Solicitud directa (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

1. Application of the Convention in practice. The Committee takes note of the information provided in the Government’s report received in August 2008, including the information responding to its 2007 direct request. The Committee notes the statistical information compiled by the Supreme Court of Justice on the number of individual labour disputes concerning the reinstatement of dismissed workers to the labour market which were examined between 2006 and the first semester of 2008. The Committee would appreciate if the Government would continue to provide information on the manner in which the Convention is applied in practice, including available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons (including examples of information provided by the employers to the workers’ representatives concerned in cases of collective dismissals, as envisaged under Article 13, paragraph 1, of the Convention).

2. Article 2, paragraphs 2 and 3. Adequate safeguards in case of recourse to contracts of employment for a specified period. In its 2007 direct request, the Committee noted that the Labour Code permitted fixed-term contracts of up to five years, and requested information on whether there were adequate safeguards in respect of these workers. The Government replies that workers on fixed-term contracts have the same rights as other employees, except that their contracts terminate when the term of contract expires and that, although severance pay is not paid, they are entitled to unemployment benefits. It further states that it does not have information on the number of workers affected by fixed-term contracts. The Committee reiterates its interest in receiving practical information on how the protection of the Convention applies to workers on fixed-term contracts. Please also provide copies of court decisions by which tribunals have dealt with this issue.

3. Article 4. Valid reason for termination. The Committee notes from the Government’s reply that an employee has the right to challenge the validity of a dismissal in the courts. Although the Government supplied the statistics of the cases of “illegal dismissal”, it did not supply leading court judgements as requested. The Committee reiterates its interest in receiving information on how the courts are addressing cases of “illegal dismissal” for the purposes of assessing compliance with Article 4 of the Convention.

4. Article 5. Invalid reasons for termination. The Government indicates that section 82(i) of the Labour Code, as amended by Law No. 8-XVI of 9 February 2006, provides for termination of employment where the heads of state units, or heads of the units in which the State is a majority shareholder, reach the age of 65. The Government states that this provision was not intended to discriminate against persons who reach the age of retirement. Section 82(i) of the Labour Code does not deprive persons with appropriate qualifications and capacity, who have reached the age of retirement, from the right to work. Accordingly, such persons can conclude labour contracts for periods of up to two years for positions other than that of the head of unit, which may subsequently be prolonged for a period that does not exceed five years. The Committee welcomes the information provided and requests that the Government continue to provide practical information on the application of the Convention to workers who have reached the age of retirement.

5. Article 5(c) of the Convention. Invalid reason for termination of employment. The Committee refers to its 2007 direct request and again asks the Government to specify how it ensures that the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws or regulations or the recourse to a competent administrative authority does not constitute a valid reason for termination.

6. Article 7. Procedure prior to termination. The Committee notes that section 206 of the Labour Code provides for the disciplinary sanctions that may be taken by an employer, which includes the possibility of dismissing an employee in respect of the grounds set out under section 86(1)(g), (k), (m), (o) and (r) of the Labour Code. It notes that section 208 provides for a disciplinary procedure in respect of disciplining sanctions, including dismissals. The Committee requests the Government to provide information on the manner in which these provisions of the Labour Code are applied in practice to ensure that a worker whose termination is envisaged for reasons of conduct or performance is provided an opportunity to defend himself against the allegations made. In particular, please provide copies of court decisions applying these provisions of the Labour Code.

7. Article 11. Period of notice. In response to the Committee’s 2007 direct request, the Government reports that, where termination of the labour contract is based on section 86, paragraph (1)(a), (f), (l), (n) and (s)–(z) of the Labour Code, the provision of notice is only mandatory if it is foreseen in the applicable collective agreements. The Committee requests the Government to clarify how it is ensured that persons who are not covered by applicable collective agreements are entitled to receive a reasonable period of notice or compensation in lieu thereof, as required under the Convention.

8. Article 12. Severance allowance and other income protection. In response to the Committee’s 2007 direct request, the Government reports that unemployment benefit is additional to severance pay. The Committee notes from the Government’s report that section 30 of Law No. 102-XV of 13 March 2003, persons who satisfy the following conditions: (i) they are registered at the National Employment Agency, belonging to the territorial area the office is charged with; (ii) they have worked and have a contribution period in the state social insurance system of at least six months of the last 24 calendar months prior to the date of registration; and (iii) they do not obtain taxable incomes according to the law, and have had their employment terminated on one of a series of grounds enumerated, shall be entitled to receive unemployment benefits. The Government further indicates that severance pay is not paid in cases of dismissal due to disciplinary reasons, unless it is otherwise foreseen by relevant collective agreements. The Committee asks the Government to supply it with a copy of Law No. 102-XV of 13 March 2003 and to provide more information on the way section 30 of that law is applied in practice. It also asks for information on the role of collective agreements in the provision of severance pay, so as to allow the Committee to better assess whether all persons covered by the Convention are entitled to severance payment, benefits from unemployment insurance, or a combination of the two. Please also provide copies of any court decisions which address this matter.