Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes with regret 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:

1. The Committee takes note of the Government’s first report on the application of the Convention received in June 2008. The Government refers to the Labour Code of 2 June 1961 and Ordinance No. 73/093 of 9 November 1973, establishing the procedures for reducing staff of state and semi-state bodies and private enterprises in the Central African Republic, giving effect to certain provisions of the Convention. Furthermore, the Government points out that judicial decisions have been handed down with respect to individual and collective terminations, but that there would be material difficulties in obtaining copies of these. It also points out that a new Labour Code had been submitted to the National Assembly. The Committee hopes that the questions raised in this direct request will be taken into account in the drafting of the new labour legislation, in order to ensure full application of the provisions of the Convention concerning invalid reasons for terminations (Article 5(c) and (d) of the Convention), the procedure to follow prior to termination (Article 7 of the Convention), the burden of proof (Article 9(2) of the Convention), the severance allowance (Article 12 of the Convention) and the information provided to workers’ representatives in the case of collective terminations (Article 13 of the Convention). It also hopes that the Government will be able to provide, in its next report, the required information on justification for termination (Article 4 of the Convention), compensation for termination (Article 10 of the Convention), definition of serious misconduct (Article 11 of the Convention) and collective terminations (Article 14 of the Convention), thereby allowing it to examine the manner in which the Convention is applied in practice. If necessary, the Government may wish to call upon the ILO to help it in the communication of collective agreements and relevant judicial decisions.

2. Exclusions of certain categories of workers. The Government points out that no category of workers is excluded from the scope of the Convention. However, the Committee notes that section 3 of the Labour Code excludes from its scope judges, public officials and soldiers. The Committee invites the Government to confirm whether the categories listed in section 3 of the Labour Code have been excluded from the scope of the Convention under Article 2(4) or (5) and to give reasons for that exclusion in accordance with Article 2(6).

3. Justification for termination. Article 4 of the Convention. According to the information provided in the Government’s report, all collective agreements in force acknowledge that a worker may not be dismissed without a “legally valid” reason. Furthermore, section 47 of the Labour Code guarantees protection against “dismissals carried out without legitimate reasons” being considered as “wrongful”. The Committee invites the Government to provide examples of collective agreements and court rulings creating a precedent in this area, in its next report.

4. Ban on terminations. Measures of reprisals. Article 5(c). In its report, the Government mentions that the draft Labour Code lists, among the invalid reasons for termination, the fact of having filed a complaint or participated in proceedings against an employer. The Committee hopes that the Government will take measures to ensure that the fact of having filed a complaint or participated in proceedings against an employer involving alleged violations of the legislation, or having had recourse to competent administrative authorities, do not constitute a valid reason for termination.

5. Invalid reasons for termination. Grounds of discrimination. The Government points out in its report that the draft Labour Code lists race, colour, sex and marital status as invalid grounds for termination of employment. The Committee refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and hopes that the Government will take measures to ensure that the worker’s family responsibilities, pregnancy religion, political opinion, national extraction or social origin do not constitute valid reasons for termination as stipulated under Article 5(d) of Convention No. 158.

6. Procedure prior to termination. The Committee refers to Article 7 of the Convention which provides that workers should have the opportunity to defend themselves against allegations made before being dismissed for reasons related to their conduct or performance unless the employer cannot reasonably be expected to provide this opportunity. The Government fails to comment on the requirements imposed by Article 7 in its report. The Committee notes that the 1961 Code does not appear to provide employees with the opportunity to defend themselves. The Committee requests the Government to inform on the existence of any measures giving effect to Article 7 of the Convention and if, there are no such measures, to inform on the steps taken to implement Article 7.

7. Entitlement to appeal to an impartial body. Time limit. The Committee notes that section 190 of the Labour Code provides for appeals against termination, after attempts at a friendly agreement have failed before the Labour Court. In accordance with section 1 of Ordinance No. 73/093, all employers are obliged to receive authorization from the labour inspector before any collective redundancies to cut jobs or reduce activity, or for any other reason resulting in a collective lay-off of workers. The Government’s report states that, if the labour inspector gives authorization for redundancies, the worker or trade union organization concerned has 30 days to appeal against this decision before bringing the matter to court. The Government is requested to provide examples of judicial decisions authorizing collective terminations against which an appeal has been lodged before a court (Article 8(2) of the Convention).

8. Article 9(2). Burden of proof. The Committee notes that section 47 of the Labour Code requires the courts to determine the causes and circumstances of the termination and requires the alleged grounds for dismissal to be specifically mentioned in the ruling. The Labour Code does not appear to address the requirements of Article 9(2) of the Convention, namely that the workers do not have to bear alone the burden of proving that the termination was not justified. The Committee requests the Government to inform it of any measures giving effect to Article 9(2) of the Convention and, if there are no such measures, to inform on any measures taken to implement this provision of the Convention.

9. Article 10. Compensation. The Committee notes that, in accordance with section 47 of the Labour Code, the worker may be awarded damages in the event of unjustified termination. The Committee invites the Government to provide copies of the rulings on how the courts have assessed the adequacy of the compensation.

10. Article 11. Period of notice. The Committee notes that, according to section 45 of the Labour Code, a worker may be dismissed without a period of notice in the event of serious misconduct. The Government is requested to provide examples of any ruling that defines “serious misconduct” in this context.

11. Article 12(1)(a). Severance allowance. According to the Government’s report, any dismissed worker is entitled, except in the case of serious misconduct, to a severance allowance referred to as a “dismissals allowance”. It is calculated according to the applicable collective agreement. The Committee invites the Government to indicate how it guarantees the application of this Article to workers who are not covered by collective agreements. It asks it to provide copies of collective agreements in force that regulate the payment of severance allowances, as well as examples of court decisions that applied the notion of serious misconduct in this context.

12. Article 13(1). Information and consultation of workers’ representatives. The Committee refers to Article 13(1) of the Convention which provides that, if terminations are envisaged for reasons of an economic, technological, structural or similar nature, the employer must provide in good time the relevant information to the workers’ representatives who must be consulted as early as possible before the planned date of termination. The Government is requested to indicate the measures taken to guarantee that consultations take place between the employer contemplating terminations for reasons of an economic, technological or structural nature and the representatives of workers concerned by this measure, specifying in particular how much time before the planned terminations they must provide the relevant information to the workers.

13. Article 14(1). Notification to the competent authority. The Government refers in its report to the provisions of Ordinance No. 73/093 of 9 November 1973, which provide that the employer, contemplating collective redundancies to cut jobs or reduce activity or for any other reason resulting in a collective lay-off of workers, must notify the competent authority. The Government is invited to provide examples of terminations for reasons of an economic, technological or structural nature, which did in fact receive prior authorization from the labour inspector and on what basis the labour inspector exercises a discretion.