CMNT_TITLE

Repetition

The Committee refers to its previous comments in which it noted that section 28(3) of Employment Act No. 6 of 2000 regards specific term or task contracts as indefinite contracts if they are used to fill a permanent position. The Committee trusts that the Government will be mindful of each of the provisions of the Convention, in order to ensure their full and effective application, when reviewing the Employment Act. It invites the Government to provide a copy of the amended Act to the Office as soon as it is adopted. Please also include copies of decisions rendered by the Industrial Relations Court interpreting section 28(3) of the Employment Act more specifically with regard to the protection against abusive recourse to fixed-term contracts (Article 2(3) of the Convention).

Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee previously noted that, under section 2(2), members of the armed forces, prison service and police are excluded from the coverage of the Employment Act, except when they are employed in a civil capacity. The Government indicated its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6) of the Convention. The Government reported in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers were stipulated in the Standing Orders. The Committee once again invites the Government to provide copies of the Standing Orders to examine how the protection provided is at least equivalent to that afforded by the Convention to the above categories of civil servants.

Article 12. Severance allowance and other income protection. The Government indicates that, under the Pension Act No. 6 of 2011, severance pay for the period prior to 1 June 2011 is payable regardless of the grounds of termination. The Committee notes in this regard that section 91(1) of the Pension Act provides that “every employer shall recognize as part of an employee’s pension dues, each employee’s severance due entitlement accrued from the date of employment of that employee to the date of commencement of this Act”. Moreover, section 91(5) of the Pension Act provides that the “severance due entitlement shall, upon termination of an employment contract between the employer and employee, become immediately transferable to a pension fund of the employee’s choice”. The Committee recalls that under Article 12(1) of the Convention, a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to a severance allowance or other separation benefits (paragraph 1(a)); or benefits from unemployment insurance or assistance or other forms of social security (paragraph 1(b)); or a combination of such allowance and benefits (paragraph 1(c)). In its 1995 General Survey, Protection against unjustified dismissal, paragraph 266, the Committee noted that Article 12 is intended to take account of very different schemes and situations to afford some income protection for workers whose employment is terminated. Moreover, the Committee notes the judgment of the Industrial Relations Court in Case No. 396 of 2011 (Kalolokesya & Another v. Beit Cure International Hospital), before the entry into force of the Pension Act, in which the Court had to determine whether the respondent acted properly by amending the pension rules to enable it to pay severance pay from its contribution towards the pension fund. The Committee invites the Government to provide information on the effective application of the Pension Act, both in law and in practice, in relation to Article 12.

Article 12(3). Loss of entitlement to severance payment in case of termination for serious misconduct. The Government previously indicated that the statutory grounds for losing one’s entitlement to severance allowance in section 35(6), particularly that of being “fairly dismissed for a reason related to his conduct”, should be read in conjunction with sections 57–61 of the Employment Act, which provide substantive and procedural elaborations of a “fair” dismissal. The Government reported in June 2011 that section 59(1) of the Act lists five grounds for summary dismissal and that each of these five grounds justifies the loss of severance allowance. The Committee requests the Government to provide copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act, more specifically with regard to the loss of severance allowance being limited to cases of serious misconduct.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Government previously indicated that all employers comply with administrative statements and policies on retrenchments; and retrenchment packages are examined before they are implemented. It had also indicated that consultations with the social partners were at an advanced stage to incorporate procedures of collective dismissals in the amended Employment Act. The Committee notes the judgment of the High Court in Case No. MZ40 of 2010 (Kaira v. Malawi Telecommunications Limited) in which the Court referred to Article 13 of the Convention and indicated that, although not clearly provided in section 57 of the Employment Act, Convention No. 158, which Malawi ratified, obliges the employer to fully engage the employee in consultations as regards the impending restructuring. The Committee stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals.

Part V of the report form. Application of the Convention in practice. The Committee invites the Government to provide information on the manner in which the Convention is applied in practice, including available statistics on the activities of the appeal bodies and on the number of terminations carried out for economic or similar reasons.