In Malawi, the Employment Act outlines the legal requirements for notice periods during employment termination. These requirements vary depending on the type of employment contract and the employee's length of service.

Indefinite Contracts

An indefinite contract is one that does not have a pre-determined end date. The minimum notice period for terminating an indefinite contract is based on the employee's wage payment schedule:

• For monthly wages, one month's notice is required.
• For fortnightly wages, if the employee has less than five years of service, one fortnight's notice is required. If the employee has five or more years of service, one month's notice is required.

Fixed-Term Contracts

The Employment Act does not explicitly mention notice periods for fixed-term contracts. However, it is generally understood that no notice period is required for termination upon the expiry of a fixed-term contract, provided the contract is not implicitly or explicitly renewed or extended.

Additional Considerations

Collective bargaining agreements between employers and employee unions may supersede the minimum notice periods outlined in the Employment Act. It's important to consult the specific agreement to determine any applicable notice provisions.

During the probation period, the notice period may be shorter as outlined in the employment contract, but cannot be less than one week's notice if the employee has completed at least one month of employment.

In Malawi, severance pay is a legal obligation for employers to compensate employees whose employment has been terminated under specific circumstances. This is primarily governed by the Employment Act.

Eligibility for Severance Pay

To be eligible for severance pay, an employee must have been employed continuously for at least one year. Severance pay is generally required when termination is due to redundancy, operational reasons, the employer's inability to pay, or the employer going out of business.

Ineligible Circumstances

An employee is generally not entitled to severance pay if the termination is due to summary dismissal for gross misconduct, the employee voluntarily leaving their employment, or the expiry of a fixed-term contract.

Calculation of Severance Pay

The severance pay calculation is based on the employee's length of continuous service. For one to five years of service, it's two weeks' wages for each completed year of service. For six to 10 years, it's three weeks' wages for each completed year of service. For more than 10 years, it's four weeks' wages for each completed year of service.

Important Notes

The Employment Act prohibits employers from simultaneously paying both severance pay and pension upon termination. However, some collective agreements or contracts may stipulate different conditions. An employer can choose to pay an employee in lieu of notice instead of having them work their notice period. This is often equivalent to the severance pay entitlement.

In Malawi, the termination process for employees must comply with the legal requirements set out in the Employment Act. This ensures that the termination is fair and lawful.

Types of Termination

There are several types of termination:

• Termination by the Employer:

  • Summary Dismissal: This is immediate termination for gross misconduct such as theft or violence.
  • Termination Based on Capacity or Conduct: The employer must provide a written notice with appropriate reasons and an opportunity for the employee to respond.
  • Termination due to Redundancy: This requires appropriate notice.

• Termination by the Employee (Resignation): Employees must give notice as per their contract or the legal minimum based on their pay period.

General Steps for Termination by the Employer

The following are the general steps for termination by the employer:

1. Identify Valid Reasons: The employer must have a valid reason for termination under the Employment Act, such as redundancy, misconduct, or incapacity.
2. Documentation: The employer must thoroughly prepare written documentation supporting the reason for termination and ensure it aligns with the provisions of the Employment Act.
3. Written Notice: The employer must provide the employee with a written notice of termination, which includes the clear reason for termination, the effective date of termination, and the length of the notice period.
4. Opportunity for Employee Defense: The employer must allow the employee a chance to respond to the allegations and consider their defense fairly.
5. Finalization: If the termination decision is upheld, the employer must issue a final termination letter.

Special Considerations

There are special considerations for certain types of termination:

• Misconduct: In cases of gross misconduct, employers have the right to conduct summary dismissals without notice. However, it's essential to have strong evidence and follow fair procedures.
• Redundancy: Termination due to redundancy requires following specific consultation and notice procedures.