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Montenegro - Conditions de fond du licenciement

Conditions de fond du licenciement (motifs autorisés et prohibés) - Montenegro - 2017    

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Obligation d'informer le travailleur des raisons du licenciement : Oui
  • Art. 143c(2) LL: The dismissal decision shall contain the grounds for termination of employment, an explanation and a note indicating available legal remedies.
    (See also art. 143b LL: prior to any dismissal based on disciplinary grounds, the employer shall warn in writing the employee about the existence of reasons that can justify the dismissal. He/she must and to give him/her at least five days to respond.)

    Note: following the 2011 amendments, the relevant article numbers have changed but not their content.

Motifs autorisés (licenciement justifié) : capacité du travailleur; conduite du travailleur; motifs économiques
  • New in 2011: The provision on valid grounds for dismissal has been substantially modified by the amendments to the LL adopted in December 2011.

    Art. 143(1) LL, as amended in December 2011 provides that "the employer may terminate the labour contract if there is a justified reason for such action" and gives an exhaustive list of 8 instances when termination of employment by the employer is authorized [instead of 16 under the 2008 LL] :
    "1. if an employee fails to meet the results of work defined by collective agreement, employer's act or contract of employment; in a period of not less than 30 days;
    2. if an employee fails to comply with obligations prescribed by the law, collective agreement and contract of employment, which shall comply with the law and the collective agreement;
    3. if an employee's behaviour is such that he/she cannot continue employment with the employer, in cases prescribed by the law and the collective agreement or employer's act, which shall comply with the law and the collective agreement;
    4. if an employee refuses to conclude an annex to the contract of employment referred to in Article 40 paragraph 1 items 1 and 2 of this Law [i.e: for the purpose of deployment to another adequate job, due to the needs of the process and organization of work - for the purpose of deployment to another position with the same employer, if the activity of the employer is of such nature that the work is performed in places outside the employer's headquarters, or employer's organization unit,];
    5. if an employee refuses to conclude an annex to the contract of employment referred to In Article 40 paragraph 1 Item 3 of this Law [i.e: regarding the definition of wages];
    6. if an employee abuses the right to leave for temporary inability to work;
    7. due to economic problems in operations;
    8. in case of technical and technological, or structural changes as a result of which an employee is no longer needed."

    [Prior to the amendments, art. 143 read as follows:
    The employer may terminate the labour contract "if there is a justified reason to do so regarding working capacity of the employee, his behaviour and needs of the employer"
    1) if the employee refuses to work in the job position that he is assigned to or refuses to fulfill duties at work referred to in the labor contract;
    2) if the employee does not comply with a labor discipline envisaged by the employer's act and the labor contract, i.e. if his behavior is such that he cannot continue working with the employer;
    3) with the expiration of the period for which the employment contract for a limited time is signed, i.e. with the expiration of the period of validity of the labor contract signed for a limited time;
    4) if the employee comes to work under the influence of alcohol or narcotics, drinks during work or uses narcotics;
    5) if the employee was unjustifiably absent from work for five consecutive business days, or seven business days with interruptions within the period of three months;
    6) if the employee fails to state his opinion on the offer or refuses the offer to conclude the annex to the labor contract, under Article 40, paragraph 1, items 1 and 2, within the deadline referred to in Article 41, paragraph 2 of this Law;
    7) if the employee fails to show adequate results during trial work;
    8) if the employee is provided with one of the rights based on redundancy under Article 93, paragraph 2, item 5 of this Law;
    9) if the employee refuses one of the rights that the employer offered him on the basis of the redundancy;
    10) when the severance pay is paid out to the employee on the basis of redundancy;
    11) if the employee fails to return to work within 30 days, under Article 76 paragraph 3 of this Law;
    12) if the employee gave false data regarding the performance of the activities that he concluded the labor contract for when starting to work, i.e. when entering employment, and during the employment;
    13) if a pecuniary fine is imposed on the employee for violation of duties at work two or more times within a period of one year;
    14) if the employee works for another employer under Article 58, paragraph 1 of this Law, without the consent of the employer where he is employed full time;
    15) if the employee contracts the activities within the scope of business activity performed by the employer to his own account or account of another person (unfair competition);
    16) and in other cases determined by the collective agreement."]

Motifs prohibés: état matrimonial; grossesse ; congé de matérnité; responsabilités familiales; avoir déposé une plainte contre l'employeur; maladie ou accident professionel temporaire; race; couleur; sexe; orientation sexuelle ; religion ; opinion politique ; origine sociale ; nationalité/origine nationale ; âge ; affiliation et activités syndicales ; handicap; statut financier ; langue; congé parental; dénoncer des violations; naissance; état de santé ; origine ethnique
  • Art. 143a LL, a new provision introduced in December 2011, provides a list of prohibited grounds for termination, as follows:
    1) Temporary absence from work due to illness, accident at work or occupational disease;
    2) Maternity or parental leave, absence from work for child care and absence form work due to special child care;
    3) membership in a political organization, trade union, distinction based on personal characteristics of the employee (gender, language, ethnicity, social status, religion, political or other beliefs or other personal characteristics of the employee)
    4) acting as a representative of employees, in accordance with the law;
    5) in case an employee addresses trade unions or competent authorities for protection of employment rights in accordance with the law and contract of employment;
    6) in case an employee addresses the competent public authorities for reasonable suspicion of corruption or filing a complaint of such suspicion in good faith;
    7) in case an employee addresses or point out to the employer or relevant public authorities environmental threat connected to the operations of the employer.

    See also the following provisions which were already included in the 2008 LL:
    - Art. 5 LL prohibits discrimination of job seekers and employed persons on the grounds of gender, birth, language, race, religion, skin colour, age, pregnancy, health condition, disability, nationality, marital status, family responsibilities, sexual orientation, political or other belief, social backgrounds, financial status, membership in political and trade union organization or any other personal feature.
    - Art. 7(1)5) LL specifies that such discrimination shall be prohibited with regards to termination of employment.
    See also art. 108 LL: prohibition of dismissal on the grounds of pregnancy or during maternity leave, absence for child care, parental leave... (see remarks under special protection).

    Therefore, what is new in 2011 is the introduction of a comprehensive provision on prohibited grounds for dismissal in addition to scattered provisions on discrimination or specific protection against dismissal in certain situations. In addition, compared to the grounds already prohibited in the 2008 LL, new grounds have been introduced : temporary absence from work due to illness, accident at work or occupational disease; parental leave, absence from work for child care , and recourse to competent authorities where the following issues are at stake (infringement of employment rights, corruption, environmental threats)

Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité; travailleurs avec des responsabilités familiales; travailleurs avec une invalidité consolidée; travailleurs handicapés
  • Art. 108 LL provides for protection due to pregnancy and child care:
    - It is prohibited to dismiss a female employee due to pregnancy and during maternity leave [minimum 38 days before childbirth and 45 days after, but allowed up to 365 days after childbirth] (art. 108(1) LL).
    - It is prohibited to terminate the employment of a the parent who works half time in order to take care of a child with severe development difficulties, a single parent of a child under seven years of age, or a child with severe disability. The law also specifies that they may not be declared redundant employees due to the introduction of technological, economic or restructuring changes [special child care leave](art. 108(1) and (2) LL)
    New in December 2011:
    The scope of the protection against dismissal has been extended. Art. 108(3) LL now prohibits dismissal during parental leave [minimum 45 days after childbirth may be up to 365 days] and absence from work due to child care.

    Art. 160(1) LL provides for specific protection of trade union representatives and in particular, states that they shall not be declared as redundant.
    New in December 2011: art. 143b(4) LL now provides for specific procedural requirements in the event of a disciplinary dismissal of a trade union member: prior warning notice must be communicated to the trade union of which the employee is a member, for the purpose of obtaining its opinion. The trade union must provide a statement with its opinion within 5 days.

    Art 94(3) LL provides for severance pay for workers suffering from disability (see under severance pay).