Demande directe (CEACR) - adoptée 2024, publiée 113ème session CIT (2025)

Convention (n° 158) sur le licenciement, 1982 - Zambie (Ratification: 1990)

Article 2(3) of the Convention. Adequate safeguards in the event of recourse to contracts of employment for a specified period. The Committee notes the Government’s indication that the Employment Act (Cap 268) was repealed by the Employment Code Act (ECA) No. 3 of 2019, which now regulates employment contracts as follows: (i) pursuant to section 19, a contract of employment may take a form of a permanent contract, a contract for a long term, a contract for a specific task, or a contract for a probationary period not exceeding three months; (ii) section 3, defines short-term, part-time and piece work contracts; (iii) section 7 on casualization, prohibits the engagement of an employee, without permissible reason, on a temporary or fixed basis for a job that is permanent in nature. The Committee notes with interest that sections 19(1)(d) and 27 of ECA introduce safeguards against repeated recourse to probationary contracts: (i) workers on probation shall have the status of employees; (ii) probationary contracts may only be renewed once, for a maximum period of three months; (iii) a notice of termination of at least 24 hours is required; and (iv) if the termination was not performance-related, an employee who is re-employed by the same employer for the same job within a period of two years shall not be subject to probation. The Committee further notes that section 3 of ECA limits the casual work to a period of less than six months and short-term contracts to a period not exceeding 12 months, while long-term contracts are defined as contracts exceeding a period of 12 months and renewable for a further term. The Committee nevertheless observes that while section 3 prescribes that a long-term contract is renewable for a further term, it does not specify any conditions for this extended term. It further observes that, beyond the limitation in time of short-term contracts, no safeguards have been put in place with a view to avoiding the use of these contracts, including under which conditions they may be renewed. In addition, it notes that the ECA has not retained sections 28A, 28B and 28C of the Employment Act (CAP 268), which provided for safeguards against recourse to contracts of employment for a specified period of time, that is by gradually increasing protections the longer the worker remains with the employer. The Committee recalls that Article 2(3) of the Convention calls for adequate safeguards to be provided 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 Committee requests the Government to provide information on how effect is given in practice to the provisions of the Employment Code Act (ECA) No. 3 of 2019, in particular, to indicate measures that limit recourse to successive fixed-term contracts, as required under Article 2(3) of the Convention. It further requests the Government to provide copies of relevant court decisions and to supply information on the total number of contracts for a specified period of time compared with contracts for an indefinite duration.

Article 2(4). Special arrangements. Apprentices. The Committee notes with interest the information provided in the report that section 3 of ECA explicitly recognizes apprentices as employees. The Committee requests the Government to continue to provide updated information on the manner in which the Convention is applied in practice with regard to apprentices, including copies of relevant court decisions concerning these categories of workers on the matters covered by the Convention.

Article 2(4). Special arrangements. Defence Force, Security Service, police force and prison services. In its report, the Government confirms that members of the Defence Force, the Security Service, the Zambia police force and the Zambia prison services are excluded from the application of the Convention. It further indicates specific legislation that regulates procedures relating to termination of employment of these categories of workers: (i): Defence Act, Cap 106; (ii) Zambia Police Act, Cap 107; (iii) Zambia Prisons Act, Cap 97; (iv) Zambia National Service Act, Cap 121. The Committee once again requests the Government to indicate how the specific legislation referred to give effect to Article 2(4) of the Convention, and to provide copies of referenced legislation and decisions rendered concerning these categories of workers on the matters covered by the Convention.

Articles 4, 5 and 8. Justification for termination. Procedure for appeal. In reply to the Committee’s previous comments, the Government indicates that section 52 of the Employment Code Act No. 3 of 2019 gives effect to Articles 4 and 5 of the Convention. The Committee notes that this section, in the same way as section 36 of the repealed Employment Act (Cap 268), does not define what constitutes a valid reason for termination but rather lists the reasons not considered valid in justifying termination of an employment contract. The Committee notes that section 52(4), in comparison with section 36 of the repealed Employment Act (Cap 268), introduces additional invalid reasons for termination: (i) family responsibilities relating to taking care of a member of an employee’s immediate family; (ii) absence from work during maternity or paternity leave; and (iii) temporary absence from work during sick leave or injury. The Committee requests the Government to provide information on the practical application of section 52 of the Employment Code Act No. 3 of 2019, in particular, to indicate how each of the invalid grounds for termination is applied in practice, and to provide copies of judicial decisions examining the grounds for termination.Furthermore, noting that the Government does not provide the information previously requested regarding appeals against unjustified dismissal, the Committee reiterates its request that the Government provide statistics on the activities of the appellate bodies (such as the number of appeals against unjustified dismissal, the outcome of such appeals, the nature of the remedies awarded and the average time taken for an appeal to be decided).

Article 9(1) and (2). Burden of proof. In its previous comments, the Committee noted that pursuant to section 85(5) of the Industrial and Labour Relations Act (ILRA), the Court shall not be bound by the rules of evidence in civil and criminal proceedings and that the main object of the Court shall be to bring substantial justice between the parties. It also noted the Government’s indication that the Employment Act (CAP 268), as amended in 2015, still did not, however, shift the burden of proof from the principle that “he who alleges must prove”. In this respect, the Committee notes with interest that the Employment Code Act (ECA) No. 3 of 2019, which repealed the Employment Act (Cap 268), explicitly provides in section 52(5) that “an employer shall bear the burden of proof that the termination of a contract of employment was fair and for a valid reason”. The Committee welcomes this section, which gives effect to Article 9(2)(a) of the Convention. The Committee notes however that section 85(5) of the Industrial and Labour Relations Act differs from section 52(5) of the Employment Code Act (ECA) No. 3 of 2019 as regards the burden of proof. The Committee also notes that the Government provides references to court decisions concerning the application of Article 9(1) and (2), without providing copies of these decisions in the report. In view of the above, the Committee requests the Government to clarify the situation as regards how the national law and practice gives effect to the Convention and to provide copies of any relevant court decisions.

Article 12. Severance allowance and other income protection. The Committee notes with satisfaction the Government’s indication that the Employment Code Act (ECA) No. 3 of 2019, which repeals the Employment Act (Cap 268), explicitly regulates a severance pay in case of termination. Pursuant to section 54 of ECA, the employer is obliged to provide for a severance pay in, inter alia, the following cases: (i) when contract of employment of a fixed duration has been terminated, severance pay shall be a gratuity at the rate of not less than 25 per cent of basic pay earned during the contract period (section 54(1)(c)); (ii) where termination is by reason of redundancy, the severance pay shall be a lump-sum of two months basic pay for each year of service under the contract of employment (section 54(1)(d)). This section further stipulates that it is for the minister to prescribe the formula for the severance pay. The Committee further notes that section 54(3) inter alia excludes from severance payments employees engaged on a long-term contract. Nonetheless, pursuant to section 73, employees under long-term contracts (i.e. contracts exceeding a period of twelve months) are entitled to gratuity (i.e. not less than 25 per cent of basic pay earned during the contract period), which is payable at the end of a contract or prorated if employment is terminated before the end of contract. The Committee requests the Government to clarify: (i) whether section 54(1)(c) applies to employees engaged on permanent and short-term contracts (i.e. contracts not exceeding a period of twelve months); and (ii) whether severance pay under section 54(1)(d) (redundancies) is guaranteed to all employees, irrespective of the type of the contract. The Government is further requested to provide a copy of the ministerial regulations prescribing the severance pay calculation formula as well as information on the implementation in practice since its adoption in 2019 of the new regimen applicable to severance pay.

Article 13(1)(b). Consultation of workers’ representatives. Article 13(1)(b). Consultation of workers’ representatives. In its report, the Government indicates that section 55 of ECA, which applies to all types of employment contracts, regulates consultation of workers’ representatives. The Committee nevertheless notes that section 55(2)(b) of ECA has retained the requirement of section 26B(b) of the Employment Act (CAP 268), which is 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. The Committee recalls its previous comments that the consultations under Article 13(1)(b) of the Convention also require consultation on measures to be taken to avert the terminations. The Committee therefore asks the Government to bring section 55(2)(b) of ECA in line with the requirements of Article 13 of the Convention, so as to ensure that workers’ representatives are afforded the opportunity for consultation on measures to be taken to avert the terminations, including finding alternative employment.