EMPLOYMENT LAW AN OVERVIEW in Malawi.pptx

Employment Law

1. EMPLOYMENT LAW: AN OVERVIEW OF EMPLOYMENT LAW JAMES CHIKU KAPHALE LABOUR LAW LECTURER CATHOLIC UNIVERSITY OF MALAWI

2. EMPLOYMENT LAW DEFINED Employment law is the body of legislation that is designed to regulate the relationship between employer and employee. This is the collection of laws that are enacted to manage the employment relationship between employers and employees. Formation of the Employment contract An employment contract can be formed in the following ways: a) oral contracts b) Written contracts c) It can be implied from the conduct of the parties.

3. Definition of an Employee Section 3 of Employment Act and Section 2 (1) of Labour Relations Act defines an Employee as a person who offers his services under a contract of employment or any person who performs work or services for another person for remuneration or reward on such terms and conditions that he or she is in a relation to that person in a position of economic dependence and under an obligation to preform duties for that person more closely resembling the relationship of employee than of an Independent Contractor This presupposes that there is a contract of employment between a Master and a Servant A worker who has a contract of employment is called an Employee

4. Take note that the definition makes no distinction between a permanent employee and one on probation or a casual worker or a seasonal worker. In Gama and Others vs Dimon (Mw) Ltd Matter No. IRC 2 of 2001 The court took judicial notice of the fact that the tobacco industry uses seasonal labour . It observed that seasonal employment belongs to the category of contracts for a specific task. To that, we add a rider, that Section 43 of the Employment Act provides that where an employee is engaged in an undertaking in which it is customary to employ some employees only at certain seasons of the year and an employee is employed for successive seasons, the employee shall be deemed to have been continuously employed for the aggregate of all the time he has actually performed work for the same employer for continuous seasons.

5. What are the Rights of Employees? Safe workplace environment Wage equality No discrimination in the workplace No sexual harassment Joining a Union Entitlement to leave Freedom from forced labour Security of tenure Right not to be arbitrarily dismissed

6. Employment Contract An employment contract or contract of employment is a kind of contract used in labour law to attribute rights and responsibilities between the parties to a bargain. A Contract of employment is an agreement between an employer and employee and is the basis of the employment relationship. The Contract is between an employer and an employee It has arisen out of the old Master-Servant law used before the 20 th Century

7. Definition of Employer Section 3 of Employment Act and Section 2 (1) of Labour Relations Act defines an Employer as any person, body, corporate, undertaking, public authority or body of persons who or which employs an employee and includes heirs, successors and assignees of the employer or where appropriate a former employer. This definition is more encompassing in order to protect employees in situations such as transfer of an undertaking (Section 32 of Employment Act). Situations may arise where the identity of an employer is in dispute; for example, where a purported employer is an empty legal shell stripped of its assets while the real power of decision-making and the ability to pay wages rests with another company or person. Under such circumstances it has been argued, the company or other person or persons who have control of the undertaking in which the worker is employed should be regarded as the employer

8. Independent Contractor (self-employed) The worker who has a contract of service contract of employment is called an employee. This is a as distinguished from a contract for services under which a self –employed person works i.e an independent contractor. At Common Law, there are at least 3 tests which are used to determine employee status. These tests were considered by IRC in Simango vs Blantyre Newspapers Ltd where the Court determined that the applicant was an employee rather than a consultant as argued by the respondent. A. Control Test- Since it was in the context of vicarious liability that the Courts first considered who an employee was, it was natural that they saw its touchstone as whether the master controlled or had the right to control not only what the worker did but also the manner in which he did it.

9. The control test was applied by the High Court in Chiwembu and Others vs Dairiboard Malawi Ltd [2008] MLLR 145 . In that case, the plaintiffs were employed as bicycle vendors selling the defendant’s products. They were seeking the Court’s determination on whether under Sections 3 and 43 of the Employment Act they were employees of the Defendant and so entitled to rights under Section 31 of the Constitution. The Court held that the fact that their wage was called a commission did not make them independent contractors. The Court considered that the plaintiffs were in a position of economic dependence and under an obligation to perform duties for the defendants under the defendant’s control

10. CONTROL TEST Who was in control in the relation? The controller is the employer. Chiwembu and Others Vs Dairiboard Malawi Chiwembu and others were bicycle vendors and the company said they were not employees but vendors or independent contractors. The court said that they were employees and not independent contractors.

11. INTEGRATION TEST Was the other person integrated in the employer‘s organization? The person who was integrated is the employee and not the independent contractor. Chiwembu and Others vs Dairiboard Malawi Simango Vs Blantyre Newspapers Limited

12. ECONOMIC REALITY TEST Who was depending on the other person economically? The one who was economically dependent is an employee. Simango vs Blantyre Newspapers Limited

13. Integration Test- In Stevenson, Jordan and Harrison Ltd vs Macdonald and Evans, Denning LJ considered that the decisive question was whether the person under consideration was fully integrated into the employer’s organization. This came to be called the Integration Test Economic Reality Test- The Courts have now recognized that no one test or series of criteria can be decisive. Instead they have adopted something like the American notion of the Economic Reality composite test. For a clearest illustration there are three conditions for a contract of service: The servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in performing some service for his master He agrees that in performance of that service he will be subject to other’s control in a sufficient degree to make that other master. The other provisions of the contract are consistent with it being a contract of service

14. Types of Contract of Employment Under Section 25 (2) of Employment Act, there are 3 types of Contract of Employment: 1. Contract for unspecified period of time 2. Contract for a specified period of time 3. Contract for a specific task Laymen usually understand a contract for unspecified period of time as a contract for life but that position at law is different. In fact contracts for life are the rarest. If the Court is to entertain a claim arising from a contract of employment, the contract itself must be legal. Thus, for example, a court will not enforce a contract of employment involving an illegal immigrant or commission of an offence.

15. Implied Terms of Contract of Employment Implied terms in an employment contract are the terms that are not necessarily set out in writing or were agreed orally, but will nevertheless form part of the agreement between the employer and employee Express terms of the employment contract are those terms which are expressly or specifically in writing in the employment contract There are some Terms of Contract that are Implied by Statute and others are implied by Common Law In other words implied contract terms are items that a court will assume are intended to be included in a contract, even though they are not expressly stated

16. Implied by Statute Implied terms include statutory rights such as right to equal pay and duties. Right to work and be given work Right to equal pay for equal work Hours of Work Holidays Leave days

17. Implied by Common Law Certain Common law terms are implied into contract of employment such as Duty of Care Duty to provide work by the employer Duty to respect other employees Duty to indemnify Duty to pay remuneration

18. Written Contracts An employer must give employees and workers a document stating the main conditions of employment when they start work. This is known as Written Statement of employment particulars Employers have a duty to provide employees with a writte statement of the specified terms of employment A written contract contains the following: Name and personal details Commencement Date of employment and Probatio Type of employment Place of work Hours of work Remuneration Leave entitlement Etc

19. Restrictive Covenants A Restrictive covenant is a clause in an employment contract or services agreement that works to prohibit an individual from (amongst others) competing with his or her ex-employer for a certain period of time after he or she has left the business Employers should ensure such restrictions are reasonable in order for them to be enforceable through courts

20. Duties of Employer Make sure that work areas, machinery and equipment are kept in a safe condition Organize ways of working safely Provide information, instruction, training and supervision of employees so that they can work safely Make sure that employees are aware of potential hazards Pay wages Provide work and to take reasonable care of employees against work place injury Fair treatment which prevents claims of discrimination

21. Duties of Employees to Employer Obedience-To obey all lawful orders and supervisors Dealing honestly with the employer Working with reasonable care and skill Not disclosing information to others Disclosing any possible conflict of interest Caring for the Employers property, equipment and facilities To personally do the work

22. PROBATION PERIOD It must not exceed 12 months. Employment during probation can be terminated with notice. Probation can be extended. Termination and extension of probation must be based on the results from probation assessment interview.

23. HOURS OF WORK They are prescribed by the law. In Malawi, there are 8 work hours per day. For those who work five days per week they work for 40 hours per week. For those who work for six days per week work for 48 hours per week. Lunch break must be

24. LEAVE This is authorized time off from work. There are two types of leave : (a) Mandatory leave (b) Discretionary leave

25. MANDATORY LEAVE This is also called Statutory leave. It is leave provided by statutes or laws. Forms of statutory leave Annual leave Maternity leave Paternity leave Sick leave Trade union leave

26. DISCRETIONARY LEAVE This is leave not provided by the laws or statutes. It is leave provided at the discretion of the employer. This leave can be taken away any time the employer wants to. FORMS OF DISCRETIONARY LEAVE Study and examinations leave Compassionate leave Sporting leave Sabbatical leave Unpaid leave. Etc

27. GRATUITY It is a terminal benefit given to an employee who was not on pension. It is calculated as 5% of the basic pay x Number of months worked. Convert years into months. Use the current basic pay of the employee

28. SEVERANCE PAY It is called severance allowance. This also called a terminal benefit. The following are grounds for giving severance pay : Unfair dismissal Retrenchment Redundancy

29. TYPES OF GRATUITY There are two types of gratuity: Mandatory gratuity Discretionary gratuity Mandatory gratuity is provided by the statutes or labour laws. Discretionary gratuity is given to all employees at the end of their contract at the discretion of the employer. This is not provided by the labour laws. It is just at the discretion of the employer.

30. OVERTIME This is extra hours that employees has worked in a day or week. Overtime is paid out by the employer. TYPES OF OVERTIME Single overtime Ordinary overtime Double overtime Holiday overtime Day off overtime

31. WAGES AND BENEFITS Wages and benefits must be paid on its prescribed time( example 25th of every month) Wages and benefits must be paid according contract stipulations. Failure to pay the employee in line with the constitution is a breach of the constitution.

32. PENSION Pension must be remittted to the pension fund monthly. Minimum pension contributions must be : Employer 10% Employee 5% The pension benefits must be remitted before the fourteenth day of the month. Failure to remit pension funds monthly is illegal and breach of the contract.

33. DISCIPLINE Employees must be disciplined on the basis of poor performance and misconduct. Before giving disciplinary action , a person must be given the RIGHT TO BE HEARD. Disciplinary action include : (a) warning (b) Demotion (c) Suspension (d) Surchage

34. WARNING Warning is called reprimand. The following warnings can be given : (a) oral warning or reprimand (b) Written warning or reprimand Forms of written warning First written warning Second written warning Final written warning

35. DOCUMENT ORAL WARNING There must be proof of oral warning. This is possible through documentation. You can send email informing seniors and then print the email and file it. You can use the verbal warning form which must be signed by both the manager and the employee.

36. WRITTEN WARNING It must be in three copies : (a) one for warned employee (b) one for manager (c) one for the employee personnel file. It must be written clearly and briefly. It must provide reasons for the warning. It must indicate validity. It must be signed off by the manager, warned employee. If the employee refuses to sign off , a witness must sign off.

37. VERBAL AND WRITTEN WARNING Verbal warning can be given without a disciplinary hearing. Written warning must be given after the disciplinary hearing. Both must be filed.

38. DISMISSAL Dismissal is termination of the contract. TYPES OF DISMISSAL Fair dismissal Unfair dismissal Summary dismissal Constructive dismissal

39. GROUNDS FOR DISMISSAL There are only two grounds of dismissal: (a)Poor performance (b)Misconduct Before dismissal ensure : (a)Due process- right to be heard (b)Just cause – valid reason

40. REMEDIES FOR UNFAIR DISMISSAL Order of reinstatement Order of reengagement Order of Compensation

41. TERMINAL BENEFITS The following are terminal benefits Pension Gratuity Severance pay Leave pay Overtime pay Notice pay