Malawi at a Glance

A fixed-term contract may be for a set amount of time or the completion of a specific work. Unless the contract has been implicitly or explicitly renewed or extended, contracts for a certain amount of time expire automatically on the date set for termination. There is no requirement for a termination notice. A contract to complete a specific work expires upon the task’s completion. No termination notice is necessary from either party.

The law does not set requirements on the maximum duration and allowable renewals of fixed-term contracts. It is up to the agreement between both parties.

When a contract for a set time frame or a specific task is used to fill a position tied to routine and permanent activity, it is judged to be an employment contract for an indefinite duration.

Employers are permitted to conduct pre-hire checks as long as they are not discriminatory in nature. There are no restrictions on such checks, provided they are carried out fairly and do not discriminate against any particular group of individuals.

In Malawi, the maximum weekly working hours are 48 hours. This excludes overtime. The maximum daily working hours depend on the employee’s work schedule:

• No more than five days per week: 12 hours
• Six days per week: Eight hours

Employers are not permitted to require employees to work for more than six consecutive days without providing a 24-hour rest period. This rest period must be taken on a customary day or a day agreed upon mutually by the employer and the employee.

The minimum overtime pay rates in Malawi are as follows:

• Ordinary overtime for time worked on a working day in excess of the hours normally worked: 150% of the hourly salary
• Day off overtime for time worked on a day on which an employee would otherwise be off duty: 200% of the hourly salary
• Holiday overtime for time worked on a public holiday: 200% of the hourly salary

Employers in Malawi must maintain an accurate written record of the following information:

• Salaries and remuneration paid to each employee for the past three years
• The gross amount payable to each employee, any deductions made and the reasons for the deductions.

Fixed-term contracts and task-based contracts terminate automatically upon the completion of the specific task or the expiry of the term, respectively. Meanwhile, an indefinite-term contract can be terminated by either party, provided a written notice is served.

Under the law, an employer may only dismiss an employee on valid grounds, such as conduct, capacity or retrenchment. In the case of retrenchment, employers must follow a prescribed procedure that includes the following steps:

• Consult with employee representatives
• Notify the Secretary responsible for labor in writing
• Prepare a report within 14 days of retrenchment.

Retrenched employees should be given priority for rehiring when suitable job opportunities arise in the company.

Employers must pay any salary or other payments due to the employee within seven days of termination. Employees can request a certificate of termination from the employer, which should include the reason for termination but should not contain any evaluation of the employee’s work unless requested by the employee.

Lastly, it is considered an offense for an employer to terminate an employee’s employment due to pregnancy. The burden of proof falls on the employer to show that the termination was not pregnancy-related.

In Malawi, the minimum notice period for terminating fixed-term contracts is 14 calendar days. However, for indefinite contracts, the minimum notice period varies depending on the employee’s remuneration cycle and length of tenure.

Under Malawian employment law, employers have the option to make a payment to an employee instead of providing notice of termination. This payment is called “payment in lieu of notice” and it includes the employee’s wages and any additional benefits they would have received if they had worked through the notice period. In other words, the employee is compensated for the time they would have worked if notice had been given.

When an employment contract is terminated due to redundancy, retrenchment, economic difficulties, technical needs, structural changes, operational requirements or unfair dismissal of the employee, the employee is entitled to receive severance pay. The amount of severance pay is determined based on the employee’s length of service with the employer:

• Less than one year: No severance pay
• One to five years: Two weeks’ salaries for each completed year of service
• Six to 10 years: Three weeks’ salaries for each completed year of service
• More than 11 years: Four weeks’ salaries for each completed year of service

Under the Employment Act, if an employee is exempt from receiving a pension, their employer must provide them with a gratuity upon retirement, termination of work, or death. This gratuity must be equal to 5% of the employee’s monthly income for each completed month of service.

Malawian law allows non-competition clauses to be included in the employment contract but such restrictions must be reasonable in nature and scope to be legally enforced.

At present, there is no specific law in Malawi that deals with data protection. However, the Electronic Transactions and Cyber Security Act 33 of 2016 contains provisions that are relevant to data protection and can be applied in this context.