Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1. The Committee takes note of the Government’s report received in September 2007 which refers, in reply to the 2000 direct request, to some of the provisions of the Employment Act (No. 6 of 2000). It also takes note of the judicial decision of the Industrial Relations Court in Blantyre of June 2007, enclosed to the report. The Committee would appreciate to continue receiving information on the manner in which the provisions of the Convention are applied in practice (Parts IV and V of the report form). It also asks the Government to report in detail on the following points.

2. Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee notes that according to section 2, the Employment Act does not apply to members of the armed forces, the prisons service or the police except those employed in a civilian capacity. It also notes that during a probationary period, which shall not in any event exceed 12 months, a contract of employment may be terminated at any time by either party without notice (section 26 of the Employment Act). Contracts for a specified period of time or for a specific task shall terminate on the date specified for its termination or on the completion of the task, respectively, and no notice shall be required for its termination (section 28 of the Employment Act). The Committee asks the Government to provide the information required in the report form under Article 2, particularly on adequate safeguards 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 (Article 2, paragraph 3), and on special arrangements concluded to provide, as a whole, protection that is at least equivalent to the protection afforded under the Convention (Article 2, paragraphs 4–6 – items (d) and (e) of the report form).

3. Article 4. Valid reason for termination. Section 57 of the Employment Act requires “a valid reason for …[a] termination connected with the capacity or conduct of the employee or based on the operations requirements of the undertaking”. Section 62 of the Act promotes that an employee may complain to a District Labour Officer and, if it is not settled, to refer the dispute to the Industrial Relations Court. The Committee asks the Government to indicate how “valid reason” is interpreted by the District Labour Officers at the Industrial Relations Court, providing court decisions on the matter.

4. Articles 5(e) and 6. Invalid reasons for termination. The Committee takes note of sections 46(1), 47(2) and 48 of the Employment Act concerning sick and maternity leave. The Committee asks the Government to indicate how it ensures that workers, who do not fulfil legal requirements to sick or maternity leave on full or half pay, are guaranteed that their temporary absence from work because of illness or injury, or for reasons related to maternity does not constitute a valid reason for termination. Please also provide information on the manner in which section 48 is applied in practice in accordance with Article 5(e).

5. Article 7. Procedure prior to termination. The Government indicates that section 57(2) of the Employment Act provides that the employment of an employee shall not be terminated before the employee is provided an opportunity to defend himself or herself. The Committee requests the Government to provide detailed information on the manner in which effect is given in practice to section 57(2) of the Employment Act, providing court decisions on the matter.

6. Article 12, paragraph 3. Loss of the entitlement of severance pay in case of termination for serious misconduct. The Committee asks the Government to indicate how it is ensured in practice when applying section 35(6), of the Employment Act that the loss of entitlement of severance pay or other similar benefits is provided only in case of serious misconduct of the workers, providing information on how serious misconduct is defined in practice for this purpose.   

7. Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Committee requests the Government to indicate how effect is given in law and in practice to Article 13 concerning consultation of workers’ representatives and Article 14 concerning notification of the terminations to the competent authority, in case of termination of employment for economic, technological, structural or similar reasons.

[The Government is asked to reply in detail to the present comments in 2009.]