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Termination and Severance Policies

Learn about the legal processes for employee termination and severance in Eswatini

Notice period

In Eswatini, the Employment Act of 1980 governs the minimum notice periods required for employment termination.

Notice Period Based on Employment Duration

The Act outlines the required notice period based on the employee's length of service:

  • After Probation and One Month of Employment: One week's notice is required for either the employer or employee.
  • Three to Twelve Months' Employment: Notice period is two days for each completed month of continuous service.
  • More Than Twelve Months' Employment: Notice period is one month plus four days for each completed year of service.
  • Example: An employee has been continuously employed for 18 months. The employer must provide a minimum notice period of (2 days/month * 18 months) + 1 month = 4 months notice before termination.

Exceptions to Notice Periods

The Act acknowledges situations where the standard notice periods might not apply:

  • Probationary Period: During the probationary period (maximum 3 months), either party can terminate the employment without notice.
  • Fixed-Term Contracts: If the employment contract is for a specific project with a pre-determined end date, notifying the employee of the project's completion serves as sufficient notice.
  • Summary Dismissal: In cases of serious misconduct by the employee, the employer can dismiss them summarily without notice.

Employee Rights During Notice Period

The Act also protects employee rights during the notice period:

  • Time to Seek New Employment: Employers must allow employees reasonable time to search for new employment during the notice period. This includes a minimum of twelve hours per week, with specific timings agreed upon between the employer and employee.

Severance pay

Severance pay in Eswatini is largely determined by the circumstances leading to the termination of employment.

Entitlement to Severance Pay

According to Section 34 of the Employment Act, 1980 (Act No. 2 of 1980), severance pay is generally payable in the following situations:

  • Dismissal due to redundancy: When an employee's role becomes redundant and the employer can no longer justify their continued employment.
  • Dismissal due to employer's incapacity: If the employer is unable to continue running the business due to reasons beyond their control, such as bankruptcy or a natural disaster.
  • Involuntary retrenchment: Where the employer needs to reduce its workforce due to economic circumstances.

Non-Entitlement to Severance Pay

Severance pay is typically not payable in the following circumstances:

  • Retirement: The Industrial Court of Eswatini and the Eswatini Court of Appeal have established precedence that retirement does not qualify for severance pay, as it is not an employer-initiated termination.
  • Summary dismissal for misconduct: If an employee is dismissed summarily due to gross misconduct, they generally forfeit their right to severance pay.
  • Resignation: Voluntary resignation by the employee does not entitle them to severance pay.
  • Fixed-term contract completion: Expiration of a fixed-term contract, if it aligns with a pre-determined end date of a project, does not normally necessitate severance pay.

Calculation of Severance Pay

If an employee qualifies for severance pay, the amount is calculated based on their length of continuous service (Section 34(1)):

  • 10 working days' wages for each completed year of service after the first year.

Termination process

Termination of employment in Eswatini is governed by the Employment Act of 1980 (Act No. 2 of 1980). The process is regulated and involves several key steps and legal considerations.

Notice and Written Form

Except in exceptional circumstances, both employers and employees are required to provide notice before termination. While verbal notice can be initially given, the Employment Act mandates the terminating party to provide written notice confirming the termination and its effective date. This document should outline the reason for termination.

Reasons for Termination

The reason for termination must be valid to ensure fairness. The Employment Act recognizes redundancy, incapacity to perform work, operational requirements, and misconduct as grounds for termination.

Summary Dismissal

An employer can summarily dismiss an employee without notice only in very limited cases of gross misconduct, such as theft, violence, or gross insubordination. Even in cases of summary dismissal, the employer must give the employee a chance to respond to the allegations.

Unfair Dismissal

Employees who believe their termination was unfair can file a claim of unfair dismissal with the Industrial Court. If the Court finds the dismissal to be unfair, it might order reinstatement, compensation, or other remedies.

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