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1. The Committee notes the detailed reply to its 2006 direct request provided by the Government in its report received in July 2008. The Government indicates that the application of the Convention does not raise particular difficulties. With reference to its previous direct request, the Committee would be grateful if the Government would provide in its next report any court ruling or other decision based on sections 35, 37 and 38 of the Labour Code in relation to the justification of termination of employment (Article 4 of the Convention) or based on section 39 of the Labour Code respecting serious misconduct (Article 11).
2. Article 2. Listed Exclusions. The Committee recalls that the Government in its first report listed only two categories of workers for exclusion under Article 2, paragraph 4 of the Convention, namely workers in public enterprises and seafarers. The Committee notes that article 4 of the Labour Code provides that these categories of workers are subject to special laws which may not be less favourable than those contained in the Code. The Government is requested to include in its next report copies of these laws and to indicate how these categories are provided the protection afforded by the Convention.
3. Article 2. Purported exclusions. The Committee notes that in article 3 of the Labour Code, the following workers, in addition to those listed in the first report, may be excluded from the application of the Code: workers in mining; workers in the film industry; professional journalists; and janitors. These categories of employees were not listed for exclusion in the Government’s first report as requested by Article 2, paragraph 6 of the Convention and, accordingly, may not be excluded from the protection afforded by the Convention. The Committee notes, however, the Government’s reply that these categories of workers are provided protection of the Convention because article 4 of the Labour Code states that they are subject to special laws that may not be less favourable than the Code and that, to the extent that the special laws do not cover a matter, the Code applies. The Committee notes that it is permissible for a Member to give effect to the Convention in more than one law and it is unnecessary to regard them as exclusions.
Domestic workers and workers in the traditional sector are excluded from the application of the Code under article 4. This article of the Code provides that these categories are to be regulated by special laws. The Government indicates in its reply that it considers these categories to be excluded under Article 2, paragraph 5, of the Convention. The Committee notes that these categories of workers were not listed in the Government’s first report and accordingly cannot constitute exclusions for the purposes of Article 2. The Government is requested to provide in its next report copies of the special laws which apply to domestic workers and workers in the traditional sectors and to indicate how these categories of workers are provided the protection afforded by the Convention.
4. Article 7. Procedure prior to termination. The Government indicates that section 62 of the Labour Code requires that a hearing be held prior to termination, and the failure to do so will be considered by the courts to be a wrongful dismissal. The Committee also notes the decisions of the Supreme Court provided by the Government with its report. It recalls that workers may not be dismissed for reasons related to their conduct without being given an opportunity to defend themselves against the allegations made (unless the employer cannot reasonably be expected to provide this opportunity). The Committee requests the Government to continue providing it with court decisions applying this Article of the Convention.
5. Article 8. Examination by appeal bodies. The Government indicates that section 65 of the Labour Code guarantees dismissed workers recourse to a competent court irrespective of the reason for dismissal. It indicates that the courts that are competent in respect of termination for disciplinary reasons are also competent in respect of other grounds for dismissal. The Committee invites the Government to provide any available statistics with its next report on the activities of the courts in respect of the number of cases related to termination of employment, the outcome of these cases, the nature of the relief and the average time taken for a decision to be made.
6. Terminations for reasons of an economic, technological, structural or similar nature. The Committee notes with interest the Government’s statement that the procedure envisaged in section 66 of the Labour Code, under which employers habitually engaging ten or more employed persons may terminate all or part of these employed persons for economic reasons, does not affect the employment relationship as it exists in establishments engaging fewer than ten employed persons and does not in any way have the effect of allowing the obligations attached to such a relationship to be evaded. The Government indicates that in the event of collective dismissals in an establishment engaging fewer than ten employed persons, the competent courts nevertheless treats such cases as cases of individual dismissal. The Committee requests the Government to include information in its next report on the number of dismissals for economic or similar reasons during the period covered by the report.
The Committee notes the Government’s report received in August 2006, and particularly the adoption of Act No. 65-99 issuing the Labour Code, which entered into force on 8 June 2004. It requests the Government to provide in its next report any general information available on the manner in which the Convention is applied in practice, including recent court decisions (Parts IV and V of the report form). Please also provide detailed information on the following points.
1. Exclusions. The Committee notes the indications provided by the Government in its report received in August 2006 that it seeks to exclude from the Convention the categories of workers listed in section 3 of the Labour Code: workers in public enterprises, seafarers, professional journalists, film workers and janitors. The Committee however notes that it is not necessary for the Government to exclude those categories from the scope of the Convention because, under section 3 of the Labour Code, those categories of employees are still covered by the conditions of service applicable to them which may not in any event offer guarantees that are less advantageous than those contained in the Labour Code. The Committee also notes that household employees, persons employed in purely traditional sectors and those employed by certain professional categories of employers determined by regulation are excluded from the scope of the Labour Code (section 4 of the Code). The Committee recalls that Article 2 paragraph 6, of the Convention, requires a member State which has ratified the Convention to list the excluded categories of workers in its first report submitted under article 22 of the ILO Constitution. It recalls in this respect that the Government, in its first report on the application of the Convention received in September 1995, only listed two categories of workers: workers in public enterprises and seafarers. The Committee refers to paragraph 74 of its 1995 General Survey on protection against unfair dismissal, in which it stated that “Article 2, paragraph 6, allows governments to take account of future developments towards a reduction of the exclusions referred to in the first report, but it does not allow them subsequently to introduce new exceptions that were not in force at the time of the first report”. The Committee therefore requests the Government to indicate in its next report how the categories of workers listed in sections 3 and 4 of the Labour Code are provided with the protection afforded by the Convention.
2. Justification for termination. The Committee notes that section 35 of the Labour Code prohibits the termination of employment at the initiative of the employer without a valid reason. The reason must be connected to the worker’s capacity or conduct, or based on the operational requirements of the enterprise. The valid reason connected with the worker’s conduct is subject to sections 37 (disciplinary sanctions against an employee for a fault that is not serious) and 39 (termination for serious misconduct of the worker) of the Labour Code. The Committee recalls that in order to give proper effect to Article 4 of the Convention, it is necessary to distinguish between incapacity that is not the fault of the worker and incapacity that is. In the context of the Convention, no-fault incapacity may not be subject to disciplinary sanction. In order to assess the extent to which the reasons given in practice justifying dismissal under the Labour Code correspond with the valid reasons contemplated in Article 4 of the Convention, the Government is requested to submit court rulings and decisions establishing the case law on sections 35, 37 and 39 of the Labour Code.
3. Procedure prior to termination. The Committee notes that sections 62 to 64 of the Labour Code provide the procedure for termination of employment as a disciplinary measure. Section 62 requires that, before termination of employment, the employee is given the opportunity to put up a defence at a hearing conducted by the employer or his representative in the presence of a delegate of the employees or a trade union representative chosen by the employee. The Committee recalls though that Article 7 of the Convention requires that an employee be given an opportunity to challenge the allegations made if the termination is related to the worker’s conduct or performance. Even in the absence of any fault on his part, the worker may not be dismissed without being given an opportunity to challenge the allegations (unless the employer cannot reasonably be expected to provide this opportunity). The Committee requests the Government to indicate the measures adopted to ensure that a worker is given prior to termination an opportunity to challenge any allegations in circumstances where the employer seeks to dismiss the worker for incapacity or lack of performance through no fault of the worker (Article 7).
4. Examination by appeal bodies. The Committee notes that section 65 of the Labour Code permits an employee who has been terminated as a disciplinary measure to appeal to a competent tribunal. The Committee notes that no such right to appeal exists in the Labour Code in respect of terminations on grounds relating to no-fault incapacity or lack of performance or on grounds based on the operational requirements of the undertaking, establishment or service. The Committee recalls that Article 8 of the Convention guarantees a worker whose employment has been terminated the right to appeal against the termination to an impartial body such as a court, tribunal, arbitration committee or arbitrator. The Committee requests the Government to report on whether the tribunals empowered to hear appeals against disciplinary terminations are also empowered to hear appeals against terminations for reasons related to no-fault incapacity and lack of performance or based on the operational requirements of the undertaking, establishment or service.
5. Termination for serious fault. The Committee notes that the serious faults which may give rise to termination of employment are enumerated in section 39 of the Labour Code and it requests the Government to provide examples of recent judicial decisions which have upheld the finding of serious fault by the employed person (Article 11).
6. Terminations for reasons of an economic, technological, structural or similar nature. The Committee notes that, by virtue of section 66 of the Labour Code, only employers habitually engaging ten or more employed persons, who envisage the termination of all or some of their employees for economic reasons, are obliged to consult the representatives of the workers and notify the reasons for the terminations to the competent authority. In this respect, the Government may consider it useful to refer to the provisions of the Employment Relationship Recommendation, 2006 (No. 198), which contains guidance on overcoming difficulties in establishing whether or not an employment relationship exists in situations where the respective rights and obligations of the parties concerned are not clear, where there has been an attempt to disguise the employment relationship, or where inadequacies or limitations exist in the legal framework, or in its interpretation or application.
[The Government is asked to reply in detail to the present comments in 2008.]
The Committee notes the information contained in the Government’s report, in particular that the draft Labour Code has taken into account some of the previous comments, but that it is still under consideration.
Article 5(d) and (e) of the Convention. The Committee notes that political opinion, family responsibility, and maternity are not prohibited grounds for dismissal under the draft Labour Code, although such grounds are not permitted under the Convention. Please state how effect will be given to these provisions of the Convention.
The Committee trusts that the draft Labour Code will take into account all the comments of the Committee and will be adopted as soon as possible, and that a copy will be sent to the Office.
The Committee notes that the Government's report contains no reply to previous comments. It hopes that the next report will include full information on the matters raised in its previous direct request, which read as follows:
The Committee notes the Government's first report with interest. It notes in particular the Government's statement that the draft Labour Code, currently being prepared, should give effect to Article 5 (improper grounds for termination) and Article 13 (consultation of workers' representatives in the event of termination for economic reasons) of the Convention. It asks the Government to provide details on these matters in its next report together with information on the following points.
Article 7. The Committee notes that the draft Labour Code allows a worker to be heard by the employer who intends to dismiss him for serious misconduct. It asks the Government to indicate how effect is given to Article 7 in other instances of termination for reasons related to the worker's performance or conduct.
Article 11. Lastly, the Committee notes that section 5 of the Standard Conditions of Employment of 23 October 1948 provides that a worker may be dismissed without notice for serious misconduct. The definition of serious misconduct set out in section 6 of the Order of 1948 includes the worker's unsuitability for the job or inability to perform the work for which he was hired. The Committee asks the Government to indicate what is understood by "unsuitability of the worker", for instance by providing copies of court decisions, and to indicate in detail the instances in which a worker whose employment is to be terminated is entitled to notice or compensation in lieu thereof. The Committee would like to point out that in any sense the term "unsuitability for the job"or "inability to perform the work for which he was hired" cannot possibly be regarded as "serious misconduct" within the meaning of Article 11. The Committee asks the Government to consider amendment of section 6 of the Order of 1948 to bring it in line with the requirement of Article 11.
The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows: