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.

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 11^th 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 11^th May 2012. Some of us received phone calls while others received emails on the same day (11^th 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 (11^th 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 1^st 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 1^st 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.