 1989, the Government refers, as regards methods of implementation of this Article, to section 64 of the Employment Act and to sections 85(4) and 108 of the Industrial and Labour Relations Act, 1993, as well as to collective agreements. The Committee notes that section 64 of the Employment Act referred to above contains provisions concerning settlement of disputes arising out of the non-compliance with the terms of a contract of employment, which may include, in particular, misconduct, neglect or ill-treatment of any party to a contract, such aggrieved party being entitled to report the matter to a labour officer for settlement. It also notes that section 85(4) of the Industrial and Labour Relations Act referred to above provides for the jurisdiction of the Industrial Relations Court to hear and determine any dispute between an employer and employee, and that section 108 of the same Act provides for restriction on discrimination in employment, laying down a list of grounds which shall not constitute valid reasons for termination. The Committee observes that neither of the above-mentioned national provisions contains an express prohibition to terminate the employment of a worker without a valid reason, if such termination is not founded on one of the grounds of discrimination prohibited by section 108 referred to above. It therefore asks the Government to consider enacting a provision expressly prohibiting termination of employment without a valid reason. It also asks the Government to describe in detail how the reasons considered to be valid reasons for termination are defined in collective agreements referred to in its report, and to supply copies of such collective agreements, in order to enable the Committee to assess the implementation of this Article of the Convention.

Article 5(d). The Committee notes with interest the Government's statement to the effect that consideration will be given to alter the provisions of section 108 of the Industrial and Labour Relations Act, 1993 with a view to include "family responsibilities" among the grounds of discrimination laid down in this section. It hopes that such an amendment will be introduced in the near future and asks the Government to report any progress made in this regard.

Article 6, paragraph 1. The Committee notes the Government's statement in the report concerning the amendment of section 54(1) of the Employment Act, so that the provisions of this section are applicable to all categories of employees regardless of remuneration. The Government indicates that the Minimum Wages and Conditions of Employment (General) (No. 2) Order, 1992 and the Minimum Wages and Conditions of Employment (Shop Workers) (No. 2) Order, 1992 provide for paid sick leave in regard to all employees covered by these instruments irrespective of their wage-earnings. As regards those employees who are not covered by the above-mentioned instruments, the Government states that the provisions concerning sick leave are contained in General Orders (in respect of public service employees), Joint Collective Agreement (in respect of employees employed by District Councils) and various collective agreements (in respect of other categories of employees). The Committee would be grateful if the Government would supply, with its next report, copies of the two Orders of 1992, as well as of General Orders, Joint Collective Agreement and various collective agreements referred to above.

Article 7. The Government states, with reference to disciplinary proceedings contained in various collective agreements, that an employee is normally given an opportunity to state his case before the disciplinary authority prior to a decision concerning his dismissal. It also indicates that the proper officer, in the course of his investigations, has to make sure that the employee has been given a fair hearing. The Committee would be grateful if the Government would supply copies of collective agreements which contain provisions giving an employee an opportunity to defend himself against the allegations made, prior to termination of employment.

Article 12, paragraph 1(a). The Government refers in its reply to section 48(4) of the Employment Act, which provides for payment of all wages, including overtime pay and allowances additional to basic pay, on the day upon which a contract of service is lawfully terminated. The Committee would be grateful if the Government would indicate whether "allowances additional to basic pay" referred to in this section cover also a severance allowance or other separation benefits, in accordance with national law and practice. The Committee also notes the Government's statement to the effect that various collective agreements provide for payment of long-service bonus upon attainment of at least five years' continuous service. Please indicate whether such bonus is paid only in connection with termination of employment, as a form of separation benefit, or is it payable irrespective of termination, and supply copies of the relevant collective agreements.

Article 14, paragraph 2. In its previous comments the Committee noted the Government's statement to the effect that the applicability of paragraph 1 of this Article is limited to terminations of more than five workers, and asked the Government to indicate whether effect is given to such limitation by any provision of national laws or regulations. The Government states in its reply that there is no law limiting the number of workers whose termination of employment is contemplated. The Committee would be grateful if the Government would indicate whether the limitation referred to in the Government's first report is given effect in some other manner, by the methods of implementation enumerated in Article 1 of the Convention.

Point V of the report form. The Committee notes statistical information supplied by the Government concerning redundancies which took place during the reporting period. Please continue to provide general information on the manner in which the Convention is applied in practice, including for example statistics, if available, on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded, etc.) and on the number of terminations for economic or similar reasons.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes with interest the information provided by the Government in its first report on the application of the Convention. It would be grateful if the Government would supply, in its next report, additional information on the following points:

Article 2, paragraph 3, of the Convention. The Commitee notes the Government's statement that the bulk of Zambian workers are not employed on contracts of employment for a specified period of time. Please indicate whether adequate safeguards have been provided in so far as necessary, in accordance with this Article, against recourse to such contracts of employment, the aim of which is to avoid the protection resulting from the Convention (see in this connection Paragraph 3 of Recommendation No. 166).

Article 2, paragraphs 4, 5 and 6. The Committee notes the Government's intention to exclude from the application of the Convention (except for Articles 4, 5, 6 and 7) public service employees, employees of a small-scale enterprise with a total number of employees less than five, employees of an employer who is adjudged or declared bankrupt, and employees of a company which is being wound up. It also notes the Government's indication that there is currently no valid exemption made by the Minister under section 2(2) of the Employment Act. Please indicate measures taken or contemplated by the competent authority or through the appropriate machinery in the country, after consultation with the organizations of employers and workers concerned, to exclude these categories of employed persons. Please provide, in case any of these categories have been or are excluded under paragraph 4, information on the special arrangements which, as a whole, provide protection at least equivalent to that afforded under the Convention. Please also indicate the position of law and practice regarding the excluded categories, as provided under paragraph 6, and indicate any changes that may have occurred regarding the extent to which effect has been given or is proposed to be given to the Convention in respect of the excluded categories.

Article 4. The Committee notes that section 4(1)(b) of the Employment (Special Provisions) Regulations of 1989 limits the grounds on which an employer may summarily dismiss an employee to wilful disobedience, misconduct, neglect or incompetence. It also notes that in other cases the employment of an employee may be terminated on the condition that there is approval of the proper officer in writing (section 4(1)(a) of the Regulations). The Government states that, in practice, such approval is given only when investigation has been conducted and such investigation reveals that the termination is justified and based on the capacity or conduct of the employee or operational requirements of the undertaking. The Committee would be grateful if the Government would describe in more detail the criteria used by the proper officer in the course of the investigation procedure with a view to defining valid reasons for termination, and supply, with its next report, copies of the relevant decisions of the proper officer or other information concerning the methods of implementation of this provision of the Convention.

Article 5(d). Please indicate by what method of implementation referred to in Article 1 it is ensured that "family responsibilities" shall not constitute a valid reason for termination.

Article 6, paragraph 1. The Committee notes that section 54(1) and (4), of the Employment Act provides for prohibition to terminate a contract of employment during the period of temporary incapacity due to sickness or accident. However, employees whose wages exceed 1,500 kwacha per annum or who become temporarily incapacitated in consequence of sickness or accident occasioned by their own default, seem to be excluded from the application of this provision. Please indicate how effect is given to this Article in respect of these categories of employees.

Article 7. Please indicate whether an employee is provided an opportunity to defend himself against the allegations made in the course of the investigation conducted by the proper officer prior to the approval of the termination under section 4(1)(a) of the Employment (Special Provisions) Regulations of 1989, or before he is summarily dismissed under section 4(1)(b) of the above Regulations.

Article 12, paragraph 1(a). Please state whether workers are entitled to a severance allowance or other separation benefits in case of termination for any reason other than redundancy.

Article 14, paragraph 2. The Committee notes the Government's statement that the applicability of paragraph 1 of this Article is limited to terminations of more than five workers. Please indicate whether effect is given to such limitation by any provision of national laws or regulations and, if so, in what manner.

Point V of the report form. Please provide general information on the manner in which the Convention is applied in practice, including for example, available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded, etc.) and on the number of terminations for economic or similar reasons.