115. We observe that the requirement for written particulars under section 27(4) of
the Act is but an amelioration of the rights of employees, in general. In its
wisdom, Parliament deemed it that where the number of employees is below
5, whether they are domestic workers or not, the employer is not obligated to
provide the written particulars of employment. The limitation is thus duly
prescribed by law.
116. Though inconvenient, as oral contracts are difficult to prove in Court, the 1st
Claimant has failed to demonstrate that this is unreasonable. Further, we are
firm that the fact that a majority of domestic workers would invariably end up
within the bracket of 5 employees does not, in any way offend any of the
constitutional provisions that have been cited.
117. More importantly, the ILO Convention No. 189 on information on terms and
conditions of employment for domestic workers (Article 7) provides that
domestic workers must be informed of their terms and conditions of
employment in an easily understandable manner, preferably through a
written contract. Thus, international law does not make it mandatory for
States to provide written terms and conditions of employment to domestic
workers. Considering the economic development of Malawi and the practical
imperatives of requiring every domestic worker to have a written contract, it
is our opinion that section 27(4) is currently necessary in an open and
democratic society.
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