C158 - Termination of Employment Convention, 1982 (No. 158)
Convention
concerning Termination of Employment at the Initiative of the Employer (Entry
into force: 23 Nov 1985)
Adoption: Geneva, 68th ILC session (22 Jun 1982)
Preamble
The
General Conference of the International Labour Organisation,
Having
been convened at Geneva by the Governing Body of the International Labour
Office, and having met in its Sixty-eighth Session on 2 June 1982, and
Noting
the existing international standards contained in the Termination of Employment
Recommendation, 1963, and
Noting
that since the adoption of the Termination of Employment Recommendation, 1963,
significant developments have occurred in the law and practice of many member
States on the questions covered by that Recommendation, and
Considering
that these developments have made it appropriate to adopt new international
standards on the subject, particularly having regard to the serious problems in
this field resulting from the economic difficulties and technological changes
experienced in recent years in many countries,
Having
decided upon the adoption of certain proposals with regard to termination of
employment at the initiative of the employer, which is the fifth item on the
agenda of the session, and
Having
determined that these proposals shall take the form of an international
Convention;
adopts
this twenty-second day of June of the year one thousand nine hundred and
eighty-two the following Convention, which may be cited as the Termination of
Employment Convention, 1982:
PART
I. METHODS OF IMPLEMENTATION, SCOPE AND DEFINITIONS
Article
1
The
provisions of this Convention shall, in so far as they are not otherwise made
effective by means of collective agreements, arbitration awards or court
decisions or in such other manner as may be consistent with national practice,
be given effect by laws or regulations.
Article
2
- 1. This Convention applies to
all branches of economic activity and to all employed persons.
- 2. A Member may exclude the
following categories of employed persons from all or some of the
provisions of this Convention:
- (a) workers engaged under a
contract of employment for a specified period of time or a specified
task;
- (b) workers serving a period
of probation or a qualifying period of employment, determined in advance
and of reasonable duration;
- (c) workers engaged on a
casual basis for a short period.
- 3. Adequate safeguards shall be
provided against recourse to contracts of employment for a specified
period of time the aim of which is to avoid the protection resulting from
this Convention.
- 4. In so far as necessary,
measures may be taken by the competent authority or through the
appropriate machinery in a country, after consultation with the
organisations of employers and workers concerned, where such exist, to
exclude from the application of this Convention or certain provisions
thereof categories of employed persons whose terms and conditions of
employment are governed by special arrangements which as a whole provide
protection that is at least equivalent to the protection afforded under
the Convention.
- 5. In so far as necessary,
measures may be taken by the competent authority or through the
appropriate machinery in a country, after consultation with the
organisations of employers and workers concerned, where such exist, to
exclude from the application of this Convention or certain provisions
thereof other limited categories of employed persons in respect of which
special problems of a substantial nature arise in the light of the
particular conditions of employment of the workers concerned or the size
or nature of the undertaking that employs them.
- 6. Each Member which ratifies
this Convention shall list in the first report on the application of the
Convention submitted under Article 22 of the Constitution of the
International Labour Organisation any categories which may have been
excluded in pursuance of paragraphs 4 and 5 of this Article, giving the
reasons for such exclusion, and shall state in subsequent reports the
position of its law and practice regarding the categories excluded, and
the extent to which effect has been given or is proposed to be given to
the Convention in respect of such categories.
Article
3
For
the purpose of this Convention the terms termination and termination
of employment mean termination of employment at the initiative of the
employer.
PART
II. STANDARDS OF GENERAL APPLICATION
DIVISION
A. JUSTIFICATION FOR TERMINATION
Article
4
The
employment of a worker shall not be terminated unless there is a valid reason
for such termination connected with the capacity or conduct of the worker or
based on the operational requirements of the undertaking, establishment or
service.
Article
5
The
following, inter alia, shall not constitute valid reasons for termination:
- (a) union membership or
participation in union activities outside working hours or, with the
consent of the employer, within working hours;
- (b) seeking office as, or
acting or having acted in the capacity of, a workers' representative;
- (c) the filing of a complaint
or the participation in proceedings against an employer involving alleged
violation of laws or regulations or recourse to competent administrative
authorities;
- (d) race, colour, sex, marital
status, family responsibilities, pregnancy, religion, political opinion,
national extraction or social origin;
- (e) absence from work during
maternity leave.
Article
6
- 1. Temporary absence from work
because of illness or injury shall not constitute a valid reason for
termination.
- 2. The definition of what
constitutes temporary absence from work, the extent to which medical
certification shall be required and possible limitations to the
application of paragraph 1 of this Article shall be determined in
accordance with the methods of implementation referred to in Article 1 of
this Convention.
DIVISION
B. PROCEDURE PRIOR TO OR AT THE TIME OF TERMINATION
Article
7
The
employment of a worker shall not be terminated for reasons related to the
worker's conduct or performance before he is provided an opportunity to defend
himself against the allegations made, unless the employer cannot reasonably be
expected to provide this opportunity.
DIVISION
C. PROCEDURE OF APPEAL AGAINST TERMINATION
Article
8
- 1. A worker who considers that his
employment has been unjustifiably terminated shall be entitled to appeal
against that termination to an impartial body, such as a court, labour
tribunal, arbitration committee or arbitrator.
- 2. Where termination has been
authorised by a competent authority the application of paragraph 1 of this
Article may be varied according to national law and practice.
- 3. A worker may be deemed to
have waived his right to appeal against the termination of his employment
if he has not exercised that right within a reasonable period of time
after termination.
Article
9
- 1. The bodies referred to in
Article 8 of this Convention shall be empowered to examine the reasons
given for the termination and the other circumstances relating to the case
and to render a decision on whether the termination was justified.
- 2. In order for the worker not
to have to bear alone the burden of proving that the termination was not
justified, the methods of implementation referred to in Article 1 of this
Convention shall provide for one or the other or both of the following
possibilities:
- (a) the burden of proving the
existence of a valid reason for the termination as defined in Article 4
of this Convention shall rest on the employer;
- (b) the bodies referred to in
Article 8 of this Convention shall be empowered to reach a conclusion on
the reason for the termination having regard to the evidence provided by
the parties and according to procedures provided for by national law and
practice.
- 3. In cases of termination
stated to be for reasons based on the operational requirements of the
undertaking, establishment or service, the bodies referred to in Article 8
of this Convention shall be empowered to determine whether the termination
was indeed for these reasons, but the extent to which they shall also be
empowered to decide whether these reasons are sufficient to justify that
termination shall be determined by the methods of implementation referred
to in Article 1 of this Convention.
Article
10
If
the bodies referred to in Article 8 of this Convention find that termination is
unjustified and if they are not empowered or do not find it practicable, in
accordance with national law and practice, to declare the termination invalid
and/or order or propose reinstatement of the worker, they shall be empowered to
order payment of adequate compensation or such other relief as may be deemed
appropriate.
DIVISION
D. PERIOD OF NOTICE
Article
11
A
worker whose employment is to be terminated shall be entitled to a reasonable
period of notice or compensation in lieu thereof, unless he is guilty of
serious misconduct, that is, misconduct of such a nature that it would be
unreasonable to require the employer to continue his employment during the
notice period.
DIVISION
E. SEVERANCE ALLOWANCE AND OTHER INCOME PROTECTION
Article
12
- 1. A worker whose employment
has been terminated shall be entitled, in accordance with national law and
practice, to-
- (a) a severance allowance or
other separation benefits, the amount of which shall be based inter alia
on length of service and the level of wages, and paid directly by the
employer or by a fund constituted by employers' contributions; or
- (b) benefits from unemployment
insurance or assistance or other forms of social security, such as
old-age or invalidity benefits, under the normal conditions to which such
benefits are subject; or
- (c) a combination of such
allowance and benefits.
- 2. A worker who does not fulfil
the qualifying conditions for unemployment insurance or assistance under a
scheme of general scope need not be paid any allowance or benefit referred
to in paragraph 1, subparagraph (a), of this Article solely because he is
not receiving an unemployment benefit under paragraph 1, subparagraph (b).
- 3. Provision may be made by the
methods of implementation referred to in Article 1 of this Convention for
loss of entitlement to the allowance or benefits referred to in paragraph
1, subparagraph (a), of this Article in the event of termination for
serious misconduct.
PART
III. SUPPLEMENTARY PROVISIONS CONCERNING TERMINATIONS OF EMPLOYMENT FOR
ECONOMIC, TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS
DIVISION
A. CONSULTATION OF WORKERS' REPRESENTATIVES
Article
13
- 1. When the employer
contemplates terminations for reasons of an economic, technological,
structural or similar nature, the employer shall:
- (a) provide the workers'
representatives concerned in good time with relevant information
including the reasons for the terminations contemplated, the number and
categories of workers likely to be affected and the period over which the
terminations are intended to be carried out;
- (b) give, in accordance with
national law and practice, the workers' representatives concerned, as
early as possible, an opportunity for consultation on measures to be
taken to avert or to minimise the terminations and measures to mitigate
the adverse effects of any terminations on the workers concerned such as
finding alternative employment.
- 2. The applicability of
paragraph 1 of this Article may be limited by the methods of
implementation referred to in Article 1 of this Convention to cases in
which the number of workers whose termination of employment is
contemplated is at least a specified number or percentage of the
workforce.
- 3. For the purposes of this
Article the term the workers' representatives concerned means
the workers' representatives recognised as such by national law or
practice, in conformity with the Workers' Representatives Convention,
1971.
DIVISION
B. NOTIFICATION TO THE COMPETENT AUTHORITY
Article
14
- 1. When the employer
contemplates terminations for reasons of an economic, technological,
structural or similar nature, he shall notify, in accordance with national
law and practice, the competent authority thereof as early as possible,
giving relevant information, including a written statement of the reasons
for the terminations, the number and categories of workers likely to be
affected and the period over which the terminations are intended to be
carried out.
- 2. National laws or regulations
may limit the applicability of paragraph 1 of this Article to cases in
which the number of workers whose termination of employment is
contemplated is at least a specified number or percentage of the
workforce.
- 3. The employer shall notify
the competent authority of the terminations referred to in paragraph 1 of
this Article a minimum period of time before carrying out the
terminations, such period to be specified by national laws or regulations.
PART
IV. FINAL PROVISIONS
Article
15
The
formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article
16
- 1. This Convention shall be
binding only upon those Members of the International Labour Organisation
whose ratifications have been registered with the Director-General.
- 2. It shall come into force
twelve months after the date on which the ratifications of two Members
have been registered with the Director-General.
- 3. Thereafter, this Convention
shall come into force for any Member twelve months after the date on which
its ratification has been registered.
Article
17
- 1. A Member which has ratified
this Convention may denounce it after the expiration of ten years from the
date on which the Convention first comes into force, by an act
communicated to the Director-General of the International Labour Office
for registration. Such denunciation shall not take effect until one year
after the date on which it is registered.
- 2. Each Member which has
ratified this Convention and which does not, within the year following the
expiration of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter,
may denounce this Convention at the expiration of each period of ten years
under the terms provided for in this Article.
Article
18
- 1. The Director-General of the
International Labour Office shall notify all Members of the International
Labour Organisation of the registration of all ratifications and
denunciations communicated to him by the Members of the Organisation.
- 2. When notifying the Members
of the Organisation of the registration of the second ratification
communicated to him, the Director-General shall draw the attention of the
Members of the Organisation to the date upon which the Convention will
come into force.
Article
19
The
Director-General of the International Labour Office shall communicate to the
Secretary-General of the United Nations for registration in accordance with
article 102 of the Charter of the United Nations full particulars of all
ratifications and acts of denunciation registered by him in accordance with the
provisions of the preceding Articles.
Article
20
At
such times as it may consider necessary the Governing Body of the International
Labour Office shall present to the General Conference a report on the working
of this Convention and shall examine the desirability of placing on the agenda
of the Conference the question of its revision in whole or in part.
Article
21
- 1. Should the Conference adopt
a new Convention revising this Convention in whole or in part, then,
unless the new Convention otherwise provides-
- (a) the ratification by a
Member of the new revising Convention shall ipso jure involve the
immediate denunciation of this Convention, notwithstanding the provisions
of Article 17 above, if and when the new revising Convention shall have
come into force;
- (b) as from the date when the
new revising Convention comes into force this Convention shall cease to
be open to ratification by the Members.
- 2. This Convention shall in any
case remain in force in its actual form and content for those Members
which have ratified it but have not ratified the revising Convention.
Article
22
The
English and French versions of the text of this Convention are equally authoritative.
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