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Malawi
 


Source and scope of regulations - 2013    

References
Remarks:
  • New amendments to the Employment Act entered into force in May 2011.
  • Employment Act [EA], No. 6 of 2000
    Date: 14 May 2000 (view in NATLEX »)
  • Employment Amendment Act, No. 27 of 2010 (date of entry into force: 1st June 2011)
    Date: 29 Aug 2010; view website »
  • Labour Relations Act [LRA], No. 16 of 1996
    Date: 23 May 1996 (view in NATLEX »)
Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: police; army; prison personnel
Remarks:
  • Art. 2 (2) EA: except for those employed in a civilian capacity.

Types of employment contracts - 2013    

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Maximum probationary (trial) period: 12 month(s)

Remarks:
  • Art. 26 (1) EA: a probationary period may be included in a contract of employment in respect of a skilled worker provided it does not exceed 12 months.

Fixed term contract (FTC):
  • FTC regulated: Yes
  • Valid reasons for FTC use: objective and material reasons
    Remarks:
    • No reasons specified in the LC.
      However, according to art. 28 (3) LC, fixed-term contracts used to fill in on a lasting basis positions connected with the normal and permanent activity of an undertaking shall be deemed concluded for an unspecified period of time.
  • Maximum number of successive FTCs: no limitation
    Remarks:
    • No statutory limitation found in the legislation reviewed.
  • Maximum cumulative duration of successive FTCs: no limitation
    Remarks:
    • No statutory limitation found in the legislation reviewed.

Substantive requirements for dismissals (justified and prohibited grounds) - 2013    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • No explicit mention of an obligation to state the reasons for dismissal.
    However see the following provisions:
    * Art. 31 (1) (f) EA on the certificate of termination : The reasons for termination must be indicated in the certificate, if so requested by the employee;
    * Art 57 (2) EA: The employment cannot be terminated for reasons connected with the conduct or the capacity of the employee before the employee is given the opportunity to defend himself against the allegations made.

    * Art. 61 (1) EA: In any claim or complaint, the employer shall provide the reason for dismissal. If he or she fails to do so there shall be a presumption that the dismissal was unfair.


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • Art. 57 (1) EA: "valid reason for termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking".


Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; temporary work injury or illness; race; colour; sex; religion; political opinion; social origin; nationality/national origin; trade union membership and activities; disabilities; language; participation in a lawful strike; property; birth; ethnic origin
Remarks:
  • Art. 57 (3) EA: invalid reasons for dismissals.
    See also the general provision of non-discrimination (including in respect of termination of employment): art. 5 (1) EA.
    On pregnancy, see: art 49(1) EA: an employer who terminates the employment of an employee because of her pregnancy or for any reason connected with her pregnancy shall be guilty of an offence and liable to a fine and 5 years imprisonment.


Workers enjoying special protection: no protected groups

Procedural requirements for individual dismissals - 2013    

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Notification to the worker to be dismissed: written

Remarks:
  • Art. 29(1) EA

Notice period:
Remarks:
  • Art. 29 (1) EA: Notice period for terminating a contract for an unspecified period of time varies between 1 day and one month depending on the frequency of pay and/or the length of service, as follows:
    1) workers paid on a monthly basis: 1 month's notice;
    2) workers paid on a fortnightly basis:
    - 1 fortnight's notice for less than 5 years of service
    - 1 month's notice for at least 5 years of service;
    3) workers paid on a weekly basis:
    - 1 week's notice for less than 2 years of service
    - 1 fortnight's notice between 2 and less than 5 years of service
    - 1 month's notice for at least 5 years of service;
    4) workers paid on a hourly basis:
    - 1 day's notice for less than 6 months of service
    - 1 week notice between 6 months and less than 2 years of service
    - 1 fortnight's notice between 2 and less than 5 years of service
    - 1 month's notice for at least 5 years of service.

    Art. 29 (3) EA: The minimum period of notice in respect of a contract of employment for a specified period of time shall be 14 days.
    • tenure ≥ 6 months
      • monthly paid workers - 1 month(s).
      • fortnightly paid workers - 2 week(s).
      • hourly or weekly paid workers - 1 week(s).
      • fixed-term workers - 14 day(s).
    • tenure ≥ 9 months
      • monthly paid workers - 1 month(s).
      • fortnightly paid workers - 2 week(s).
      • hourly or weekly paid workers - 1 week(s).
      • fixed-term workers - 14 day(s).
    • tenure ≥ 2 years
      • monthly paid workers - 1 month(s).
      • fortnightly, weekly or hourly paid workers - 2 week(s).
      • fixed-term workers - 14 day(s).
    • tenure ≥ 4 years
      • monthly paid workers - 1 month(s).
      • fortnightly, weekly or hourly paid workers - 2 week(s).
      • fixed-term workers - 14 day(s).
    • tenure ≥ 5 years
      • monthly paid workers - 1 month(s).
      • fortnightly, weekly or hourly paid workers - 1 month(s).
      • fixed-term workers - 14 day(s).
    • tenure ≥ 10 years
      • monthly paid workers - 1 month(s).
      • fortnightly, weekly or hourly paid workers - 1 month(s).
      • fixed-term workers - 14 day(s).
    • tenure ≥ 20 years
      • monthly paid workers - 1 month(s).
      • fortnightly, weekly or hourly paid workers - 1 month(s).
      • fixed-term workers - 14 day(s).

    Pay in lieu of notice: Yes

    Remarks:
    • Art. 30 (2) EA

    Notification to the public administration: No

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2013    

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    Definition of collective dismissal (number of employees concerned):
    No legal definition.
    No specific procedure attached to dismissal based on "operational requirements" in the LC. However specific requirements have been established by case-law.

    Remarks:
    • Art. 57 (1) EA : "operational requirements of the undertaking" can constitute a valid reason for dismissing an employee.
      However, there is no mention in the Labour Code to when such dismissal could be described as collective. In addition, there are no specific statutory requirements such as consultation with trade union or notification to the labour administration for dismissals concerning more than one employees.

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • No statutory requirements.
      However, the Courts have ruled that in cases of redundancies and other mass dismissals for operational needs, the employer must comply with art. 13 and 14 of the ILO Convention 158 on consultation with the worker's representatives and notification to the administration.
      (See Makande and another V Malawi Telecommunications Ltd [IRC 81/2001] Industrial Relations Court , upheld by the High Court [Civil Appeal 70/2003] and confirmed by the Supreme Court on 7 May 2007 in Malawi Telecommunication Ltd v Makande and another, [Civil Appeal 2/2006], reported in Malawi Labour Law Report, 2008, pp. 35-45.

    Notification to the public administration: Yes

    Remarks:
    • No statutory requirements.
      However, the Courts have ruled that in cases of redundancies and other mass dismissals for operational needs, the employer must comply with art. 13 and 14 of the in ILO Convention 158 on consultation with the worker's representatives and notification to the administration.
      (See Makande and another V Malawi Telecommunications Ltd [IRC 81/2001] Industrial Relations Court , upheld by the High Court [Civil Appeal 70/2003] and confirmed by the Supreme Court on 7 May 2007 in Malawi Telecommunication Ltd v Makande and another, [Civil Appeal 2/2006], reported in Malawi Labour Law Report, 2008, pp. 35-45.

    Notification to workers' representatives: Yes

    Remarks:
    • No statutory requirements.
      However, the Courts have ruled that in cases of redundancies and other mass dismissals for operational needs, the employer must comply with art. 13 and 14 of the in ILO Convention 158 on consultation with the worker's representatives and notification to the administration.
      (See Makande and another V Malawi Telecommunications Ltd [IRC 81/2001] Industrial Relations Court , upheld by the High Court [Civil Appeal 70/2003] and confirmed by the Supreme Court on 7 May 2007 in Malawi Telecommunication Ltd v Makande and another, [Civil Appeal 2/2006], reported in Malawi Labour Law Report, 2008, pp. 35-45.

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): No

    Priority rules for re-employment: No

    Severance pay and redundancy payment - 2013    

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    Severance pay:
    Remarks:
    • New in 2011
      The Employment Amendment Act of 2010 (effective as of May 2011) limits severance pay entitlements to economic dismissals ("termination of a contract as result of redundancy or retrenchment, or due to economic difficulties, or technical, structural or operational requirements of the employer) or unfair dismissals. Employees who are fairly dismissed (ie for a reason connected with their capacity) are no longer entitled to severance pay.

    • tenure ≥ 6 months: 0 week(s)
    • tenure ≥ 9 months: 0 week(s)
    • tenure ≥ 1 year: 0 week(s)
    • tenure ≥ 2 years: 0 week(s)
    • tenure ≥ 4 years: 0 week(s)
    • tenure ≥ 5 years: 0 week(s)
    • tenure ≥ 10 years: 0 week(s)
    • tenure ≥ 20 years: 0 week(s)
    Redundancy payment:
    Remarks:
    • New in 2011
      The Employment Amendment Act of 2010 (effective as of May 2011) limited severance pay entitlements to economic dismissals ("termination of a contract as result of redundancy or retrenchment, or due to economic difficulties, or technical, structural or operational requirements of the employer) or unfair dismissals.

      The amounts of redundancy pay have also been changed by the Employment Amendment Act 2010.
      The First Schedule of the EA, as amended reads as follows:
      * At least 1 year and up 5 years of service: 2 weeks' wages for each completed year of service up to and including the fifth year.
      * More than 5 years and up to 10 years of service: 2 weeks' wages for each completed year of service for the first five years plus 3 weeks' wages for each completed year of service from the sixth year and up to and including the tenth year.
      * More than 10 years: 2 weeks' wages for each completed year of service for the first five years plus 3 weeks' wages for each completed year of service from the sixth year and up to and including the tenth year plus four weeks' wages for each completed year of service from the eleventh year onwards.

      [Prior to July 2011, severance/redundancy pay was set as follows:
      * From 1 and up to 10 years of service: 2 week's wages for each completed year of service
      * Beyond 10 years of service: 4 weeks' wages for each completed year of service.]
    • tenure ≥ 6 months: 0 month(s)
    • tenure ≥ 9 months: 0 month(s)
    • tenure ≥ 1 year: 2 week(s)
    • tenure ≥ 2 years: 4 week(s)
    • tenure ≥ 4 years: 8 week(s)
    • tenure ≥ 5 years: 10 week(s)
    • tenure ≥ 10 years: 25 week(s)
    • tenure ≥ 20 years: 65 week(s)

    Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2013    

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    Compensation for unfair dismissal - free determination by court: No

    Remarks:
    • Art. 63(4) and (5) EA. The amount of compensation shall be such amount as the court considers just and equitable in the circumstances. However, statutory minimum thresholds are foreseen in art. 63 (5) of the EA.

    Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
    Compensation for unfair dismissal shall not be less than:
    - 1 week's pay for each year of service for a worker who has served for not more than 5 years;
    - 2 weeks' pay for each year of service for a worker who has served for more than 5 and less than 10 years;
    - 3 weeks' pay for each year of service for a worker who has served for more than 10 years and not more than 15 years;
    - 1 month's pay for each year of service for a worker who has served for more than 15 years.

    Remarks:
    • Art. 65 (5) EA.
      The Act foresees an additional amount to be awarded by the Court when dismissal was based on prohibited grounds.

      Note that according to art. 65 (6) EA, if an order of reinstatement or re-engagement made by the Court is not complied with by the employer, the employee is entitled to an award equivalent to 12 weeks' wages, in addition to a compensatory award.

    Reinstatement available: Yes

    Remarks:
    • Art. 63 (1) a) EA.
      When deciding which remedy to award, the Court shall first consider the possibility of ordering reinstatement (art. 63 (2) EA).

    Preliminary mandatory conciliation: Yes

    Remarks:
    • Prior to the settlement of the dispute before the Court, the matter is lodged to a Regional/District Labour Officer before a Labour Officer for conciliation: art. 62, 64 EA and art. 44(1) LRA. This preliminary phase of extra-judicial conciliation is compulsory for the parties.

      In addition, preliminary conciliation before the Registrar of the Industrial Relations Court: Rule 5 (3),(4) (5) of the Industrial Relations Court (Procedure) Rules, 1999.
      Conciliation is carried out by the Registrar, if requested by the parties or if directed by the Court to do so.

    Competent court(s) / tribunal(s): labour court

    Remarks:
    • Art. 62(1), 64 and 65 EA.
      See also the part on dispute settlement (art. 42-45) of the Labour Relations Act, 1996

    Existing arbitration: No

    % of dismissals out of the total number of disputes: 65 %

    Remarks:
    • Figure calculated on the basis of the statistics provided in the Annual Report of the Industrial Relations Court of Malawi for the period between July 2007 and June 2008.
      The figures represents the percentage of disputes pertaining to unfair dismissals out of the total number of disputes disputes registered by the "Principal registry" and the "Lilongwe Registry".

    Source of additional information - 2013    

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    Links

    Use of International Law by Domestic Courts - Compendium »
    Go to "Dismissal" (second item) / Malawi

    ILO Committee of Experts on the Application of Conventions and Recommendations - Comments on the ILO Termination of Employment Convention, 1982, No. 158 (from 1990) »