Solicitud directa (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

1. Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s report received in November 2006 and the adoption of Law No. 154-XV of 28 March 2003 issuing the Labour Code of the Republic of Moldova. It notes, in particular, that, according to the statistics in the Government’s report, 320 individual labour disputes concerning cases of dismissal were submitted to the judicial authorities in 2005 and 249 cases were examined. During the first three months of 2006, 79 cases were submitted to the judicial authorities, 42 of which were resolved. The Committee asks the Government to continue providing information on the manner in which the Convention is applied in practice, in particular on the activities of the courts or the competent labour administration authorities.

2. Article 2, paragraphs 2 and 3, of the Convention. Safeguards in the event of recourse to fixed-term contracts. The Committee notes sections 54(2), and 55 of the Labour Code, which provide that, in certain cases, the employer may resort to a fixed-term contract for a maximum duration of five years. The Committee asks the Government to provide detailed information on the manner in which the protection afforded by the Convention is ensured for all workers engaged under a fixed-term contract in pursuance of these sections, and to indicate the number of workers affected by these measures.

3. Article 4. Valid reason for termination. The Committee notes section 86(1), of the Labour Code, which lists the various valid reasons for termination. It asks the Government to indicate the manner in which it is ensured in practice that the employment of a worker is not terminated without a valid reason, as referred to under Article 4 of the Convention, and to provide copies of any relevant court decisions.

4. Article 5. Invalid reasons for termination. The Committee notes the new section 82(i) of the Labour Code, inserted by Law No. 8-XVI of 9 February 2006. In its observations received in July 2006 on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Confederation of Trade Unions of the Republic of Moldova (CSRM) stated that this new provision allows for the termination of an employment contract in cases where the employee has reached retirement age and that it discriminates on the basis of age and will lead to the unjust dismissal of older workers. In this respect, the Committee recalls that the Termination of Employment Recommendation, 1982 (No. 166) in its Paragraph 5(a) indicates that “age, subject to national law and practice regarding retirement” should not constitute valid reasons for termination. It refers to its 2006 observation on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and asks the Government to provide any available information on the implementation of section 82(i) of the Labour Code. The Government is also asked to specify the manner in which it is ensured that the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations, or recourse to competent authorities, does not constitute a valid reason for termination.

5. Article 7. Procedure prior to termination. In its report, the Government states that, in cases where dismissal is based on the disciplinary reasons set forth in section 86(1)(g), (k), (m), (o) and (r), the employer must ask the worker whose termination of employment is contemplated to provide a written explanation of the offence committed (sections 208 and 209 of the Labour Code). The Committee notes that for dismissals based on the other reasons set forth in section 86(1), the worker does not seem to be provided with any opportunity to defend himself against the allegations made. In this respect, it reminds the Government that the purpose of this Article of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties (General Survey on the protection against unfair dismissal, 1995, paragraph 148). The Committee asks the Government to indicate the manner in which it is ensured that a worker whose termination of employment is contemplated for a reason set forth in section 86(1), other than those mentioned under points (g), (k), (m), (o) and (r), is not dismissed before being provided with an opportunity to defend himself against the allegations made.

6. Article 9, paragraph 3. Examination by the labour courts in the case of termination for reasons based on the operational requirements of the undertaking, establishment or service. The Government is requested to indicate whether the labour courts are empowered, in the case of appeal, to determine whether the termination was for reasons relating to the operational requirements of the undertaking, establishment or service, and to state the extent to which they are empowered to decide whether these reasons are sufficient to justify the termination.

7. Article 11. Period of notice. The Committee notes section 184 of the Labour Code which sets a period of notice of one to two months for dismissals based on certain reasons set out in section 86(1), of the Labour Code. The Committee asks the Government to indicate whether a period of notice must be respected in the case of dismissal based on the reasons set forth in section 86(1)(a), (f), (l), (n) and (s)–(z) of the Labour Code, and to specify the applicable legislative provisions.

8. Article 12. Severance allowance and other income protection. The Committee notes section 186 of the Labour Code which provides for the payment of a severance allowance in the case of dismissal based on certain reasons set forth in section 86(1), of the Labour Code. The Committee asks the Government to indicate whether workers dismissed for reasons set forth in section 86(1)(a), (f)–(s), (u)–(x) and (z) of the Labour Code are entitled to a severance allowance, benefits from unemployment insurance or a combination of both, in accordance with Article 12 of the Convention. The Government is also requested to specify whether provision is made for the loss of entitlement to severance allowance in the event of dismissal for serious misconduct and, if so, to indicate how serious misconduct is defined by legislation and practice, while providing copies of relevant court decisions.

9. Article 13, paragraph 1. Informing and consulting workers’ organizations. In its report, the Government states that section 88(1)(i), provides that an employer has the right to dismiss workers for reasons relating to the liquidation of the undertaking or in order to reduce the number of workers or staff, providing that he informs the trade unions of the respective undertaking or branch and engages in negotiations with them on the observance of workers’ rights and interests. The Committee asks the Government to indicate the procedures followed in these negotiations and the information that the employer must provide for the workers’ representatives concerned on such occasions. It also asks the Government to indicate the purpose of these consultations and to specify what is covered in practice by “workers’ rights and interests”.

[The Government is asked to reply in detail to the present comments in 2008.]