Malawi MPs petitioned to amend Employment Act

Some concerned citizens who were former employees of First Merchant Bank have petitioned Parliament to seek an amendment of the Employment Act after noticing deficiency in section 57(2) following a Supreme Court ruling in 2013.

Malawi Parliament

Malawi Parliament

The citizens who are Eisenhower Mkaka and Kawerama Sonjo has written Parliament expressing their fear is that the current judgment by the Supreme Court of Malawi has put all workers in Malawi at a severe risk of losing employment by way of retrenchment on ground of operational requirement without being consulted bearing in mind that employer will start using this ruling to terminate employment at will knowing that there is no need for consultations.

“Having gone through industrial related action with 17 others in the courts of Malawi (Industrial Relations Court, the High Court of Malawi and the Supreme Court of Appeal) after being unfairly dismissed by First Merchant Bank Ltd on 11th May 2012 have observed a deficiency in section 57 (2) after the Supreme Court observed in its ruling that it is an Act of Parliament that provides otherwise than the ratified ILO Convention 158 in respect of terminations of employment based on operational requirements of an undertaking in that section 57(2) has clearly left out the need for an employer to accord its employees the right to be heard in such instance,” reads the petition in part.

It further reads that the court further argued that ILO Convention 158 lost its status as part of the Malawi Law when Parliament by Act No. 6 of 2000 decided to take some of its aspect on board the new employment law while leaving out parts including Articles 13 and 14 of the ILO Convention 158.

“My 18 colleagues and I reported for work on 11th May 2012. Some of us received phone calls while others received emails on the same day (11th May 2012) to meet various bank officers on the same day in board rooms in Blantyre and Lilongwe. On meeting the bank officers, we were all handed letters notifying us that we had been retrenched with immediate effect (11th May 2012) citing, a purportedly positive, restructuring that came as a result of changing business model that resulted in expanding the bank’s business by including individuals and small and medium enterprises (SMEs), contrary to the preceding strategy that focused on corporate clients only.

“This change in strategy actually necessitated increase in staff complement and yet the bank used this positive development to retrench us without consulting contrary to the provisions of ILO Convention 158 Articles 13 and 14 and our own terms and conditions of service. We, therefore, took legal action against the bank for unfair dismissal,” writes Mkaka.

He further writes before taking legal action, one of our assumptions was that the Employment Act section 57 (2) provided for consultation if an employer decides to terminate employee(s)’ employment based on operation requirement just as is the case with termination based on capacity and conduct of an employee.

This assumption was founded   on the Supreme Court ruling in the case of MTL vs. Makande (2008).

“A Panel of 3 Supreme Court judges, however, found in our case that Section 57 (2) does not provide for the same and they thus overruled/invalidated the ruling in MTL vs. Makande case (2008),” reads the petition in part.

On the other hand Kawerama Sonjo wrote: “Being a unionist and having read the Supreme Court of Appeal judgment in the case of First Merchant Bank vs. Eisenhower Mkaka and 13 others (2013), do understand the adverse, recurrent and pervasive effects the ruling will have on all employees in Malawi in that employees will be retrenched anyhow and without being consulted, citing operation requirement necessitating the same since the law, according to this judgment, does not expressly include this.”

“Thus, we the concerned parties Kawerama Sonjo and Eisenhower Mkaka, being citizens of Malawi, do hereby petition the Malawi Parliament to consider amendment of section 57 (2) of the Employment Act No. 6 of 2000 to include Article 13 (1a & b) Article 14 of ILO Convention 158 (1982) ratified by the Malawi government on 1st October 1986,” reads the petition.

This call for amendment aims to include the operational requirements in case of retrenchments as a result of economic, technological, structural or similar reason which is missing in the Employment Act but provided for in the ILO Convention 158 (1982) providing a platform for thorough consultations before employers effect retrenchments.

This petition comes about following Supreme Court ruling invalidating the legality of Article 14 of the ILO Convention 158 despite being ratified by Malawi government on 1st October 1986 as part of our laws as stipulated on section 211 (1) of the Constitution as it reads in part.

“Any international agreement entered into after the commencement of this Constitution shall form part of the law of the Republic unless otherwise provided by an act of parliament”

In its ruling the Supreme Court of Malawi argues that it is an Act of parliament that provides otherwise than the ratified Convention provides in respect of terminations of employment based on operational requirements of the undertaking in that by section 57(2) it has clearly left out the need for an employer to accord its employees the right to be heard in such instance.

The court further argues that ILO Convention 158 lost its status as part of the Malawi Law when Parliament by Act No. 6 of 2000 decided to take some of its aspects on board the new employment law while leaving out parts including Articles 13 and 14 of the ILO Convention 158.

This judgment by the Supreme Court in the case of First Merchant Bank v Eisenhower Mkaka and the Others (2013) overrules its earlier ruling in a case between MTL v Makande (2008) that ILO Convention 158 is part of Malawi’s Employment Law which meant that the authority held that the requirements of Article 14 of ILO Convention 158 are directly applicable in Malawi by virtue of section 211(2) of the Constitution.

This earlier judgment meant that consultations are a must whenever an employee is being declared redundant or otherwise being retrenched on the ground of operational requirement, among other bases, which unfortunately has been overruled by the current judgment.

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11 thoughts on “Malawi MPs petitioned to amend Employment Act”

  1. Johnstone says:

    There is nothing wrong with the current law. there is no need for consultations when the reason for termination is retrenchment. the law should not be changed.

  2. Why is the supreme court coming with two different rulings? Why are we told that the constitution is the supreme law of the land? Why are we told that the acts of parliament simply add weight to the constitution? Why should Malawi waste resources ratifying these conventions and protocols? No wonder Malawi is the noor the poorest country in the world. We are poor even in thinking and because we are poor our judges are easily corrupted. They don’t have independent minds and that is why they go on strike anyhow.

  3. Tili Chenene says:

    Labour issues are somehow difficult to handle. If there is inconsistency between ILO and Malawian labour laws, I think Malawi’s laws are invalid unless she ceases to a member of commonwealth and UN

  4. m'Malawi says:

    Eisenhower Mkaka and friends deserve a lot of appreciation for bringing forward this crucial issue for the benefit of fellow employees who may find themselves in this scenario tomorrow. However, I think companies need to be free to make changes to their staff establishments innirdee to be versatile and flexible in the face of technological and market changes. This is a crucial point where different countries are able to survive criemaes and grow faster like US and Britain at the moment and others stagnate and are bogged down partly because of labour laws that are too strong to let companies make necessary changes eg Italy and Japan. We need to strike a certain balance.

  5. Elhapo says:

    What is this “consultation” by the way? Is the employer being expected to seek the agreement of the employee before retrenchment? And how many of employees would gladly agree to be retrenched? Some of these provisions that we blindly adopt seem inappropriate in a pot country like ours!

  6. Zex says:

    Olemekezeka ma MP athu chonde chitaniponi kathu mwansanga chifukwa anthu ogwira ntchito azichotsedwa popanda chifukwa. Mabwana kwathu kuno ena ndiwoyipa mtima azinamizira retrenchment kumachotsa anthu osalakwa

  7. NYOWANI says:

    terminating one’s employment based on retrenchment is a valid reason. this reason is enough. these employees did not commit any offence as per terms and conditions of employment that they were suppose to be accorded an opportunity to heard. FMB did the right thing as per employment act 2000. however, it is our Act that has gaps. surely parliament need to review the Act critically, otherwise, a lot of employees will suffer because of the way provisions in the Act were articulated.

  8. Achimidzimidzi says:

    Civil servants, watch out!
    Public service reform is coming using this space in our legal framework.

  9. clement says:

    Am not after MPs petition but the parliament building.The late prof Bingu must be commended had it. Kamuzu could have name this building Kamuzu Parliament.Now stupid pple talk likes of Kabwirakadyaa Kapasula nonsense about THE BINGU NATIONAL STADIUM.One day i will mute you wa mano ngati ntchenzi iwe.

  10. Your onservation in the deficiency of Employment Act is a good thing to all workers and we need to lobby our MPs to do us a favour.

  11. BBC says:

    Apa zachita kuwonetseratu kuti ku Malawi chilungamo chimapotozedwa mwa dala kuti zikomele mbali imodzi. Whether it is retrenchment or notice prior to suspension, an empoyee is supposed to be consulted and failure to do so by an employer is a bleach of labour act. Where on earth can an employee be retrenched without being consulted and given reasonable notice?

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