MALAWI:   EMPLOYMENT ACT - 2000                                                     MALAWI SDNP
rest, etc.
36. (1) An employee's normal working hours shall be set out in the 
           employment contract: 

            Provided that no employer shall require or permit any employee, 
            other than a guard or any other category of employee exempted 
            from this Part pursuant to section 38, to work for more than forty- 
            eight hours during any week, excluding overtime. 

      (2) Subject to subsection (3), no employer shall require or permit 
            a guard to work for more than forty-eight hours in a week, excluding 

       (3) An employer may require a guard to work for more than forty-eight 
            hours where circumstances so demand: 

            Provided that any hours worked in excess of forty-eight hours 
            shall be treated as overtime and paid at the rate of fifty per cent of 
            the guard's basic pay. 

       (4) No employer shall require or permit an employee to work for 
             more than six consecutive days without a period of rest, comprising 
             at least twenty-four consecutive hours, which shall be taken on a 
             customary day of rest or a day agreed upon between the parties: 
             Provided that the weekly rest period shall, whenever possible, be 
             granted simultaneously to all employees concerned in each under- 

       (5) Subsection (4) shall not apply to undertakings in which only 
             members of the employer's family who do not earn wages work nor 
             to persons in commercial or retail undertakings holding high 
             management positions. 

daily working 
37. No employer shall require or permit- 
      (a) a guard or shift worker to work for more than eight hours 
           on any day; 

      (b) any employee, other than a guard or shift worker- 

           (i) who normally works not more than five days during a week, 
                to work for more than twelve hours on any day; or 

          (ii) who normally works six days during a week, to work for 
               more than eight hours on any day. 

 Exemptioit  38.  (1) The Minister may, by order published in the Gazette, 
              grant temporary exemption from any or all provisions of this Part- 

             (a) in case of accident, actual or imminent,forre majeure or the 
                  need for urgent work to premises or equipment, but only in so far 
                  as may be necessary to avoid serious interference with the ordi- 
                  nary working of the undertaking; 

             (b) in the event of abnormal pressure of work due to special 
                  circumstances, in so far as the employer cannot ordinarily be 
                  expected to resort to other measures; and 

             (c) in order to prevent loss of perishable goods. 

            (2) Where temporary exemption is granted under subsection (1), 
                  the employees concerned shall be granted compensatory rest 
                  of a total duration of at least equivalent to that provided for in 
                  section 36 (4), and the hours worked beyond the maximum 
                  daily normal working hours shall be compensated as overtime, 
                  in conformity with section 39. 

Overtime  39.  (1) Overtime shall be subject to the limitations set out in sections 36 (4) 
             and 37. 

        (2) There shall be three classes of overtime known respectively as- 

              (a) ordinary overtime, which shall be time worked on a working 
                   day in excess of the hours normally worked by the employee 
                    in the undertaking concerned; 

              (b) day off overtime, which shall be time worked by an employee 
                    on a day on which he would otherwise be off duty; and 

              (c)  holiday overtime, which shall be time worked on a public 

         (3) An employee shall for each hour of ordinary overtime be paid 
              at the hourly rate of not less than one and one-half his wage for one 

         (4) An employee shall for each hour of day-off overtime be paid 
               at the hourly rate of not less than twice his wage for one hour. 

         (5) An employee shall for each hour of holiday overtime be paid 
               at a rate of not less than twice the normal hourly rate. 

for working 
on public 
 40.  (1) An employee, if not required to work on a public holiday, shall be 
             entitled to leave of absence with full pay on the holiday: 

              Provided that- 
              (a) an employee who absents himself without reasonable cause 
                   on the working day preceding the public holiday shall not be 
                   paid for the public holiday; 

              (b) where more than one public holiday is observed on successive 
                   days then, in order to qualify for payment ifi respect of the 
                    public holidays, an employee shall not have been absent without 
                    reasonable cause for the equivalent number of working days 
                    immediately preceding the public holidays; and 

               (c) an employee who, having been required to work on a public 
                     holiday, fails so to do without reasonable cause shall not be 
                     entitled to payment in respect of the public holiday. 

           (2) Each hour worked on a public holiday shall be paid for at the 
                 hourly rate of wages in addition to the day's pay required to be 
                 given under subsection (1): 

                  Provided that- 

                  (a) when the hours worked on the public holiday exceeds the 
                        number of hours normally worked, the additional hours shall 
                        be paid for at twice the hourly rate; and 

                   (b) where pay for a public holiday is not payable due to the 
                         absence of the employee from work on the day or days 
                         preceding the public holiday or holidays and the employer 
                         requires the employee to work on the public holiday or 
                         holidays, then the employee shall nevertheless be paid for all 
                         hours worked,on the public holiday or holidays at twice the 
                         normal hourly rate. 

41.  (1) For the purpose of this Act, "continuous employment" shall begin 
             from and include the first day oh which an employee begins to 
             work for an employer and shall continue up to and including the 
             date of termination of employment. 

        (2) It shall be presumed, unless the contrary is shown, that the 
             employment of an employee with an employer is continuous 
              whether or not the employee remains in the same job. 

        (3) An employee's continuous employment shall not be treated 
              as interrupted if the employee is absent from work for a period 
              less than six nionths- 

             (a) due to taking annual, maternity, sick or any other leave in 
                  accordance with this Act, any other enactment or agreement; 
             (b) due to his suspension'   with or without pay, in accordance 
                  with the provisions of this Act, any other enactment or agreement, 

            (c) due to the termination of his employment prior to being 
                  reinstated or re-engaged in accordance with section 63 or under 
                  any agreement; 

             (d) due -to having been temporarily laid-off by the employer; 

              (e) due to action in pursuance of A strike in which he participated; 
                   due to a lockout; or 

              (g) with the leave of his employer. 

          (4) Any period of time elapsing in the circumstances referre to 
                in subsection (3) shall count for the purposes of calculating 
               the continuous period of employment. 

          (5) Any period during which an employee is absent from work 
                because of his par.ticipati6h in a strike shall not interrupt the 
                continuity, but shall not count,for the purposes of calculating 
                the length of continuous employment. 

42. Where an undertaking or a part of it is sold, leased, transferred or 
       otherwise disposed of, the periods of employment of an employee 
       with the two successive employers shall be deemed to constitute a 
       single period. of continuous employment with the successor employer. 
43  Where An employer is en aged 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. 
Annual leave  44. (1) Every employee; except where otherwise provided for 
             in this Act, entitledto a period of, annual leave with pay of 
             not less than- 
           (a) eighteen working days if he works six days a week; and 

           (b) fifteen working days if he works five days a week, and the 
                leave shall be taken within six months of the entitlement to the 
                leave falling due: 

                Provided that the leave may be defer-red and accumulated by 
                mutual agreement. 

          (2) Where an employee's length of service in any one year, 
                including the period 'or to the completion of the first year of con- 
                tinuous service, is less than the leneth of service required for the full 
                entitlement set out in subsection J), the employee shall be entitled 
                to a period of annual leave with pay proportionate to his length of 
                service during that year. 

          (3) Where an employee is employed on a less than full-time 
                basis, any day on which the employee works shall, in the computa- 
                tion of periods of employment, be counted as one working day. 

Date of leave  45.  (1) The leave referred to in section 44- 

              (a) shall be granted by the employer, in consultation with the 
                   employee, as from a date determined by the employer, but not 
                   later than six months after the end of the year in respect of which 
                   the leave entitlement arose; 
              (b) shall not be concurrent with any period of- 
                   (i) sick leave granted pursuant to section 46; 
                   (ii) maternity leave granted pursuant to section 47; or 
                  (iii) notice of termination of contract of employment. 

               (c) shall be extended- by one working day with full pay for each 
                     public holiday which falls within the employee's period of leave 
                    and which falls on a day which otherwise would have been an 
                   ordinary working day for the employee. 

          (2) Upon termination of an employee's employment, the employer shall 
                pay him the remuneration in respect of any leave which accrued to 
                the employee but was not granted before the date of termination of 

         (3) The amount to be paid to an employee under this section shall 
               be calculated at the rate of at least the, wage which the employee 
               was receiving immediately prior to the date upon which his leave 
               commenced or his employment terminated, as the case may be. 

Sick leave  46.  (1) An employee shall be entitled, after completing twelve months' 
              continuous service, to at least four weeks sick leave on full 
              pay and eight weeks sick leave on half pay during each year. 

         (2) During sick leave, an employee shall be paid the normal rate 
              of wages. 
           (3) An employer shall not be bound to grant sick leave unless 
                the  employee produces a certificate from a registered medical 
                practitioner stating the nature of the employee's incapacity. 

47.  (1)  A female employee shall be entitled , within every three years, to at 
              least eight weeks maternity leave on full pay. 

       (2)  During the period when an employee is on naternity leave, her normal 
              benefits  and entitlements, including her contractual rights and 
              accumulation of seniority, shall continue uninterrupted and her period 
              of employment shall not be considered to have been interrupted, 
               reduced or broken. 

      (3)  In the event of illness, certified by a registered medical practitioner, 
             arising out of preganancy or confinement, affecting the employee or 
             her child, the employer shall grant the employee additional leave as 
             the employer may deem fit. 

Right to 
48.  (1) Upon the expiration of her maternity leave, an employee shall 
             have the right to return to the same job with the same benefits and
             entitlements as immediately before her absence, 

              (a) the job has ceased to exist because of the economic, tech- 
                    nological or organizational requirements of the undertaking; or

              (b) she is incapable of continuing to perform the job. 

          (2) In either of the circumstances mentioned in subsection (1), the 
               employer shall take reasonable steps to find the employee a 
               suitable alternative job within the undertaking. 

          (3) If no suitable alternative job can be found in accordance with 
                subsection (2) or if the employee unreasonably refuses the offer 
                of a suitable alternative job, the employer shall be entitled to 
                terminate her employment with notice, subject to the requirements 
                of section 28 and to providing a severance allowance under section

related to 
49.  (1) An employer who ternitnates the employment of an employee 
             because the employee is pregnant or for any reason connected 
             with her pregnancy shall be guilty of an offence and the burden of 
             proving that the employment was not terminated because of 
             pregnancy shall be on the ernployer. 

       (2) An employer who is convicted of an offence under subsection (1) 
             shall be liable to a fine of K20,000 and imprisonment for five years. 

       (3) In addition to imposing a penalty under subsection (2), the Court 
             may order-

             (a) the employer to reinstate the employee, who shall be treated in 
                  all respects as, if her employment had not been terminated; and 

             (b) an award of compensation as specified in section 63 (1) (c). 

        (3) Where reinstatement is ordered pursuant to subsection (3)(a), the 
              employer shall be liable to pay wages to the employee for the 
              period prior to such reinstatement. 

        (4) An employer who is ordered under subsection (2) to reinstate 
              an employee and refuses to do so shall be guilty of an offence and
               liable to a fine of K500 for each day during which the offence