Sources of regulation
Security of employment in the form of protection from arbitrary dismissal at the initiative of the employer is given legislative force in Swaziland under:
- the Employment Act, 1980 (EA), as amended, and ;
- the Industrial Relations Act, 2000 (IRA).
In addition, provisions under collective agreements and case law developed by the Industrial Court of Swaziland and under the common law supplement the legislation on termination of employment.
Scope of legislation
The EA applies to every contract of employment made within Swaziland and to be performed wholly within Swaziland (sec. 21(1)). Agricultural workers, domestic workers and employees who are members of the employer’s immediate family are exempted from the provisions of the EA (sec. 2). Subject to particular governmental regulations, the EA covers the public servants, other than serving in the Royal Swaziland Police Force, Defence Force and Prison Service.
Provisions requiring dismissals to be fair specifically exclude (sec. 35(1), EA):
- probationers;
- an employee whose contract of employment is concluded for less than 21 working hours per week;
- an employee who is a member of the immediate family of the employer; and
- an employee engaged for a fixed-term and whose term of engagement has expired.
Persons employed in manufacturing and processing are regulated by the Regulation of Wages Order 1995.
Contracts of employment
Under sec. 2 of the EA, the contract of employment is defined as a contract of service, apprenticeship or traineeship whether it is express or implied, oral or in writing. Apart from the distinctions noted above, for the purposes of termination of employment the relevant legislation does not distinguish between types of employment contracts.
Termination of employment
The contract of employment can terminate, not at the initiative of the employer, in certain circumstances, including by:
- employee retirement;
- the expiry of a fixed-term contract; and
- the completion of the task for which the contract was concluded.
Dismissal
Under Swazi law, all dismissals are required to be substantiated by a good reason in law, and a general prohibition against unfair dismissals is contained in sec. 35 of the EA. The EA also outlines certain reasons which would be deemed automatically unfair or fair. However, in addition to automatically unfair dismissals, the Industrial Court will assess dismissals on a case-by-case basis to ascertain whether there is a valid reason for termination.
Reasons for dismissal deemed automatically unfair under sec. 35(3) of the EA include:
- membership or participation in an employees’ organization’s activities outside working hours or, with the permission of the employer, within working hours;
- when an employee is seeking office as, or acting in the capacity of an employees’ representative;
- the filing in good faith of a complaint against his/her employer;
- race, colour, religion, marital status, sex, national origin, tribal or clan extraction, political affiliation or social status;
- when the employee is certified by a medical practitioner as being incapable of carrying out his or her normal duties because of a medical condition brought about by his or her employment duties, except when the employer proves that he or she has no suitable alternative employment to offer that employee; and
- absence from duty due to sickness certified by a medical practitioner for a period not exceeding six months, or due to an accident or injury arising out of his or her employment, except when the employer proves that in all the circumstances of the case, it was necessary to permanently replace the employee.
Sec. 37 of the EA also makes provision for the situation known under common law as constructive dismissal, that is, when the conduct of the employer is such as to entitle the employee to lawfully terminate the employment relationship. In such circumstances, the employee will be deemed to have been unfairly dismissed and is therefore entitled to the usual compensation granted for other cases of unfair dismissal.
The law also makes provision for maternity leave and specifies that during statutory maternity leave an employer may not dismiss a worker for reasons connected to such leave. In addition, the employer may not dismiss the worker on the grounds that she is pregnant (secs. 103-105, EA).
Under sec. 36 of the EA, certain reasons for dismissal are deemed automatically fair. These are:
- when the employee’s conduct or work performance, after written warning, is such that the employer cannot reasonably be expected to continue employing him or her;
- when the employee is guilty of dishonesty, violence, threats or ill-treatment towards his or her employer or towards any member of the employer’s family or other employee;
- when the employee wilfully causes damage to the building, machinery, tools, raw materials or other objects connected with the employment undertaking;
- when the employee either by imprudence or carelessness endangers the safety of the undertaking or any person employed or resident there;
- if the employee wilfully reveals manufacturing secrets or matters of a confidential nature to another person which is, or is likely to be, detrimental to his or her employer;
- because the employee has been absent from work for more than a total of three working days in any period of 30 days without either the permission of the employer or a certificate signed by a medical practitioner certifying that he or she was unfit for work due to illness;
- because the employee refuses to adopt safety measures issued by the employer;
- when the employee is committed to prison;
- because the employee is unable to continue in employment without contravening the EA or any other statute;
- because of redundancy as defined by the law;
- when the employee reaches the age for retirement; or
- for any other reason which entails for the employer or the undertaking similar detrimental consequences to those set out under sec. 36 of the EA.
It should be noted that the last criterion is limited to a “reasonable cause” as determined by the Industrial Court.
Provisions regulating collective dismissals are found under sec. 40 of the EA. These provisions, however, exclude casual employees, seasonal workers and those persons employed under a contract for a fixed term of six weeks or less and which does not provide for re-engagement at the end of that period.
Notice and prior procedural safeguards
Although prior procedural safeguards have not been outlined under legislation, such safeguards have been established as part of the good industrial practices standard expected by the Industrial Court and labour law custom in Swaziland. Consequently, a worker who is facing dismissal on the grounds of misconduct is entitled to a fair hearing in accordance with the principles of natural justice. Before an employee is dismissed for misconduct, he or she must also have been given a written warning relating to the same offence on a previous occasion.
Notice or payment in lieu of notice must be given in case of termination of then employment relationship. The minimum period of notice (sec. 33, EA as amended in 1985) is as follows:
- for periods of continuous employment of less than three months, one week;
- for continuous employment of a duration between three months and one year , two days for each completed month of continuous employment up to and including the twelfth month; and
- for continuous employment of more than 12 months, the period of notice is one month and four days’ additional notice for each completed year of continuous employment after the first year of employment.
These minimum legislative periods of notice do not prejudice the right of the employer to dismiss an employee summarily “for just cause”. However, summary dismissal cannot be carried out unless the reasons for the dismissal are such as to warrant the immediate cessation of the employer/employee relationship and where the employer cannot be expected to take any other course (sec. 33(8), EA).
As regards collective dismissals for economic reasons, Section 40(2) of the EA stipulates the procedure to be followed by any employer contemplating to dismiss five workers or more. At least one month’s notice of redundancy must be given in writing by the employer to the worker, to the Labour Commissioner and to the organisation, if any, which is a party to a collective agreement. The notice must contain certain information about the proposed redundancies, such as the number of employees likely to become redundant, the occupations and remuneration of the employees affected, the reasons for the redundancies and the date when the redundancies are likely to take effect. There is not, however, a requirement of prior authorization. Beyond these provisions, any additional safeguards against collective dismissals for economic reasons are left to the collective bargaining process.
Severance pay
Except in situations of dismissal for fair reasons stipulated under Section 36 of the EA, when an employee’s contract of service is terminated, he or she is entitled to a severance payment (sec. 34, EA). This severance allowance amounts to ten working days’ wages for each completed year, in excess of one year, that the employee has been continuously employed by that employer.
Avenues for redress
An employee wishing to contest his or her dismissal may, in the first instance, initiate a claim to the Labour Commissioner, who will attempt to settle the matter. If the Labour Commissioner is unable to effect settlement within 21 days, the complaint is treated as an unresolved dispute and the Labour Commissioner must submit a full report of the matter to the Industrial Court for adjudication (sec. 41(3), EA).
The burden of proof in termination of employment cases lies with the employer to establish that termination was carried out with good reason (sec. 42, EA).
In addition to awards by the Industrial Court in the form of damages, employers who fail to respect the mandatory requirements of the EA concerning the dismissals may also be liable for a fine or imprisonment not exceeding one year, or both (sec. 44, EA).
Under sec. 16 of the IRA, provision is made for the Industrial Court to order reinstatement and/or compensation. Reinstatement is to be the primary remedy. Compensation awards cannot exceed 24 months’ remuneration, having regard to the employee’s loss, age, future employment prospects and the circumstances of the dismissal. Compensation under the IRA is in addition to any severance pay or compensation due under any individual or collective agreement.
Further information
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