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Termination of Employment Convention, 1982 (No. 158) - Democratic Republic of the Congo (RATIFICATION: 1987)

Observations by the Labour Confederation of Congo (CCT). Abusive dismissals. In its previous comments, the Committee invited the Government to provide its own comments on the observations of the CCT, indicating whether the dismissal of around 40 employees of a private multinational enterprise governed by French law were based on valid reasons (Article 4 of the Convention) and whether the dismissed workers were entitled to severance allowances (Article 12). It also requested the Government to provide information on the measures adopted to mitigate the effects of the dismissals, such as those envisaged in Paragraphs 25 and 26 of the Termination of Employment Recommendation, 1982 (No. 166). In its report, the Government indicates that section 78 of the Labour Code adopted in 2002 prohibits mass dismissals, and that the information held by the Government does not indicate that the dismissed workers did not receive severance allowances, as no complaint was noted. The Committee notes that, with regard to measures adopted to mitigate the effects of the dismissals, the Government indicates that the provisions of section 78 of the Labour Code guarantee priority hiring in the event of a resumption of activity. The Committee also notes that section 78 provides that mass dismissals on economic grounds are prohibited, “except for possible exceptions that will be determined by an order of the Minister responsible for labour and social security” and sets out the applicable procedure. Noting that the Government provides information of a general nature concerning the above-mentioned dismissals, the Committee requests the Government to provide information on the procedure followed in the case reported by the CCT, including copies of inspection reports, where possible. It once again requests the Government to provide specific information indicating whether the dismissals were based on valid reasons (Article 4 of the Convention) and whether the dismissed workers were entitled to severance allowances (Article 12). It also once again requests the Government to provide specific information on the measures adopted in this particular case to mitigate the effects of the dismissals, such as those envisaged in Paragraphs 25 and 26 of the Termination of Employment Recommendation, 1982 (No. 166).

In its previous comments, the Committee also requested the Government to provide a report containing information on the practice of the labour inspectorate and the decision of the courts on matters of principle relating to the application of Articles 4, 5 and 7 of the Convention. It also requested it to indicate the number of appeals against termination, their outcome, the nature of the remedy awarded and the average time taken for an appeal to be decided (Parts IV and V of the report form). The Committee notes that the Government has provided inspection reports from 2014, 2015, 2016 and 2017 but that these reports do not contain information on the application of the above-mentioned Articles. The Committee therefore once again requests the Government to provide information on the practice of the labour inspectorate and the decision of the courts on matters of principle relating to the application of Articles 4, 5 and 7 of the Convention. It also reiterates its request to the Government to indicate the number of appeals against termination, their outcome, the nature of the remedy awarded and the average time taken for an appeal to be decided (Parts IV and V of the report form).

Article 7. Procedure prior to, or at the time of, termination. In its previous comments, the Committee requested the Government to provide copies of collective agreements which provide for the possibility of a specific procedure to be followed prior to, or at the time of, termination, as required by the Convention, and to indicate the manner in which this provision of the Convention is given effect for workers not covered by collective agreements. The Government indicates that: (i) it ensures that collective agreements are in conformity with sections 63, 72, 73 and 75 of the Labour Code; and (ii) in addition to enterprise collective agreements, there is the national inter-occupational labour agreement, of which it provides a copy. The Committee nevertheless notes that the copy of the latter agreement was already provided by the Government in its 2013 report and that, in this regard, it considered that the above-mentioned collective agreement did not appear to envisage the possibility of a specific procedure to be followed prior to, or at the time of, termination. The Government adds that enterprises that have not concluded collective agreements are required to adhere to the sectoral collective agreement and the procedure to be followed prior to, or at the time of, termination is provided by the implementing measures, such as Order No. 12/CAB.MIN/TPS/116/2005 of 26 October 2005, determining the terms of dismissal of workers. The Committee notes with interest that Act No. 16/010 of 15 July 2016, amending and supplementing Act No. 015-2002 issuing the Labour Code, with respect to section 62, provides that “when the employer envisages dismissal for grounds related to the worker’s aptitude or conduct, he or she is required, before any decision is taken, to allow the person concerned to defend himself or herself against the allegations made or to provide an explanation for the grounds put forward”. The Committee requests the Government to provide up-to-date information on the application in practice of the Labour Code with regard to the possibility offered to workers to defend themselves against the allegations against them before any dismissal measures are imposed, as well as the application of the above Order. It also once again requests the Government to provide copies of the collective agreements which provide for the procedure to be followed prior to, or at the time of, termination.

Article 12. Severance allowance and other income protection. In its previous comments, the Committee noted that national legislation does not provide for severance allowances or other forms of income protection for dismissed workers. The Committee therefore reiterated its request to the Government to indicate the manner in which effect is given to Article 12 of the Convention. The Committee notes the Government’s indication that in order to prevent workers from being adversely affected, tax deductions are limited to 10 per cent during the notice period. However, other categories are not taxed, except for non-statutory family benefits. Noting, once again, the absence of specific information in the Government’s report in response to the Committee’s request, it urges the Government to provide detailed information indicating the manner in which effect is given to Article 12 of the Convention.

Articles 13 and 14. Terminations for economic or similar reasons. In its previous report in 2013, the Government indicated that the Ministry of Employment, Labour and Social Welfare signed 15 orders authorizing collective terminations for economic or similar reasons, covering 701 workers in 2012–13. The Committee invited the Government to indicate whether the dismissed workers were entitled to severance allowances (Article 12) and to provide information on the measures taken to mitigate the effects of terminations for economic or similar reasons, as envisaged in Paragraphs 25 and 26 of the Termination of Employment Recommendation, 1982 (No. 166). Noting that the Government’s report does not contain information in this regard, the Committee once again requests the Government to provide the information requested.