Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

1. The Committee notes the information contained in the Government’s report received in September 2009, including replies to the 2008 direct request and a judgement of the industrial court dated 27 June 2006, reference No. 9 of 2001, concerning a case of unfair dismissal. The Government also reports that there are no time limits placed in national law for workers to exercise their right to appeal against the termination of employment to an impartial body.

2.  Article 2, paragraph 2(b), of the Convention. Probationary employees. The Committee notes section C8(3) of the Labour Code which permits an employer to terminate employment during a probationary period without giving reason. It also notes the judgement of the Industrial Court (No. 9 of 2001) in which a claim for unfair dismissal was not upheld because termination occurred during a probationary period.

3. Article 2, paragraph 2(c). Exclusions. The Committee further notes that casual workers are excluded from the provisions of the Convention. The Committee asks the Government to indicate in its next report whether laws, regulations or court decisions limit or define what constitutes a “short period” with regard to workers engaged on a casual basis.

4. Article 4. Valid reason for termination. The Committee notes that the Government also indicates in its report that valid reasons for termination, relating to section C58(1)(e) of the Labour Code, include habitual lateness, absence, and a breach of trust between employer and employee. The Committee asks the Government to supply copies of the leading decisions of the industrial court on valid reasons for termination.

5. Article 5, paragraphs (c) and (e). Invalid reasons for termination. The Government indicates that through the process of collective bargaining, shop stewards are given the opportunity to participate in proceedings against an employer. The Government also reports that it is common practice that workers cannot be terminated if they report acts of violations by their employers. With regard to absence from work during maternity leave, the Government reports that once a woman is on maternity leave, she cannot be laid-off. The Committee asks the Government to indicate how effect is given to Article 5(c) of the Convention which provides that the filing of a complaint or the participation in proceedings against an employer involving an alleged violation of laws or regulations does not constitute a valid reason for termination. Please provide copies of the leading decisions of the industrial court on matters covered by Article 5.

6. Article 6. Temporary absence from work because of illness or injury. In response to the previous comments concerning section C16(ii) of the Labour Code, the Government indicates that the Labour Code and collective agreements provide for workers entitlement to sick leave. The Government further indicates that the law is not clear as to what constitutes prolonged illness and that there have been instances where employers have dismissed employees for prolonged illness as per the Labour Code. The Committee notes that section C16(ii) permits an employer to terminate the contract of an employee on sick leave if the extent of such leave taken renders the employee unfit to continue to fulfil the duties arising from the employment contract. The Committee notes that this definition of temporary absence from work is accordingly defined in decisions of the industrial courts. The Committee asks the Government to provide copies of the leading decisions of the industrial court on this matter.

7. Article 7. Opportunity to defend oneself against allegations made. The Committee notes that the Government indicated in its first report on the application of Convention No. 158 that there are no legal provisions which afford workers the opportunity to defend themselves against allegations made prior to termination. In the report received in September 2009, the Government reiterates that it is an established practice that workers are afforded the opportunity to defend themselves. The Committee once again requests the Government to provide information on its practice and supply any court decisions in which the failure to give an employee an opportunity to defend oneself was deemed to be unfair.

8. Article 13. Terminations of employment for economic, technological, structural, or similar reasons. Consultation of workers’ representatives. The Government indicates that there are no legislative measures in place that ensure consultation with workers’ representatives concerning terminations in cases for economic, technological, structural or other reasons. However, the Government further indicates that unions use the process of collective bargaining to address this issue. The Committee asks the Government to provide detailed information concerning the effect given to Article 13 through collective agreements, by supplying the information requested in the report form.

9. Article 14. Terminations of employment for economic, technological, structural, or similar reasons. Notification to the competent authority. The Committee recalls that Article 14(3) provides that the minimum period of time before carrying out terminations has to be specified in national laws or regulations. The Committee requests the Government to indicate the measures taken or envisaged to give effect to Article 14(3) through laws or regulations.