Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 2, paragraph 1, of the Convention. The Committee notes that in section 71(1)(b) of the Labour Code, employees over retirement age are precluded from claiming unfair dismissal except in respect of the invalid grounds listed in section 66(3). The Committee records that, subject to the specific categories listed in sub-articles (2) to (6), the Convention applies to all employed persons. The Committee requests the Government to advise it whether the provision remains in force and, if so, what steps it will take to ensure that this category of worker is afforded the full protection of the Convention.

Article 2, paragraphs 2 and 3. The Committee notes the Government’s indication that section 68(b) of the Labour Code provides protection against the use of contracts for a fixed term or a specified task in that the section makes the non-renewal of such a contract a reviewable dismissal if the “employee reasonably expected the employer to renew the contract on the same or similar terms and the employer did not renew it or offered it on less favourable terms”. Section 68(b) however does not refer to a reasonable expectation of renewal. A non-renewal is only a dismissal if the “contract provides for the possibility of renewal”. The Government is asked to clarify this difference. The Government further states that the claimants who have brought cases under this section have failed due to lack of proof. The Government is asked to provide the Committee with examples of such cases. The Committee notes the Government’s indication that probation may only be extended with the authorization of the labour commissioner which is only granted if sought by the employer on full proof of the employee’s performance. The Government also notes that in terms of section 71(1) of the Labour Code probationary employees are excluded from protection from unfair termination except in respect of a termination on the invalid grounds listed in section 66(3). It also notes that section 8(11) and (12) of the Labour Code in Gazette 5 of 2003, permits a probationary employee to make a claim for unfair dismissal in respect for any non-performance-related reason. The Government is asked to clarify the legal relationships between the Labour Code and the Code of Good Practice and to provide it with any judgements of court cases concerning the termination of probationary employees. The Committee asks the Government to clarify the meaning of section 68(b) of the Labour Code in respect of the renewal of fixed-term contracts and the legal relationship between the Labour Code and the Code of Good Practice in respect of probationary employees. It is also asked to provide any court decisions that may assist in clarifying the position of these two categories of worker in respect of the Convention.

Article 2, paragraphs 4 and 6. The Committee notes that in its reply the Government states that there are no provisions giving members of the army, the police, other disciplined forces and public officers the protections afforded by the Convention. It however states that public officers who have been unfairly dismissed may refer the cases to the High Court. The Committee requests the Government to indicate the basis upon which a case of unfair dismissal can be referred to the High Court and to provide it with any court judgements in that regard.