Navigating employment termination in Eswatini requires a clear understanding of the country's labour laws to ensure compliance and avoid potential disputes. The legal framework provides specific guidelines for employers regarding notice periods, grounds for dismissal, procedural fairness, and employee entitlements, including severance pay. Adhering to these regulations is crucial for businesses operating within the kingdom.
Properly managing the termination process is essential not only for legal compliance but also for maintaining fair labour practices. Employers must follow prescribed steps, provide appropriate notice or payment in lieu, and correctly calculate any terminal benefits due to the employee. Failure to comply can lead to claims of unfair dismissal and significant legal and financial consequences.
Notice Period Requirements
The minimum notice period required for terminating an employment contract in Eswatini depends primarily on the employee's length of service. These periods are designed to provide employees with time to seek alternative employment.
| Length of Continuous Service | Minimum Notice Period |
|---|---|
| Less than 6 months | 1 week |
| 6 months to less than 1 year | 2 weeks |
| 1 year or more | 1 month |
It is important to note that employment contracts or collective agreements may stipulate longer notice periods than the statutory minimums. In such cases, the longer period applies. Notice must generally be given in writing.
Severance Pay Calculations and Entitlements
Severance pay, often referred to as "additional terminal benefits" or "severance allowance," is typically payable to employees who have completed one year or more of continuous service upon termination, provided the termination is not due to serious misconduct by the employee.
The calculation of severance pay is based on the employee's length of service and their wage rate. The standard formula is two weeks' wages for each completed year of continuous service.
- Eligibility: Employees with 12 months or more of continuous service.
- Calculation: (Number of completed years of service) x (2 x Weekly Wage).
- Weekly Wage: Usually calculated by dividing the monthly wage by 4.33 or the daily wage by the number of working days per week.
This benefit is separate from other terminal benefits like accrued leave pay or notice pay (if payment in lieu of notice is given).
Grounds for Termination
Employment contracts in Eswatini can be terminated based on various grounds, broadly categorized as termination with cause and termination without cause.
Termination With Cause
Termination with cause typically relates to the employee's conduct, capacity, or the operational requirements of the business.
- Misconduct: Serious breaches of company rules, insubordination, dishonesty, theft, gross negligence, or other actions that fundamentally violate the employment relationship. The employer must follow a fair disciplinary process.
- Incapacity: The employee's inability to perform their job due to ill health (long-term or frequent short-term absence) or poor performance. For poor performance, the employer must demonstrate that the employee was given clear performance standards, support, and opportunity to improve. For ill health, the employer should explore reasonable accommodation before termination.
- Operational Requirements (Retrenchment): Termination due to economic, technological, structural, or similar needs of the employer. This requires a fair process, including consultation with employees or their representatives.
Termination Without Cause
Termination without cause refers to situations where the employer ends the employment relationship for reasons not directly related to the employee's conduct or capacity, and not necessarily due to operational requirements justifying retrenchment under the law. While an employer can terminate without specific "cause" as defined above, they must still provide proper notice (or pay in lieu) and pay all statutory terminal benefits, including severance pay if the employee is eligible. Termination without a valid reason and without following fair procedure can lead to a finding of unfair dismissal.
Procedural Requirements for Lawful Termination
A lawful termination in Eswatini requires not only a valid reason but also adherence to fair procedure. The specific steps vary depending on the grounds for termination.
| Grounds for Termination | Key Procedural Steps | Documentation Required |
|---|---|---|
| Misconduct | 1. Investigation of alleged misconduct. 2. Written notice to employee detailing charges and inviting to hearing. 3. Disciplinary hearing (employee right to representation). 4. Decision based on evidence. 5. Written notification of decision and right to appeal. | Investigation report, notice of hearing, minutes of hearing, written warning(s) (if applicable), termination letter. |
| Incapacity (Poor Performance) | 1. Identify performance issue. 2. Counsel employee, set clear standards, provide support/training. 3. Monitor and review performance over reasonable period. 4. Formal warnings if no improvement. 5. Hearing before termination. | Performance reviews, records of counselling/support, written warnings, minutes of hearing, termination letter. |
| Incapacity (Ill Health) | 1. Obtain medical evidence. 2. Consult with employee on nature/likely duration of illness. 3. Explore possibility of alternative work or reasonable accommodation. 4. Hearing before termination (if no alternative is feasible). | Medical reports, records of consultation, records of exploration of alternatives, minutes of hearing, termination letter. |
| Operational Requirements (Retrenchment) | 1. Identify need for retrenchment. 2. Consult with affected employees/representatives on reasons, alternatives, selection criteria, timing, and severance. 3. Apply fair and objective selection criteria. 4. Give notice of termination. | Written notification of proposed retrenchment, minutes of consultation meetings, selection criteria used, termination letters. |
| Other (e.g., expiry of fixed-term contract) | 1. Ensure contract terms are clear. 2. Provide notice if required by contract or law (though often not required for natural expiry). | Employment contract, termination letter (if applicable). |
Common procedural pitfalls include failing to hold a fair hearing for misconduct/incapacity, not consulting adequately during retrenchment, using unfair selection criteria, or failing to provide written notice.
Employee Protections Against Wrongful Dismissal
Eswatini labour law provides significant protection against unfair or wrongful dismissal. An employee who believes their termination was unfair can challenge it through the established dispute resolution mechanisms.
- Unfair Dismissal: A dismissal is generally considered unfair if the employer fails to prove that the reason for termination was valid (fair reason) and that the termination was carried out in accordance with a fair procedure.
- Dispute Resolution: Disputes are typically referred to the Conciliation, Mediation and Arbitration Commission (CMAC) for conciliation. If conciliation fails, the matter may proceed to arbitration at CMAC or, in some cases, to the Industrial Court.
- Remedies: If a dismissal is found to be unfair, the remedies available to the employee may include:
- Reinstatement: The employee is returned to their job with no loss of pay or benefits.
- Re-engagement: The employee is engaged in a similar position.
- Compensation: The employer is ordered to pay the employee compensation, typically calculated based on factors such as the employee's length of service, the reason for dismissal, and the employee's prospects of finding alternative employment, up to a maximum of 12 months' wages.
Employers must be diligent in ensuring both substantive fairness (a valid reason) and procedural fairness when terminating employment to mitigate the risk of unfair dismissal claims.
