Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

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

Autre commentaire sur C158

Demande directe

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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.