Termination of employment

Question 1

Aim of the Termination of Employement Convention

Answer 1

To define a set of standards concerning termination of employment (e.g., justification for termination, procedures prior to termination, procedures for appeal, period of notice, income protection, terminations of employement for eco/techno/strucural or similar reasons, etc.)

Question 2

Main sources

Answer 2

BINDING SOUCRES =
- Termination of employment Convention and Recommendation (ILO)
- Revised European Social Charter 1996 (art 8, 24, 27, 28, 29)
- Charter of Fundamental Rights of the EU 2007 (art 27, 30, 33) + Directive 98/59/EC

NON-BINDING SOURCES =
- Community Charter of the Fundamental Social Rights of workers 1989 (art 7, 18)
- European Pillar of Social rights 2017 (art 7, 8)

Question 3

Scope of application of the Termination of Employment Convention

Answer 3

Article 2: “This Convention applies to all branches of economic activity and to all employed persons”

Limitations:
- Wide discretion of Member States to provide for derogations and exclusions
- Conv. does not apply to fixed-term workers nor to self-employed workers
- The Convention does not deal with resignations (termination of employment at the initiative of the employee) or terminations which arise out of a freely negotiated agreement reached by both parties, but only with dismissals;

Question 4

According to the Termination of Employment Convention, what is the general requirement for the termination of a worker’s employment?

Answer 4

The employment of a worker should not be terminated unless there is a valid reason connected to the worker’s capacity, conduct, or operational requirements.

Question 5

What are the invalid reasons for termination specified in the Termination of Employment Convention?

Answer 5

• Temporary absence from work due to illness or injury is not a valid reason for termination.
• Union membership, participation in union activities, seeking workers’ representative office, filing complaints against an employer, and discriminatory factors are not valid reasons for termination.

Question 6

What are the provisions regarding the period of notice in the Termination of Employment Convention?

Answer 6

A worker whose employment is to be terminated is entitled to a reasonable period of notice or compensation unless guilty of serious misconduct.

Question 7

What entitlements does a worker have regarding severance allowance and other income protection under the Termination of Employment Convention?

Answer 7

• A worker whose employment has been terminated is entitled to severance allowance or other separation benefits, based on length of service and level of wages.
• Alternatively, benefits from unemployment insurance or assistance, and other forms of social security, may be provided.

Question 8

What is the procedure for appealing against termination as per the Termination of Employment Convention?

Answer 8

• A worker who believes their employment was unjustifiably terminated has the right to appeal to an impartial body, such as a court, labour tribunal, arbitration committee, or arbitrator.
• Failure to exercise the right to appeal within a reasonable period may be deemed as waiving the right.

Question 9

What procedural steps should be taken prior to terminating a worker’s employment, according to the Termination of Employment Convention?

Answer 9

The worker should be provided with an opportunity to defend themselves against allegations related to their conduct or performance before termination.

Question 10

What powers do the bodies referred to in Article 8 of the Termination of Employment Convention have in relation to termination?

Answer 10

• These bodies are empowered to examine the reasons for termination and other circumstances, rendering a decision on whether the termination was justified.
• To prevent the worker from bearing the burden alone, methods of implementation may require the employer to prove the existence of a valid reason for termination, or the bodies may reach a conclusion based on evidence provided by the parties.

Question 11

If the bodies find termination unjustified, what powers do they have according to the Termination of Employment Convention?

Answer 11

If unable to declare termination invalid or order reinstatement in accordance with national law, they are empowered to order payment of adequate compensation or other appropriate relief.

Question 12

Employment security also in…

Answer 12

Right to Organise and Collective Bargaining Convention, 1949 + Workers’ Representatives Convention, 1971 + Workers’ Representatives Recommendation, 1971 (-> Trade union freedom and collective bargaining)

Discrimination Convention, 1958 + Maternity Protection Convention, 2000 + Workers with Family Responsibilities Convention, 1981 + Workers with Family Responsibilities Recommendation, 1981 + HIV and AIDS Recommendation, 2010 + Older Workers Recommendation, 1980 (Equality of opportunity and treatment)

Migration for Employment Recommendation (Revised), 1949 + Migrant Workers Recommendation, 1975 (-> Migrant workers)

Question 13

What are the additional grounds that should not constitute valid reasons for termination, according to the Termination of Employment Recommendation?

Answer 13

• Age (subject to national law and practice regarding retirement).
• Absence from work due to compulsory military service or other civic obligations, in accordance with national law and practice.

Question 14

What entitlement does a worker have during the period of notice, as mentioned in the Termination of Employment Recommendation?

Answer 14

The worker is entitled to a reasonable amount of time off without loss of pay, during the period of notice, for the purpose of seeking other employment. This time off should be taken at times convenient to both parties.

Question 15

What conditions should be met prior to terminating a worker’s employment for misconduct, according to the Termination of Employment Recommendation?

Answer 15

• The employment of a worker should not be terminated for misconduct that would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning.
• A worker should be entitled to be assisted by another person when defending against allegations that could result in the termination of employment.

Question 16

Under what circumstances should an employer be deemed to have waived the right to terminate a worker’s employment for misconduct?

Answer 16

The employer should be deemed to have waived the right to terminate employment for misconduct if he has failed to do so within a reasonable period of time after having knowledge of the misconduct.

Question 17

What notification and information rights do workers have in case of termination, as per the Termination of Employment Recommendation?

Answer 17

• The employer should notify a worker in writing of a decision to terminate employment.
• A worker who has been notified of termination or whose employment has been terminated should be entitled to receive, on request, a written statement from the employer explaining the reason or reasons for termination.

Question 18

What procedures are recommended for appealing against termination under the Termination of Employment Recommendation?

Answer 18

• Provision may be made for recourse to a conciliation procedure before or during appeal proceedings against termination of employment.
• Efforts should be made by public authorities, workers’ representatives, and organizations of workers to ensure that workers are fully informed of the possibilities of appeal available to them.

Question 19

What are the preliminary provisions outlined in the Termination of Employment Recommendation concerning termination for economic, technological, structural, or similar reasons?

Answer 19

• All parties should seek to avert or minimize termination for such reasons without prejudicing the efficient operation of the undertaking, establishment, or service.
• The competent authority should assist parties in finding solutions to the problems raised by contemplated terminations.

Question 20

What is the consultation process recommended for major changes in an undertaking that may lead to terminations, according to the Termination of Employment Recommendation?

Answer 20

• When major changes are contemplated, the employer should consult workers’ representatives as early as possible.
• Consultations should cover the introduction of changes, their likely effects, and measures to avert or mitigate adverse effects. Relevant information should be provided to workers’ representatives in a timely manner.

Question 21

What measures should be considered to avert or minimize terminations for economic, technological, structural, or similar reasons, according to the Termination of Employment Recommendation?

Answer 21

• Possible measures include restricting hiring, spreading workforce reduction over time, internal transfers, training and retraining, voluntary early retirement with income protection, restricting overtime, and reducing normal hours of work.
• Temporary reduction of normal hours of work may be considered, with partial compensation for loss of wages financed appropriately under national law and practice.

Question 22

What criteria should be used for selecting workers for termination due to economic, technological, structural, or similar reasons, as per the Termination of Employment Recommendation?

Answer 22

The selection should be made based on criteria, preferably established in advance, giving due weight to the interests of the undertaking, establishment, or service and the interests of the workers.

Question 23

What priority of rehiring should be provided for workers whose employment has been terminated for economic, technological, structural, or similar reasons, according to the Termination of Employment Recommendation?

Answer 23

Workers should be given a certain priority of rehiring if the employer hires workers with comparable qualifications, subject to their expressing a desire to be rehired within a specified period from the time of their leaving.

Question 24

How can the adverse effects of termination for economic, technological, structural, or similar reasons be mitigated, as per the Termination of Employment Recommendation?

Answer 24

• Placement in suitable alternative employment with training or retraining should be promoted by measures suitable to national circumstances, taken by the competent authority, with collaboration from the employer and workers’ representatives.
• Income protection during training or retraining and partial or total reimbursement of associated expenses should be considered to mitigate adverse effects.