Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Termination of Employment Convention, 1982 (No. 158) - Ethiopia (Ratification: 1991)

Other comments on C158

Observation

2001

Direct Request

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The Committee notes the Government’s brief replies to the points raised in the 2007 direct request received in February 2011. The Committee once again requests the Government to provide information on the manner in which the Convention is applied in practice, including relevant judicial decisions of labour courts involving important questions such as valid reasons for termination (Articles 4 and 5) and contracts terminated without the worker being afforded the opportunity of defence (Article 7). Please also provide available statistics on the number of terminations for economic or similar reasons (Parts IV and V of the report form).

Article 2(2) and (3) of the Convention. Workers engaged under contract of employment for definite period or piecework. The Government reiterates that Labour Proclamation No. 377/2003 provides adequate safeguards against recourse to contracts of employment for a specified period of time or for a specific task in order to avoid the protections afforded by the Convention. The Committee already noted sections 9 and 10 of the Labour Proclamation which provide that all employment contracts that are not listed in section 10(1) are deemed to be for an indefinite period. The Committee once again asks the Government to indicate how effect is given to Article 2(3) concerning recourse to contracts of employment for a specified period of time or a specified task, the aim of which is to avoid protection afforded by the Convention.

Article 2(4). Excluded categories of workers. As indicated in previous comments, section 3(2) of the Labour Proclamation, as amended by Proclamation No. 494/2006, excludes certain categories of workers from the application of the Convention as they are either covered by specialized legislation, such as the Federal Civil Servants Proclamation No. 515/2007 which applies to civil servants, or their status will be adequately addressed through regulations as stipulated in section 3(3) of the Proclamation. The Committee requests the Government to provide information on regulations or specialized legislation providing protection at least equivalent to that afforded under the Convention to the excluded categories of workers.

Articles 4 and 5. Valid reason for termination of employment. The Committee noted in its previous comments that sections 26(1), 27(1), 28(1) and (2) of the Labour Proclamation deal with valid reasons for termination of employment and that sections 14(1)(c), 26(2) and 87(5) deal with invalid reasons for dismissal. The Committee also notes section 67(1)(f) which deals with dismissal imposed as a rigorous penalty in some cases concerning a breach of discipline. It further notes section 81 of the Federal Civil Servants Proclamation which deals with termination of employment due to force majeure. In a judgment rendered by the Federal High Court dated 4 August 2006, file No. 46487, the Court decided that the termination of employment was unlawful as it was not based on grounds stated in the labour law. In this case, the employer believed, without sufficient evidence, that the worker worked for two employers simultaneously. The Committee asks the Government to provide information on the manner in which these provisions of the Labour Proclamation and the Federal Civil Servants Proclamation are applied in practice, including copies of labour court decisions.

Article 7. Procedure prior to termination of employment. In its 2006 report, the Government referred to a principle in the Labour Proclamation that an employee’s employment may not be terminated unless the employee’s conduct or performance is proven in court and that, if it is terminated earlier, the court may redress the breach. The Government reiterates in its last report that a worker whose employment is terminated for reasons relating to conduct or performance has the right of defence against the allegations made before the court. The Committee notes that section 80 of the Federal Civil Servants Proclamation provides that a civil servant’s employment may be terminated after a certain specified number of below satisfactory performance evaluations, however, the right to an opportunity to defend oneself before the termination seems not to be provided in the Proclamation. The Committee requests the Government to specify how the Labour Proclamation and the Federal Civil Servants Proclamation ensure the opportunity for workers to defend themselves before having their employment terminated.

Article 9(2). Burden of proof. The Government referred to section 138(1) of the Labour Proclamation which gives the courts jurisdiction to settle and determine dismissal and termination of employment disputes. In its last report, the Government indicates that the burden of proving the existence of a valid reason for the termination rests on the employer. In a judgment rendered by the Federal High Court dated 31 July 2006, file No. 48008, concerning a case of termination of employment, the Court referred to Article 9(2) of the Convention and decided in favour of the worker, indicating that the burden of proof falls on the employer and, in this specific case, the employer failed to provide evidence to show valid reasons for the termination of the contract of employment. The Committee would welcome receiving recent court cases involving section 138(1) of the Labour Proclamation which refer to the burden of proof.

Article 12. Severance allowance. The Committee noted in previous comments that a worker who has completed probation is entitled to get a severance pay from the employer only when his or her employment contract has been terminated for one of the reasons listed in section 39(1) of the Labour Proclamation, as amended by Proclamation No. 494/2006. The Committee recalls that according to Article 12(1), any worker whose employment has been terminated can benefit from a severance allowance or separation benefits or from benefits from unemployment insurance or assistance or other forms of social security, or from a combination of such allowances and benefits. The Committee would welcome receiving court cases which refer to the payment of a severance allowance.

Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Government referred to section 29(3) of the Labour Proclamation which provides that whenever a reduction of the workforce takes place, the employer, in consultation with the trade union or a representative, shall give priority to workers with skills and a higher rate of productivity. The Government mentions in its last report the Directive to determine the reduction of workers, 2010, which stipulates the conditions, procedures, and the mechanisms when proceeding with terminations, including the manner in which workers’ organizations or representatives are consulted and participate in the process. The Government further indicates that the 2010 Directive provides that the employer should notify the Ministry with regard to terminations for reasons of economic, technological, structural or similar nature. The Committee invites the Government to provide a copy of the Directive to determine the reduction of workers, 2010, and information on cases in which the Directive was applied in practice.

[The Government is asked to reply in detail to the present comments in 2013.]