International labour standards and comparative practices on Termination

International labour standards and comparative practices on Termination of Employment: Standards and Comparative Law Mélanie Jeanroy ACTRAv

QUIZZ � Why is protection for workers against termination of employment important? � What are in your views the minimum safeguards that should be provided? ◦ ◦ ◦ Reasons for termination of employment? Illegal reasons ? Procedure before termination? Procedure after termination? Income protection? Specific protection for certain categories of workers?

Dismissals Termination of employment at the initiative of the employer � ◦ topical issue of labour law reforms ◦ main cause of judicial litigation ◦ consequences for members of the society ◦ the economic crisis and in other times

ILO’s Standards on Dismissals Recommendation № 119, 1963 � Convention № 158 and Recommendation № 166 on termination of employment, 1982 � 36 ratifications influence on national legislation and regional policies (EU) recognition by the Economic and Social Council of the United Nations (Article 6 «Right to work» of the International Covenant on economic, social and cultural rights) ◦ use by domestic courts in national judicial practice ◦ Current status and ILO discussions ◦ ◦ ◦ 4

C 158 – Scope (art 2) � Possible exclusions from the scope of application ◦ probationary period (determined in advance and of reasonable duration) ◦ workers engaged on a casual basis for a short period ◦ categories of workers/employees with specific conditions of employment ◦ size or nature of the entreprise 5

Statutory maximum duration of probationary period 24 months 3 12 months 10 8 months 1 35 6 months 4 months 2 3 months 27 2 months 4 1. 5 months 1 3 1 month No statutory limitation 16 0 5 10 15 20 Number of countries 25 30 35 40

Size of enterprises excluded 14 12 10 8 Africa Americas Asia 6 Arab States Europe & Central Asia 4 2 0 ≤ 5 ≤ 10 ≤ 15 ≤ 20 ≤ 30 ≤ 50 ≤ 100 No employees employees exclusion

C 158 - Fixed-term contracts � Adequate safeguards against abusive recourse to fixed-term contracts (FTC) ◦ Reasons of conclusion of FTCs ◦ Limited duration of FTCs ◦ Limited number of renewals of FTCs 8

C 158 – valid reasons (art. 4) � Valid reasons for termination of employment ◦ worker’s capacity ◦ worker’s conduct ◦ operational requirements of the entreprise 9

C 158 – prohibited grounds (art. 5) � Prohibited reasons for dismissals ◦ Participation in trade union activities ◦ Filing a complaint against the employer ◦ Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction, social origin ◦ Absence during maternity leave ◦ Temporary absence because of illness

C 158 - Notice period (art. 11) reasonable duration compensation in lieu except in case of worker’ serious misconduct ◦ time off from work to seek other employment ◦ ◦ ◦ 11

CEACR – comments SERBIA 2013 � Article 11. Period of notice. In its report, the Government reiterates that the Labour Law establishes a notice period of between one and three months. Employees are entitled to severance pay and unemployment compensation from the National Employment Service (NES). The Committee understands that the notice period does not apply if the termination is due to non-performance or violation of discipline in the workplace. The Labour Law stipulates that in such cases, an employee is entitled to respond to the employer’s written warning within five days, after which the employer may terminate their employment. The Committee also notes that in the event of minor non-performance or violation of discipline in the workplace, the employer may only inform an employee that his or her employment will be terminated without further warning if the same or a similar violation is repeated. The Committee recalls that the only exception to the right to give notice (or compensation in lieu thereof) is in respect of an employee’s serious misconduct. The Committee therefore once again asks the Government to bring the Labour Law in line with the requirements of Article 11 of the Convention.

C 158 – Procedure prior to or at the time of termination (art. 7) � Dismissal for worker’s conduct or capacity ◦ worker’s right to defence against allegations ◦ appropriate instructions from the employer in case of worker’s unsatisfactory performance 13

C 158 – Dismissals for economic, technological, structural or similar reasons (art 13 and 14) Dismissals for economic reasons (redundancy, lay-off, retrenchment) � ◦ Consultation with workers’ representatives ◦ Notification to the competent public authority Definition of mass (collective) redundancy specified number or percentage of the workforce 14

Dismissals for economic, technological, structural or similar reasons (R 166 ) � Measures to avert or minimize dismissals for economic reasons ◦ training, internal transfers, voluntary early retirement, restriction of hiring, reduction of normal hours of work, restriction of overtime � Selection � Priority criteria for rehiring � Mitigating the effect of legislation ◦ Training and retraining ◦ Alternative employment 15

CEACR comments Malawi (2015): � Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Government previously indicated that all employers comply with administrative statements and policies on retrenchments; and retrenchment packages are examined before they are implemented. It had also indicated that consultations with the social partners were at an advanced stage to incorporate procedures of collective dismissals in the amended Employment Act. The Committee notes the judgment of the High Court in Case No. MZ 40 of 2010 (Kaira v. Malawi Telecommunications Limited) in which the Court referred to Article 13 of the Convention and indicated that, although not clearly provided in section 57 of the Employment Act, Convention No. 158, which Malawi ratified, obliges the employer to fully engage the employee in consultations as regards the impending restructuring. The Committee stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals.

Comparative Review of Regulation of Collective Dismissals for economic reasons (redundancy, lay-off, retrenchment) � ◦ Consultation with workers’ representatives ◦ Notification to the competent public authority 17

Comparative Review of Regulation of Collective Dismissals Ø Consultation with workers’ representatives and notification to public authorities (125 countries) • • Ø both procedures: 67 % only notification to public authorities: 10 % only consultation with workers’ representatives: 7 % no procedures: 17, 6 % Intervention of a third party in the redundancy process • autorisation by the public authority to dismiss workers: 18 % • autorisation by the trade union to dismiss its members: 5% 18

Comparative Review of Regulation of Collective Dismissals Ø Employer’s obligation to consider other options before dismissal Data for 109 countries: legal obligation in 54 % Ø Priority right for re-employment ◦ Data for 169 countries: priority of re-employment in 40% ◦ From 1, 5 months to 3 years ◦ Collective agreements and codes of good practices 20

C 158 Income protection � Severance allowance and other income protection qualifying conditions fixed amount, or based on length of service paid by the employer and/or the unemployment insurance fund ◦ combination of severance allowance and unemployment insurance benefits ◦ loss of entitlement to severance allowance in case of dismissal for serious misconduct ◦ ◦ ◦ 21

Convention 158 and Recommendation 166 � Procedure of appeal against termination of employment ◦ within a reasonable period of time after termination ◦ burden of proof on the employer ◦ Remedies for unjustified dismissal (damages, compensation, reinstatement) 22

Question? An employer can terminate the contract of employment at any time provided that he/she gives 1 month notice to the employee. Upon termination of employment an employee will be given severance pay amounting to 2 weeks pay per year of service. Any discriminatory dismissal will be unlawful and gives rise to damages or reinstatement of the employee. Is this in compliance with C 158?

The representation made by the trade union Force Ouvrière against the French government concerning a new form of contract of employment introduced by Ordinance No. 2005 -893 for enterprises with no more than 20 employees illustrates the use of this mechanism. The union alleged that the contract «for new employment» (hereinafter, “CNE”) gives “employers a two-year period in which they could terminate without a reason the employment of persons engaged under a CNE” and “this is not in conformity with Article 4 of Convention No. 158, under which «the employment of a worker shall not be terminated unless there is a valid reason for such termination» . ” The trade union stressed that although Article 2, paragraph 2, of Convention No. 158 provides for the possibility to exclude from the Convention’s scope «workers serving a period of probation» , this can be done subject to the condition that «the period is of reasonable duration» . The CNE, which sets the probationary period at two years, in the case of a contract of employment of indeterminate duration, does not satisfy the requirement for a reasonable duration within the meaning of the Convention. After examining the Government’s reply, the tripartite Committee recommended that the Governing Body: (…) b) invite the Government, in consultation with the social partners, to take such measures as may be necessary: