Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 158) sur le licenciement, 1982 - République de Moldova (Ratification: 1997)

Autre commentaire sur C158

Observation

2002

Demande directe

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Article 2(2) and (3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period of time. The Government indicates that section 54 of the Labour Code was amended, by Law No. 205 of 20 November 2015, which prohibits the use of fixed-term employment contracts unless there are specific reasons justifying restricting the duration of an individual employment contract. Section 54(4) of the Labour Code now prohibits the use of individual fixed-term employment contracts for the purpose of avoiding the rights and guarantees afforded to workers on employment contracts for an indefinite period of time. Section 54(5) provides that individual fixed-term employment contracts made for reasons other than the legal grounds verified by the State Labour Inspectorate will be deemed to have been made for an indefinite period of time. Moreover, section 55 of the Labour Code, which establishes the grounds for concluding individual employment contracts for a specified fixed period, was amended to include three additional grounds: (1) implementing an investment project or programme for the provision of technical and financial assistance; (2) carrying out work related to a higher volume of production or rendering services of a temporary character (up to one year); and (3) employment at units established to act for a definite period of time. The Government indicates that the amendments to the Labour Code seek to strike an acceptable balance between the interests of employers and those of workers. It adds that the amendments were developed and introduced within the framework of a tripartite working group consisting of representatives of the Government, the National Confederation of Trade Unions and the National Confederation of Employers of the Republic of Moldova. The Committee requests the Government to continue to provide information on the measures taken or contemplated to prevent use of contracts of employment for a specified period of time, including information on the application in practice of sections 54 and 55 of the Labour Code, as amended, as well as information on the activities of the State Labour Inspectorate enforcing the application of these sections of the Code. Please also provide copies of any relevant court decisions in this regard.

Article 4. Valid reasons for termination of employment. The Committee notes that the 2012 amendments to the Labour Code introduced an additional ground for termination of individual employment contracts of teaching staff: retirement upon activation of pension. The Government indicates that this additional ground was added due to the need to optimize the use of the labour force in the field of education, where many teaching positions are occupied by pensioners, while graduates remain unemployed due to the lack of vacant teaching positions. According to section 301 of the Labour Code, termination of an individual employment contract on this ground is an option and not an obligation of the employer. The Committee requests the Government to provide information on the manner in which these additional grounds of termination are applied in practice. It also requests the Government to provide copies of relevant court decisions in this regard.

Articles 5(c), 7 and 8. Invalid reasons for termination of employment. Procedure prior to termination of employment and procedure of appeal. In reply to the Committee’s previous comments, the Government indicates that filing a complaint, participating in proceedings against an employer involving alleged violations of laws or regulations, or recourse to a competent administrative authority do not constitute valid reasons for termination. With respect to the procedure prior to termination of employment and appeals procedures, the Committee recalls that cases of unlawful dismissal were reported by the labour inspection, including violations of workers’ rights to be informed of the specific grounds for their dismissal as well as of their right to be informed of the authority to which they may appeal against the application of disciplinary sanctions. The Committee requests the Government to provide updated information on the number and type of violations identified by the labour inspection authorities. Please also provide copies of relevant court decisions giving effect to Articles 7 and 8 of the Convention.

Article 11. Reasonable period of notice. The Government indicates that the general terms of notice for termination of individual employment contracts are set out in the Labour Code, which applies to public and private entities. According to section 184 of the Labour Code, an employer is required to notify a worker of its intention to terminate the individual employment contract, regardless of whether the contract is for an indefinite or specified period. The length of the period of notice may not be less than one month, with a two-month notice period required in certain cases, such as in the event of liquidation of a business unit or cessation of the employer’s activities. Moreover, section 184 of the Labour Code sets out the notice period in the event of termination of employment based on the operational requirements of the undertaking, establishment or services and in cases related to the capacity of the worker concerned due to the worker’s state of health (Article 4 of the Convention). The Committee notes that for employees with individual employment contracts of less than two months, the employer is required to provide at least three calendar days’ notice of termination. The Committee requests the Government to explain in detail the reasons for fixing the notice period for workers with employment contracts of less than two months at the short period of only three days, as well as the reasons for expressing this notice period in calendar days. The Committee also requests the Government to provide further information on the application of the notice period requirements in cases of termination based on the capacity or conduct of the worker, indicating the manner in which it is ensured that workers receive reasonable notice in such cases.

Article 12. Severance allowance and other income protection. The Government indicates that workers whose employment is terminated at the initiative of the employer are guaranteed compensation payments in view of dismissal. The Government adds that the notice period and payment of severance and unemployment allowances are not alternative measures, but are intended to be complementary. Thus, workers who may benefit from a period of notice of two months, according to section 184 of the Labour Code, may also receive a severance allowance as provided for in section 186 of the Labour Code. Following the dismissal, and if they meet the conditions provided in the Labour Code, workers may also receive unemployment allowances. The Committee requests the Government to provide further information on the severance allowances and other forms of income protection afforded to workers terminated for reasons related to their capacity or conduct. The Committee also refers to its previous comments and requests the Government to provide information on the role of collective agreements in ensuring provision for severance allowances and other types of income protection that may be afforded to the workers concerned.

Application of the Convention in practice. The Committee notes that the Government has appended extracts from court decisions to its report. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including, for example, copies of court rulings concerning questions of principles relating to the application of the Convention or summaries of the important court rulings and 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 upon) and on the number of terminations for economic or similar reasons in the country.