Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

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.]