L'OIT est une institution spécialisée des Nations-Unies
ILO-fr-strap
Go to the home page
Site map | Contact us English | español
> GOUVERNANCE - page d'accueil > EPLex: une base de données sur les législations de protection de l'emploi

Conditions de fond du licenciement


Afghanistan - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Art. 23(4) LC.


Motifs autorisés (licenciement justifié): motifs économiques; conduite du travailleur; capacité du travailleur
Remarks:
  • The following are considered to be valid grounds for terminations (art. 23 LC):
    1) Agreement of the both parties,
    2) Expiry of the term of the contract,
    (3) Retirement,
    (4) Death,
    (5) Disability and incapability that hinder the performance of work,
    (6) Cessation of work for more than six months,
    (7) Dissolution of the organization or reduction in the number of workers,
    (8) Final conviction to imprisonment,
    (9) Repeated breach of work after disciplinary warnings.
    (10) Refusal by the worker to work after a reassignment to his/her previous position,
    (11) Unsatisfactory probationary period.

    In addition art. 101 LC regulates disciplinary dismissal which is allowed in the event of absence from work for 20 consecutive days without a good cause and in the event of repeated violations of disciplinary rules.


Motifs prohibés: congé de matérnité
Remarks:
  • - No prohibited ground for dismissals listed in the LC.
    - Similarly, the LC does not contain any list of prohibited grounds for discrimination. Art. 9 LC prohibits any discrimination in recruiting a person, paying the salaries and the allowances to the staff, making a profession, the right to education and providing the social protection.
    - Art. 125 LC prohibits the refusal to employ a women or wages reduction on the grounds of pregnancy or nursing their children but is silent as to dismissal on the same grounds.
    - Art. 147(3) LC provides for the right of employees to participate in trade unions but is silent as to discrimination on the grounds of trade union activities.


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité
Remarks:
  • Art. 28 LC prohibits any transfer or termination of employment during any paid leave period unless the undertaking has been dissolved. This means that dismissal is not permitted during maternity leave (90 days).
    However this protection does not cover the entire pregnancy period.


Australie - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • The FWA does not establish as such a general obligation to provide reasons before any dismissal. However, this obligation is implied since notification to the employee is one of the criteria to be considered by the Fair Work Commission (national workplace relations tribunal) when assessing whether the dismissal was harsh, unjust or unreasonable (= test for unfair dismissal).
    S387 provides that "In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take account:
    (a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
    (b) whether the person was notified of that reason ; and
    (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
    (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
    (e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal; and
    (f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
    (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
    (h) any other matters that FWC considers relevant."

    Note that the harsh, unjust or unreasonable test does not apply to small business employers (less than 15 employees).
    It is sufficient for those employers to comply with the Small Business Fair Dismissal Code:
    For dismissals other than summary dismissals, "the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
    The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
    The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response.
    Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations."


Motifs autorisés (licenciement justifié): tout motif légitime
Remarks:
  • See s385 to s389 FWA that set up the elements that make up an unfair dismissal.
    Consequently, a fair dismissal means:
    1) a dismissal which was not harsh, unjust or unreasonable; and
    2) a dismissal which was consistent with the Small Business Fair Dismissal Code; and
    3) the dismissal which was a case of genuine redundancy
    .

    1) s387 sets out the criteria to be considered by the competent body (Fair Work Commission) when assessing whether the dismissal was harsh, unjust or unreasonable.
    This includes whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees) in addition to other factors related to procedural fairness.

    2) Dismissal consistent with the Small Business Fair Dismissal Code (applicable to employers with less than 15 employees).
    This code regulates summary and other dismissals.
    - With regards to summary dismissal, the code stipulates that: "It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal".
    - For other dismissals, the code provides for an obligation to give the employee a reason why he or she is at risk of being dismissed. "The reason must be a valid reason based on the employee's conduct or capacity to do the job". In addition, for the dismissal to be fair, the employer must observe procedural requirements (prior warnings, opportunity to respond and giving a chance to rectify the problem).
    (see s388 FWA and Small Business Fair Dismissal Code)

    3) Fair dismissal by means of genuine redundancy (s389 FWA):
    There is a case of genuine redundancy if:
    "(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise (= fair reason); and
    (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy (= procedural fairness)"


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; âge; affiliation et activités syndicales; handicap; congé parental; congé d'adoption
Remarks:
  • Regarding the above list of prohibited grounds:
    - "Family responsibilities" should be understood as covering "Family or carer's responsibilities";
    - "Temporary work injury or illness" should be understood as covering "Temporary absence from work due to work injury or illness";
    - "Social origin" should be understood as covering "National extraction or social origin"; and
    - "Disabilities" should be understood as covering "Physical or mental disabilities".

    Part 3-1 of the FWA contains a set of general protections against discriminatory or wrongful treatment which includes but is not limited to protection against dismissal on certain grounds. See in particular:
    - s340 FWA that prohibits adverse action (which includes dismissal) against another person in relation to the exercise of workplace rights (as defined in s341 FWA);
    - s346 FWA that prohibits adverse action (which includes dismissal) against another person in relation to industrial activities;
    - s351 FWA on discrimination;
    - s352 FWA on prohibition of dismissal on the grounds of temporary absence from work because of illness or injury.
    Employees who believe to have been dismissed in contravention with the "general protections provisions" of the Act, can apply to Fair Work Commission to deal with the dismissal.

    The Act also contains a special provision on unlawful termination: s772 FWA makes it unlawful for an employer to terminate an employee's employment for certain reasons. However, employees are barred by s723 from lodging a complaint of unlawful termination if they are entitled to make a general protections court application in relation to the conduct. Therefore, unlawful termination applications are only available to workers employed by Western Australian corporations whose main activity is not trading or financial or Western Australian sole traders, partnerships, or other unincorporated entities.


Travailleurs bénéficiant d'une protection particulière:
Remarks:
  • No statutory provisions providing for special protection found in the legislation reviewed.


Bangladesh - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Non
Remarks:
  • The LA distinguishes between several ways of termination of employment by the employer namely: 'dismissal' (for misconduct), 'discharge' (for incapacity), 'retrenchment' (for economic reasons) and 'termination' (without cause). Justification is only required in the first three instances (secs. 22, 23, 24, 26 LA)
    Therefore in cases other than misconduct, physical or mental incapacity, or economic dismissal, the employer is not required to provide any justification.


Motifs autorisés (licenciement justifié): aucun
Remarks:
  • The LA distinguishes between several ways of termination of employment by the employer namely:
    - 'dismissal' : when the worker is found guilty of a misconduct or convicted for criminal offence: secs. 23 and 24 LA)
    - 'discharge from service' for reasons of physical
    or mental incapacity or continued ill-health certified by a registered medical practitioner (sec. 22 LA),
    - 'retrenchment' for economic reasons (sec. 21 LA) and
    - 'termination' without cause (sec. 26 LA).
    Therefore in cases other than misconduct, physical or mental incapacity, or economic reasons, the employer can lawfully terminate any employment contract without having to justify such termination by a valid reason provided that he/she complies with the statutory notice and severance pay requirements (sec. 26 LA).


Motifs prohibés: affiliation et activités syndicales
Remarks:
  • No general list of prohibited grounds for discrimination of or dismissal in the LA.
    However, sec. 195(d) prohibits the dismissal, discharge, removal from employment or the threat to undertake such actions by reason that the worker is or proposes to become, or seeks to persuade any other person to become a member or officer of a trade union, or participates in the promotion, formation or activities of a trade union.
    Note also that sec. 228 LA prohibits the employer to discharge, dismiss or terminate the employment of a worker while proceedings connected to an industrial disputes are pending (before the labour jurisdictions or an arbitrator) except with the permission of that body and for reasons of misconduct not connected with such dispute.
    Furthermore, any discharge, dismissal or punishment for misconduct of a trade union officer while such proceedings are pending is prohibited, except with prior authorization from the Labour Court (sec. 228(2) LA).


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs
Remarks:
  • - No real special protection for pregnant women or women on maternity leave against termination of employment. However, sec. 50 LA "Restriction on termination of employment of a woman in certain cases" provides that: "If any notice or order of discharge, dismissal, removal or termination of employment is given by an employer to a woman within a period of six month before and eight weeks after her delivery and such notice or order is given without sufficient cause, she will not be deprived of any maternity benefit to which she would have become entitled under this chapter."


Cambodge - 2018    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Sec. 74 LC.


Motifs autorisés (licenciement justifié): tout motif légitime
Remarks:
  • Sec. 74 LC: no dismissal can take place without a valid reason relating to the worker's aptitude or behaviour, based on the requirements of the operation of the enterprise, establishment or group.
    Sec. 83 LC on serious offences entailing summary dismissal :
    1. Stealing, misappropriation, embezzlement;
    2. Fraudulent acts committed at the time of signing (presentation of false documentation) or during employment (sabotage, refusal to comply with the terms of the employment contract, divulging
    professional confidentiality).
    3. Serious infractions of disciplinary, safety, and health regulations.
    4. Threat, abusive language or assault against the employer or other workers.
    5. Inciting other workers to commit serious offenses.
    6. Political propaganda, activities or demonstrations in the establishment.


Motifs prohibés: congé de matérnité; race; couleur; sexe; religion; opinion politique; origine sociale; nationalité/origine nationale; affiliation et activités syndicales; participation à une grève légale; naissance
Remarks:
  • Sec. 12 LC (non-discrimination on the grounds of race, colour, sex, creed, religion, political opinion, birth, social origin, membership of workers’ union or the exercise of union activities); sec. 279 LC (union affiliation or activities); sec. 182 LC (maternity leave); sec. 333 LC (participation in a strike).


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité
Remarks:
  • Sec. 293-295 LC
    The dismissal of a shop steward or a candidate for shop steward can take place only after authorization from the Labor Inspector. Protection extended to former shop steward who relinquished their position for less than six months (sec. 282 LC).

    Sec. 67 Trade Union Law
    All workers who stand as candidates for elected leadership [and] management positions shall enjoy the same protection from victimization and dismissal as shop stewards. Such protection begins 45 (forty-five) days prior to the election and ends 45 (forty-five) days after the election if he or she is not elected. In order to enjoy such protection, the union shall notify the employer of the candidacy and submit a copy to the Ministry in charge of Labor, by any Unofficial Translation Page 25 of 39 certified means. The employer shall only be required to comply with these provisions once for each election of union leadership.

    Sec. 182 LC: The employer is prohibited from laying off women during their maternity leave or at a date when the end of the notice period would fall during the maternity leave". This protection only applies during maternity leave and not the entire pregnancy.


Chine - 2017    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Non
Remarks:
  • The ECL does not establish any obligation on the part of the employer to state the reasons for dismissal to the employee. However, prior to dismissing a worker, the employer shall notify the labour union of the reasons: art. 43 ECL.


Motifs autorisés (licenciement justifié): conduite du travailleur; capacité du travailleur; motifs économiques
Remarks:
  • Art. 40 ECL (ordinary dismissal): list of reasons related to the worker's conduct, worker's capacity, economic reasons.
    See also Art. 39 ECL (summary dismissal).

    See also Art. 18 and 19 of Implementing Regulations of the PRC Employment Contracts Law.


Motifs prohibés: état matrimonial; grossesse; congé de matérnité; maladie ou accident professionel temporaire; race; sexe; religion; origine sociale; nationalité/origine nationale; âge; affiliation et activités syndicales; handicap; origine ethnique
Remarks:
  • - Art. 42 ECL prohibits dismissal of :
    (1) a worker who is engaged in operations exposing him to occupational disease hazards and has not undergone a pre-departure occupational health check-up, or is suspected of having contracted an occupational disease and is being diagnosed or under medical observation;
    (2) a worker who has been confirmed as having lost or partially lost his capacity to work due to an occupational disease contracted or a work-related injury sustained with the Employer (3) a worker who has contracted an illness or sustained an injury, and the set period of medical care therefore has not expired;
    (4) a female employee in her pregnancy, confinement or nursing period;
    (5) a worker who has been working for the Employer continuously for not less than 15 years and is less than 5 years away from his legal retirement age;
    (6) a worker who finds himself in other circumstances stipulated in laws or administrative statutes.
    See also art. 26 of the Law of the People¿s Republic of China on the Protection of Rights and Interests of Women which prohibits the dismissal of any female employee on the grounds of marriage, pregnancy, maternity leave or nursing unless the employee requests the termination. Dismissal on the ground of pregnancy is also prohibited in the art. 4 of the Regulations Concerning the Labor Protection of Female Staff and Workers (1988).
    - Dismissal based on trade union activities is prohibited: art. 52 (1) of the Trade Union Law of the People's Republic of China, 1992 as amended by Order of the President of the People's Republic of China, No 62, 27 October 2001 and last amended on 27 August, 2009.

    - Ethnic origin, race, sex, and religious belief and disability are not listed as unlawful grounds for dismissal in the ECL. However, they are listed as prohibited grounds of discrimination in employment in article 3 of the Employment Promotion Law [EPL]
    (see also art. 12 of the Labour Law; art. 27 EPL on gender equality; art. 29 EPL and 38 of the PRC Law on the protection of disabled persons, 1990 as last amended on 24 April, 2008).
    - Art. 31 EPL: Rural workers who move to urban areas to seek employment shall enjoy equal labour rights to urban workers and shall not be subjected to discriminatory restrictions.


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité; travailleurs avec une invalidité confirmée; travailleurs seniors/à la veille de la retraite; travailleurs en congé temporaire suite à une maladie professionnelle ou un accident du travail
Remarks:
  • Under art. 42 ECL, it is prohibited to dismiss:
    (1) a worker who is engaged in operations exposing him to occupational disease hazards and has not undergone a pre-departure occupational health check-up, or is suspected of having contracted an occupational disease and is being diagnosed or under medical observation;
    (2) a worker who has been confirmed as having lost or partially lost his capacity to work due to an occupational disease contracted or a work-related injury sustained with the Employer
    (3) a worker who has contracted an illness or sustained an injury, and the set period of medical care therefore has not expired;
    (4) a female employee in her pregnancy, confinement or nursing period;
    (5) a worker who has been working for the Employer continuously for not less than 15 years and is less than 5 years away from his legal retirement age.

    For worker's representatives, see art. 52 (2) of the Trade Union Law :
    If the labour contract of a worker or staff member is terminated due to his participation in trade union activities, the administrative department for labour shall order that the victim be reinstated, his remuneration payable during the period of the termination of the labour contract be made up, or that a compensation two times the amount of his annual income be given.


Corée, République de - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Article 27 LSA (Written Notification of Reasons for Dismissal): "(1) If an employer intends to dismiss a worker, the employer shall notify the worker of reasons for dismissal and the date of such dismissal in writing. (2) The dismissal of a worker shall take effect only after the written notification is given to the worker pursuant to paragraph (1)."


Motifs autorisés (licenciement justifié): tout motif légitime
Remarks:
  • Art. 23 (1) LSA: "No employer shall dismiss, lay off (..) a worker without justifiable reasons".
    Art. 24 (1) LSA (dismissal for managerial reasons).


Motifs prohibés: état matrimonial; grossesse; congé de matérnité; responsabilités familiales; maladie ou accident professionel temporaire; sexe; religion; origine sociale; nationalité/origine nationale; âge; affiliation et activités syndicales; dénonciation/ alerte
Remarks:
  • - Art. 6 LSA: general prohibition of discrimination against workers on the grounds of gender, nationality, religion of social status.
    - Art. 23 (2) LSA: Prohibition to dismiss any worker during a period of temporary interruption of work for medical treatment of an occupational injury or disease and within 30 days thereafter, and any female worker on maternity leave.
    - On prohibition of discriminatory dismissals on the grounds of sex, marriage, family status, pregnancy or childbirth, see art. 2 and 11 of EEA.
    - Art. 81 TULRAA: prohibition of dismissal of or discrimination against a worker on the grounds that the worker has joined or intended to join a trade union, intended to establish a trade union, or performed a lawful act for the operation of a trade union.
    - See also on prohibition of age discrimination, including with regards to dismissal, see art. 44 of the Act on age discrimination prohibition in employment and aged employment Promotion , No 4487, 31 December 1991, as amended.


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité
Remarks:
  • Art. 23 (2) LSA: No employer shall dismiss any worker during a period of temporary interruption of work for medical treatment of an occupational injury or disease and within 30 days thereafter, and any female worker during a period of temporary interruption of work before and after childbirth and within 30 days thereafter. This does not apply in the event of payment of the statutory compensation following an occupational injury or disease or in the event of business closure.


Inde - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Sec. 13 MSO and Sec. 25F IDA.
    NOTE: The Model Standing Orders (MSO) are a default not a mandatory rule i.e. the employer may adopt them as provided but employers are permitted to derogate/amend them on a case by case basis.


Motifs autorisés (licenciement justifié): conduite du travailleur; motifs économiques
Remarks:
  • Sec. 150B IDA reads as following:

    "1*[(oo)"retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
    (a) voluntary retirement of the workman; or
    (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
    2*[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
    (c) termination of the service of a workman on the ground of continued ill-health;] "


    Sec. 17 MSO provides for an exhaustive list of the instances when dismissal for the reasons of misconduct is justified:

    (a) Theft, fraud, or dishonesty in connection with the employer's business or property.
    (b) Taking or giving of bribes or an illegal gratification whatsoever in connection with the employer's
    business or his own interests.
    (c) Willful insubordination or disobedience, whether alone or in conjunction with another or others, or of
    any lawful or reasonable order of a superior. The order of the superior should normally be in writing.
    (d) Habitual late attendance and habitual absence without leave or without sufficient cause.
    (e) Drunkenness, fighting or riotous, disorderly or indecent behaviors while on duty at the place of work.
    (f) Habitual neglect of work.
    (g) Habitual indiscipline.
    (h) Smoking underground within the area in places where it is prohibited.
    (i) Causing willful damage to work in progress or to property of the employer.
    (j) Sleeping on duty.
    (k) Malingering or showing down work.
    (l) Acceptance of gifts from subordinate employees.
    (m) Conviction in any Court of Law for any criminal offence involving moral turpitude.
    (n) Continuous absence without permission and without satisfactory cause
    for more than ten days.
    (o) Giving false information regarding one's name, age, father's name,
    qualification or previous service at the time of the employment.
    (p) Leaving work without permission or sufficient reason.
    (q) Any breach of the Mines Act, 1952, or any other Act or any rules,
    regulations or bye-laws there under, or of any Standing Orders.
    (r) Threatening, abusing or assaulting any superior or co-worker.
    (s) Habitual money-lending.
    (t) Preaching of or inciting to violence.
    (u) Abetment of or attempt at abetment of any of the above acts of
    misconduct.
    (v) Going on illegal strike either singly or with other workers with out giving 14 day's previous notice.
    (w) Disclosing to any unauthorized person of any confidential information in regard to the working or
    process of the establishment which may come into the possession of the workman in the course of his work.
    (x) Refusal to accepted any charge-sheet or order or notice communicated in writing.
    (y) Failure or refusal to wear or use any protective equipment given by the employers


Motifs prohibés: grossesse; congé de matérnité; affiliation et activités syndicales
Remarks:
  • The IDA (Fifth Schedule) on Unfair Labour Practices - these include prohibition of dismissal based on: trade union activity or membership and taking part in a strike which is not deemed to be illegal according to the IDA.
    Further, the Fifth Schedule of the IDA states that the Unfair Labour Practice shall be the following:
    "5. To discharge or dismiss workmen:
    (a) by way of victimisation;
    (b) not in good faith, but in the colourable exercise of the employer's rights;
    (c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;
    (d) for patently false reasons;
    (e) on untrue or trumped up allegations of absence without leave;
    (f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;
    (g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment."

    Sec. 12 of the Maternity Benefit Act: Dismissal during absence or pregnancy

    Art. 16.2 of the Constitution of India on Equality of opportunity in matters of public employment, states that: "No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State". NOTE: This applies only in relation to public employment.


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité
Remarks:
  • Schedule Five of the IDA
    Art. 12 of the Maternity Benefit Act


Indonésie - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • No express obligation to state the reasons for dismissal. However, according to art. 151 (2) MA: the employer must negotiate directly with the worker (who is not unionized) or, the trade union he belongs to about his intention to carry out the dismissal.


Motifs autorisés (licenciement justifié): conduite du travailleur; motifs économiques; capacité du travailleur
Remarks:
  • See:
    * Art. 168 MA: absence from work for more than 5 days without justified reason,
    * Art. 161 MA: violation of the provisions specified in the work agreement, the company regulations or the collective agreement,
    * Art. 160 (3) MA: inability to work for reasons related to legal criminal proceeding,
    * Art. 163, 164 and 165 MA: economic reasons (change of status of the enterprise, closing down due to continuous losses, bankruptcy).
    NOTE: Art. 158 MA (grave wrongdoings) was declared null and void by Constitutional Court Decision No.012/PUU-I/2003.


Motifs prohibés: état matrimonial; grossesse; congé de matérnité; maladie ou accident professionel temporaire; race; couleur; sexe; religion; opinion politique; affiliation et activités syndicales; handicap; autres; dénonciation/ alerte; prendre légalement ses congés; remplir des obligations civiques; origine ethnique
Remarks:
  • Art. 153 MA
    On whistleblowing see also: Law No. 13 of 2006 concerning protection of witness and victim


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité; travailleurs avec une invalidité confirmée
Remarks:
  • See: art. 153 c), g), j) and 172 MA.


Iran, République islamique d' - 2010    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • No statutory obligation to state the reasons for dismissal.
    However, according to sec. 27 LC, no disciplinary dismissal can take before prior written warnings have been given to the employee to correct his/her behaviour.


Motifs autorisés (licenciement justifié): conduite du travailleur; motifs économiques; capacité du travailleur
Remarks:
  • Where a worker is negligent in discharging his or her duties or if, after written warnings, he or she continues to violate the disciplinary rules of the workplace, the employer shall, provided that the Islamic Council is in agreement, pay the worker a sum equal to his or her last monthly wage for each year of service, and to terminate his or her employment contract (sec. 27 LC).
    In addition, according to sec. 21 LC (as amended) "the employment agreement may be terminated in any of the following cases:
    a) Death of worker.
    b) Retirement of worker.
    c) Total disability of worker.
    d) Expiry of duration of definite employment agreements and their non-renewal explicitly or implicitly.
    e) Completion of work in the contracts for specific task.
    f) Resignation of worker.
    g) Reduced production and structural changes imposed by economic, social and cultural developments calling for vast technological changes as provided in Article 9 of the Law Facilitating the Renovation of Industries.
    Economic reasons as authorized valid grounds for termination of employment result from an amendment to the 1990 Labour Code (not included in the electronic version of the text provided under "references"). Source of information: "LIS 643 and 644, Day 25 & Bahman 2, 1387 ( 14-21/01/2009)", by Pars Associates, Attorneys-at-Law, published on the "Blog of Guillot-Pars associates" (http://avocats.fr/space/guillot-pars), available at: http://avocats.fr/space/guillot-pars/content/lis-643et-644-des-25-day-et-2-bahman-1387---14-21-01-2009_C4307EB5-3EC5-42B5-8693-C392E41F5282.


Motifs prohibés: race; couleur; sexe; langue; origine ethnique
Remarks:
  • See sec. 6 LC on the general prohibition of discrimination: "Iranians, whatever their tribe or ethnic group, enjoy the same rights; skin colour, race, language and the like do not constitute any privilege or distinction; all individuals, whether men or women, are entitled to the same protection of the law"


Travailleurs bénéficiant d'une protection particulière:
Remarks:
  • No information found in the legislation reviewed.


Japon - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Upon request of the dismissed worker, the employer shall issue a certificate indicating the reason for dismissal in writing and without delay, i.e. between the advance notice and the last day of employment (sec. 22, LSA). There is an administrative circular issued in 2003 on a model certificate form.


Motifs autorisés (licenciement justifié): tout motif légitime
Remarks:
  • Statutorily-established grounds:
    1) objectively reasonable grounds, not considered to be appropriate in general social terms;
    2) inclusion in work rules matters pertaining to termination of employment including grounds for dismissal and, if disciplinary measures are set up, matters pertaining to their nature and limits and submission of these work rules to local labour inspectorates (in case of employers with more than 10 workers).
    Grounds established through case law: worker’s misconduct, worker’s capacity, economic reasons, requirement of union shop agreement.

    Indefinite contracts:
    Under the Civil Code, both parties can terminate an employment contract of indefinite duration at will, provided that two weeks' notice is given (section 627(1), CC).
    However, the freedom of the employer to dismiss an employee has been restricted by the Japanese courts based on the doctrine of abusive dismissal. The prohibition of abusive dismissal can now be found under section 16 of LCA.
    Sec 16 of LCA: If a dismissal lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, it is treated as an abuse of rights and is invalid.

    Note: There is no statutory provision regarding what constitutes “objectively reasonable grounds” in terms of sec. 16 of LCA. However, rational reasons which may justify an ordinary dismissal under the doctrine of abusive dismissal --that have been established as a case law principle over the years-- can be divided into four types: (i) misconduct, (ii) incompetence, (iii) economic reasons, and (iv) requirement of union shop agreement.
    Sec 89 of LSA: Employers who continuously employ 10 or more workers shall draw up work rules covering, among other, matters pertaining to termination of employment, including grounds for dismissal and if disciplinary measures are set up, matters pertaining to their nature and limits, and shall submit those work rules to the relevant government agency (local labour inspectorate).

    Note: Although there are no listed statutory grounds for both disciplinary and ordinary dismissal, these grounds are generally included in collective agreements and/or in the work rules (Shugyo-Kisoku). The causes of disciplinary action are therefore limited to those explicitly specified in the shugyo-kisoku and a disciplinary dismissal without any specified cause is void.
    Similarly, many collective agreements stipulate the causes and procedures for an ordinary dismissal as well as a disciplinary dismissal. The courts have held that a dismissal which is not based on the reasons specified in the collective agreement is void. Most courts have also held that a dismissal which has not gone through consultation procedures provided under collective bargaining agreements is void (See Hanami,T; Komiya, F; Yamakawa, R.: 'Japan', in R. Blanpain (ed.): International encyclopaedia for labour law and industrial relations (The Hague, Kluwer Law International, 2015).

    Regarding work rules and collective agreements, see sec. 90: In drawing up or changing the work rules, the employer shall ask the opinion of either a labor union organized by a majority of the workers at the workplace concerned (in cases where such labour union exists), or a person representing a majority of the workers (in cases where such union does not exist).
    See also sec. 92: The rules of employment shall not infringe any laws and regulations or any collective agreement applicable to the workplace concerned.
    Sec. 17(1) of LCA provides that an employer may not dismiss a worker until the expiration of the term of such labour contract, unless there are unavoidable grounds.

    Section 19 of LCA: if, by the expiration date of the contract term of a fixed-term labour contract which falls under any of the following items, a worker applies for a renewal of the said fixed-term labour contract, or if a worker applies for the conclusion of another fixed-term labour contract without delay after the said contract term expires, and the employer's refusal to accept the said application lacks objectively reasonable grounds and is not found to be appropriate in general societal terms, it is deemed that the employer accepts the said application with the same labour conditions as the contents of the prior fixed-term labour contract:
    i) the said fixed-term labour contract has been repeatedly renewed in the past, and it is found that terminating the said fixed-term labour contract by not renewing it when the contract term expires is, in general social terms, equivalent to terminating a labour contract without a fixed term by expressing the intention to fire a worker who has concluded the said labour contract without a fixed term;
    ii) it is found that there are reasonable grounds upon which the said Worker expects the said fixed-term labour contract to be renewed when the said fixed-term labour contract expires.


Motifs prohibés: état matrimonial; grossesse; congé de matérnité; avoir déposé une plainte contre l'employeur; maladie ou accident professionel temporaire; race; sexe; religion; origine sociale; nationalité/origine nationale; affiliation et activités syndicales; handicap; autres; dénonciation/ alerte
Remarks:
  • Sec. 14 of the Japanese Constitution prohibits discrimination in political, economic or social relations on the grounds of race, creed, sex, social status or family origin.

    More specifically, sec. 3 of LSA prohibits discriminatory treatment with respect to wages, working hours or other working conditions on the grounds of the nationality, creed or social status of any worker. Although political opinions is not listed as a prohibited ground in sec. 3 of LSA, it has been held that the term "creed" includes both political and religious beliefs(1). "Nationality" is also generally interpreted to include the concept of race(2).
    *******
    ((1) see Tadashi A. Hanami, Fumito Komiya, Yamakawa, R: 'Japan', in R. Blanpain (ed.): International encyclopaedia for labour law and industrial relations (The Hague, Kluwer Law International, 2015), § 252, p. 147).
    (2) Ibid,, citing the Hitachi Seisakujo case, The Yokohama District Court, 1974, HJ, No. 744, p. 29.
    *******

    Section 19(1) of LSA: Employers shall not dismiss a worker
    during a period of absence from work for medical treatment with respect to injuries or illnesses suffered in the course of employment, nor within 30 days thereafter, and shall not dismiss any woman during the period of absence from work before and after childbirth in accordance with section 65 nor 30 days thereafter. If an employee is dismissed during the above-mentioned periods, such dismissal will be void. However, this shall not apply in the event that the employer pays compensation for discontinuance in accordance with section 81, nor when the continuance of the business has become impossible due to natural disaster or other unavoidable reasons, subject to approval of the relevant government agency (section 19(2)).

    Section 104 of LSA: In the event that a violation of this Act or of an ordinance issued pursuant to this Act exists at a workplace, a worker may report such fact to the relevant government agency or to a labour standards inspector. Employers shall not dismiss a worker or shall not give a worker other disadvantageous treatment by reason of such worker having made a report set forth in the preceding paragraph.

    Section 6 of Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (EEOA), as amended in 2019, provides that employers shall not discriminate against workers on the basis of sex, with regard to dismissal and renewal of the labour contract See also secs 9(2)(3)(4) for prohibition of dismissal on the grounds of marriage, by reason of pregnancy, childbirth or for requesting absence from work, having taken absence from work of the same act, or by other reasons relating to pregnancy and childbirth. Sec 9(4) also provides that dismissal of women workers who are pregnant or in the first year after childbirth shall be void. However, this shall not apply in the event that the employers prove that dismissals are not by reasons prescribed in the preceding paragraph.

    Section 7 of the Trade Unions Act (1949, as amended in 2018) prohibits dismissal based on trade union activities and membership. The employer shall not commit the acts of unfair labour practice, including discharging a worker by reason of such worker's being a member of a labour union, having tried to join or organize a labour union, or having performed justifiable acts of a labour union; or making it a condition of employment that the worker shall not join or shall withdraw from a labour union.

    Section 35 of the Act on Promoting Employment of Persons with Disabilities of 1960, as amended in 2013, prohibits unfair discriminatory treatment of disabled persons with respect to determination of wages, training and the use of welfare facilities, and other matters. Under the guidelines established based on this Act, the following dismissals are prohibited: a) dismissing workers with disabilities by reasons of disabilities; b) putting unfavourable conditions only on persons with disabilities when setting conditions for dismissals; and c) prioritizing those with disabilities among employees who meet the conditions for dismissals.

    Act on Childcare Leave, Caregiver Leave, and Other Measures for the Welfare of Workers Caring for Children to Other Family Members prohibits dismissal of a worker making an application for, and being on childcare leave, caregiver leave (sec. 10), time off for sick/injured childcare or caregivers (sec. 16) Such prohibition of dismissal is also applicable to a worker who takes care of a family member in a care-requiring condition (sec. 16-9). Section 52-4(2): Employers must not dismiss or otherwise treat a worker disadvantageously due to said worker having asked for the assistance in the resolution of a dispute, advice, guidance or recommendations regarding the dispute; or made an application for administrative mediation under section 52-5.

    Part-time and Fixed-term Workers Act, as amended in 2018, prohibits dismissal or other unfavourable treatment of a PT-FTC worker for the having requested information regarding their treatments, in accordance with section 14(1) and (2) which oblige employers to explain to PT-FTC workers about their treatments (upon recruitment, and also when the worker requests information on the difference of treatment compared to regular workers; including on the difference from regular workers and reasons for it) (Section 14(3)). The Act also prohibits dismissal or other unfavourable treatment of a PT-FTC worker who has requested assistance from the Directors of Prefectural Labour Bureaux in the resolution of a dispute through advice, guidance or recommendations, or through mediation (sections 24 and 25).
    * The 2018 amendment to the Part-time Workers Act (the tile will change to Part-time and Fixed-term Workers Act) will enter into force on 1 April 2020, except that for small and medium-sized enterprises on 1 April 2021.

    Act on Promoting the Resolution of Individual Labour Disputes prohibits dismissals or other unfavourable treatment of a worker who has requested assistance from the Director of the Prefectural Labour Bureau in the resolution of an individual labour dispute through advice or guidance, or through conciliation (sections 4(3) and 5(2)).

    Whistle-blower Protection Act (2004) provides for the nullity of dismissal of a whistle-blower (section 3).

    Act on Comprehensive Promotion of Labour Policies, as amended in 2019, prohibits dismissals or other unfavourable treatment of a worker (section 30-2 (2)) who has consulted with the employer concerning power harassment (section 30-2(2)).


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité; travailleurs ayant une longue ancienneté; travailleurs handicapés; travailleurs en congé temporaire suite à une maladie professionnelle ou un accident du travail
Remarks:
  • see above


Malaisie - 2018    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Non
Remarks:
  • No statutory obligation.
    However sec. 10(2) EA states that every written contract of service should include a clause setting out the manner in which the contract concluded may be terminated by either party.
    Sec. 20(1) of the Industrial Relations Act provides that "where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; (...)"


Motifs autorisés (licenciement justifié): aucun
Remarks:
  • Sec. 12 (1) EA: termination by either party at any time provided that the notice requirements are observed: no ground for dismissals required in the laws reviewed. This does not result in a total freedom to terminate the contract: it must be understood in light of the existence of prohibited grounds.

    The EA authorizes termination without notice in the following cases:
    Sec. 13 (2) EA: termination by either party without notice in the event of any wilful breach of contract.
    Sec. 14 (1) EA: summary dismissal on the grounds of misconduct.
    Sec. 15 (2) EA: termination of the contract of an employee who has been continuously absent from work without reasonable excuse.
    The 2012 amendments to the EA have introduced a new part on Sexual harassment. According to the new amendments, the employer is required to inquire into a complaint of sexual harassment he/she has received, and to take disciplinary action against the employee concerned if he/she has been found guilty, including dismissing the employee without notice (Sec. 81(c) EA).


Motifs prohibés: grossesse; congé de matérnité; affiliation et activités syndicales
Remarks:
  • * Trade union activities: sec 5 (1) (d) and 59 (1) IRA.

    *Maternity leave and pregnancy: Section 37 (4) has been inserted in the EA and it states that dismissing an employee during maternity leave constitutes an offence. Unlike the previous Section 40 (3) EA (which now has been deleted), sec. 37 (4) of the amended EA provides that the prohibition of dismissal during maternity leave does not apply to termination on the grounds of the closure of the employer's business.
    Constitutes also an offence the dismissal of a female employee who remains absent from work after the expiration of the protection period as a result of illness arising out of her pregnancy or confinement (sec. 42 (1) EA).
    - Prior to the 2012 amendments the provisions on maternity leave were applicable to female employees depending on their wages. As of April 2012, a new Section 44A has been introduced in the EA, and it states that maternity leave entitlements are now extended to all female employees, irrespective of their wage.


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité; nationaux
Remarks:
  • *Maternity leave and pregnancy: Section 37 (4) has been inserted in the EA in 2012 and it states that dismissing an employee during maternity leave constitutes an offence (former section 40 (3) EA). Unlike the previous Section 40 (3) EA (which now has been deleted), sec. 37 (4) of the amended EA provides that the prohibition of dismissal during maternity leave does not apply to termination on the grounds of the closure of the employer's business.
    Prior to the 2012 amendments the provisions on maternity leave were applicable to female employees depending on their wages. As of April 2012, a new Section 44A has been introduced in the EA, and it states that maternity leave entitlements are now extended to all female employees, irrespective of their wage.
    Constitutes also an offence the dismissal of a female employee who remains absent from work after the expiration of the protection period as a result of illness arising out of her pregnancy or confinement (sec. 42 (1) EA).

    Special protection for local/national employees:
    Sec. 60M EA provides that "no employer shall terminate the contract of service of a local employee for the purpose of employing a foreign employee."
    Sec. 60N EA provides that "where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee."


Mongolie - 2017    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Non
Remarks:
  • No express obligation to indicate the reasons for dismissals. However, this might be inferred from the fact that the law provides a limited list of valid reasons for dismissing an employee (art. 40 LC)


Motifs autorisés (licenciement justifié): conduite du travailleur; capacité du travailleur; motifs économiques
Remarks:
  • The LC provides for a list a valid reasons justifying termination at the initiative of the employer, as follows (art. 40.1 LC):
    - dissolution of a branch or a unit of the undertaking, reduction of the number of employees, elimination of a position within the company;
    - failure to meet the job requirements due to the lack of professional qualifications or skill, or health reasons;
    - the employee has reached the age of 60 and is eligible to receive pension;
    - repeated breaches of the disciplinary rules or serious breaches which automatically entail termination of employment according to the provisions of the labour contract;
    - an employee in charge of assets and money has wrongfully acted or failed to act and as a result of which he/she has lost the trust of the employer;
    - employee is elected or appointed to perform another salaried work;
    - occurrence of other grounds set forth in the individual contract.

    In addition, an employee can be dismissed for the following reasons (art. 41 LC):
    - the employer, after an evaluation, that the employee did not fulfil the results of the work to be performed under the contract without a valid reason, or did not do satisfactory work;
    - the employee has entered into a simultaneous employment agreement or contract with another employer;
    - the employer has transferred his or her right of ownership to another person permanently;
    - it is proven that the employee has spent inefficiently or wasted the assets which were transferred to the employee under the individual contract or that the employee has exceeded his/her authority granted by the employer.


Motifs prohibés: grossesse; responsabilités familiales; race; sexe; religion; opinion politique; origine sociale; nationalité/origine nationale; affiliation et activités syndicales
Remarks:
  • Art. 7 LC prohibits discrimination in labour relations based nationality, race, sex, social origin or status, wealth, religion, or ideology.
    See also art. 100 LC which prohibits the dismissal of pregnant women and mothers with children under the age of 3 except in the event of liquidation of the business or in the event of serious misconduct (repeated breach of disciplinary rules or serious breach of the employment contract and loss of trust in an employee responsible for assets or money due to an act or omission). This protection also applies to a single father with a child under the age of 3.
    See also, art. 6 of the Law of Trade Union Rights.


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité; travailleurs avec des responsabilités familiales
Remarks:
  • - Art. 100 LC prohibits the dismissal of pregnant women and mothers with children under the age of 3 except in the event of liquidation of the business or in the event of serious misconduct (repeated breach of disciplinary rules or serious breach of the employment contract and loss of trust in an employee responsible for assets or money due to an act or omission). This protection also applies to a single father with a child under the age of 3.
    - In addition, the law prohibits the employer from dismissing or otherwise punish elected trade union representatives or elected non-union representatives who participate in a negotiation but who have not been relieved from their primary duties without obtaining the permission to do so from a competent authority. This protection applies to the entire negotiation process and until 1 year after negotiations have been completed (art. 12.8 LC).


Nouvelle-Zélande - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Any dismissed employee has the right to request a written statement indicating the reasons for the dismissal, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later. The employer shall provide such statement within 14 days after the request (art. 120 ERA).


Motifs autorisés (licenciement justifié): tout motif légitime
Remarks:
  • The ERA provides for a remedy to any employee who has been "unjustifiably dismissed" (see sec. 103 and 123 ERA).

    NEW: The Employment Relations Amendment Act 2010 (No. 125) which entered into force on April 1, 2011 modified the provision on 'the test of justification' for dismissal, which now reads as follows:
    103A Test of justification
    "(1) For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).
    (2) The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
    (3) In applying the test in subsection (2), the Authority or the court must consider:
    (a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
    (b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
    (c) whether the employer gave the employee a reasonable opportunity to respond to the employer's concerns before dismissing or taking action against the employee; and
    (d) whether the employer genuinely considered the employee's explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
    (4) In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.
    (5) The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were:
    (a) minor; and
    (b) did not result in the employee being treated unfairly."

    [Prior to the 2010 amendment, sec. 103A read as follows: "the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred."

    Case-law has established that a dismissal will not be considered unjustifiable if 1) there was a substantive reason (= good cause) for the dismissal and 2) the dismissal was carried out in a manner that is procedurally fair.
    The substantive reasons that may justify a dismissal are normally restricted to:
    * redundancy for genuine commercial reasons;
    * reasons connected to the employee's lack of capacity for the work or performance on the job; or
    * serious misconduct by the employee.




Motifs prohibés: état matrimonial; grossesse; congé de matérnité; responsabilités familiales; avoir déposé une plainte contre l'employeur; race; couleur; sexe; orientation sexuelle; religion; opinion politique; nationalité/origine nationale; âge; affiliation et activités syndicales; handicap; congé parental; participation à une grève légale; soulever des préoccupations de santé et sécurité au travail; origine ethnique
Remarks:
  • See sec. 104 ERA prohibiting discrimination in employment which includes dismissal:

    * on the prohibited grounds listed in sec. 105 ERA (sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, sexual orientation). Discrimination on such grounds is also prohibited under the Human Rights Act, 1993;

    * on the grounds of involvement in the activities of a union. The statutory definition of involvement union activity includes trade union membership and also a number of grounds such as participation in a lawful strike, filing a complaint or participation in proceedings against an employer, submitting a personal grievance against an employer, taking an employment relations education leave;(sec. 107 ERA)

    * on grounds of pregnancy and of a woman's state of health during pregnancy, and on grounds that a male or female employee intends to take parental leave or to assume the care of a child with a view of adoption. Dismissal of employees is also prohibited during parental leave and during 26 weeks thereafter. The dismissal of a pregnant employee is permitted if her state of health is materially affected by causes which are not related to pregnancy (sec. 49 of the Parental Leave and Employment Protection Act 1987);

    * Another prohibited ground is listed in sec. 110A (1) (a), (2) and (6), in connection with sec. 89 of the Health and Safety at Work Act (2015), which prohibits the dismissal of a worker, who acts as, has been, or proposes to be a safety representative or a member of a health and safety committee or of a worker, who raises a health and safety issue or is taking, has taken, encourages requests or organizes to take to seek compliance by any person with a duty under the Health and Safety at Work Act.

    Furthermore, Sec. 110A (1) (a) and (2) and sec. 89, 83, 84 Health and Safety at Work Act prohibit the dismissal of an employee, based on the employee's refusal to perform work likely to cause serious harm, or the refusal to perform work, which has been declared unsafe by a safety representative


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité; travailleurs avec des responsabilités familiales
Remarks:
  • As already stated, dismissal is prohibited on grounds of pregnancy and of a woman's state of health during pregnancy, and on grounds that a male or female employee intends to take parental leave or to assume the care of a child with a view of adoption. However, the employer is allowed to dismiss an employee for a substantial reason which is not related to the above-mentioned grounds.

    There is a special protection against dismissal of a male or a female employee during parental leave and during 26 weeks thereafter: it is prohibited for the employer to dismiss them. However, this prohibition is not absolute: the dismissal will be lawful if the employer proves that he/she terminated the employee's employment on account of a redundancy situation of such nature that there was no prospect of the employer being able to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's parental leave.
    (See sec. 49-52 of the Parental Leave and Employment Protection Act 1987)


Philippines - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Art. 292 b) LC: The employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of a representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labour and Employment.


Motifs autorisés (licenciement justifié): conduite du travailleur; motifs économiques; capacité du travailleur
Remarks:
  • • Regular employment: the employee has "the right to security of tenure" (art. 13 (3) of the Constitution and art. 294 LC). This means that an employee can only be dismissed for a just cause or an authorized cause and after the observance of the procedure laid down by the law (Omnibus Implementing Rules, Rule XIV, sec. 1)
    - Just causes are blameworthy acts on the part of the employee such as serious misconduct, willful disobedience of the lawful orders of his employer or representative in connection with his work, gross and habitual neglect of duties, fraud or willful breach of trust reposed in him by his employer or duly authorized representative, commission of a crime of offense by the employee against the person of this employer or any immediate member of his family or his duly authorized representatives; and other analogous causes (art. 297, LC).
    - Authorized causes are of two types: economic reasons and disease (art. 298 and 299 LC).
    *Economic reasons cover "installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking".
    *Disease cover situation where an "employee has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees".


Motifs prohibés: état matrimonial; grossesse; congé de matérnité; avoir déposé une plainte contre l'employeur; âge; affiliation et activités syndicales; handicap; statut VIH
Remarks:
  • Art. 133 LC (sexual discrimination)
    Art. 134 LC (stipulation against marriage)
    Art. 135 LC (prohibited acts: 1) discharging any woman employed by any employer for the purpose of preventing her from enjoying any of the benefits provided under the LC; 2) discharging such woman on account of her pregnancy or while on leave or in confinement due to her pregnancy; c) discharging or refusing the admission of such woman upon returning to her work for fear that she may again be pregnant )
    Art. 157 (same termination of employment protection for night workers): A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health; Art. 158 (prohibition of dismissal of a woman night worker except for just or authorized causes under the LC that are not connected with pregnancy, childbirth and childcare responsibilities).
    Art. 257 and Art. 259a), b) e) f) (anti-union discrimination and unfair labour practices; Art. 259(f) (dismissal, discharge and discrimination against an employee for having given or being about to give testimony under LC)
    Art. 118 (retaliatory measures: unlawful discharge of or discrimination against any employee who has filed any complaint or instituted any proceeding or has testified or is about to testify in proceedings)
    Art. 147 (unjust termination of termination of services by householders): if the period of household service is fixed, neither the employer nor the house helper may terminate the contract before the expiration of the term.
    Sec 5(6) and (7) of the 2016 Anti-age Discrimination in Employment Act and Sec. 4(6) and (7) of its implementing rules and regulations (prohibition of discrimination in employment on account of age: forcible lay off of an employee or worker because of old age or imposition of early retirement on the basis of such employee’s or worker’s age.
    Sec. 35 of the Philippine AIDS Prevention and Control Act of 1998 (No. 8504) (termination from work on the sole basis, of actual, perceived or suspected HIV status of an individual is prohibited)

    Sec. 32 g) of the Republic Act No. 7277 providing Magna Carta for Disabled Persons (prohibition of dismissal and termination of services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity: Provided, however, That the employer first sought to provide reasonable accommodations for disabled persons.


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité
Remarks:
  • Art. 135 (2) LC: It is prohibited to dismiss a woman while on leave or in confinement due to her pregnancy.



Singapour - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Non
Remarks:
  • The EA does not require the employer to provide the reasons for termination with notice: Sec. 10 (1) EA provides that either party may at any time give to the other party notice of his intention to terminate the contract.

    In addition, the EA does not expressly stipulate any obligation to provide the reasons when dismissing without notice (on the grounds of misconduct: sec. 14 EA), for continuous absence from work (sec. 13 (2)), or willful breach of a condition of the contract (sec. 11 (2) EA).


Motifs autorisés (licenciement justifié): aucun
Remarks:
  • - No valid grounds are listed for termination with notice.
    According to sec. 10 (1) EA, either party to a contract of employment may at any time give to the other party notice of his/her intention to terminate the contract of employment.
    This does not result in a total freedom to terminate the contract: it must be understood in light of the existence of prohibited grounds.

    For summary dismissal, specific grounds are listed:
    See sec. 13 (2) EA (summary dismissal for unjustified absence from work) and sec. 14 EA (summary dismissal for misconduct).
    Sec. 14 (2) EA provides that dismissal on the grounds of misconduct shall be based on a just cause or excuse.

    Economic reasons: not listed as such as a valid ground for dismissal. They are mentioned in two provisions related to benefits arising from "dismissal on the grounds of redundancy or by reason of any reorganization of the employer's profession, business, trade or work": see sec. 45 EA (payment of retrenchment benefit) and 84A EA (maternity and right to benefit in case of dismissal for economic reasons).


Motifs prohibés: grossesse; congé de matérnité; âge; affiliation et activités syndicales
Remarks:
  • * Age: sec. 4 (2) of Retirement Age Act 1993 (No. 14 of 1993) as amended by Act No. 49 of 1998 stipulates that "no employer shall dismiss on the ground of age any employee who is below 60 years of age or the prescribed retirement age".
    * Pregnancy and maternity leave: sec. 81, 84 and 84 A EA.
    * Trade union activities: sec. 82 of the Industrial Relations Act (chap. 136) of 1960 as subsequently amended.


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité
Remarks:
  • See sec. 81, 84 and 84A EA.


Notes / Remarques
Under the Employment Act, either party to a contract of employment may at any time give to the other party notice of his/her intention to terminate the contract of employment (sec. 10 (1), EA).

In addition, summary dismissal (without notice) by the employer is possible when:
- the employee willfully breaches a condition of the employment contract (sec. 11 (2), EA);
- the employee is continuously absent from work, without leave or reasonable excuse, for more than two days (sec. 13 (2), EA); or
- the employee is found, after due inquiry, to be guilty of misconduct (sec. 14, EA).

Sri Lanka - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Non
Remarks:
  • The TEWA does not expressly require the employer to inform the employees of the reasons for dismissal except for disciplinary dismissal (art. 2(5) TEWA)
    However, any dismissal of a worker covered by the TEWA which is not a disciplinary dismissal cannot take place without
    * the prior consent in writing of the worker; or
    * the prior written approval of the Commissioner (art. 2(1) TEWA).
    It might be that the employer shall be requested to inform the Commissioner of the reasons for dismissal when requesting approval. Sec. 13 provides that the Commissioner might direct the employer to furnish any information or explanation.
    Note also that the employee shall also be afforded the opportunity to be heard during the approval process.


Motifs autorisés (licenciement justifié): aucun
Remarks:
  • Except for the reference to "termination by reason of punishment imposed by way of disciplinary action" (sec. 2(4) TEWA), the TEWA does not specify any valid grounds for dismissal.
    The employer cannot dismiss an employee other than for disciplinary reasons without:
    * the prior consent in writing of the worker; or
    * the prior written approval of the Commissioner which exercises an absolute discretion in granting or refusing approval (art. 2(1) TEWA).


    The IDA defines retrenchment as termination by an employer of the services of a worker or workers on the ground that they are in excess of the number of workers required by such employer to carry on his/her industry (sec. 48 IDA)


Motifs prohibés: grossesse; congé de matérnité; avoir déposé une plainte contre l'employeur; race; sexe; religion; origine sociale; affiliation et activités syndicales; langue; naissance
Remarks:
  • See sec. 32A IDA on unfair labour practices:
    - dismissal by reason of trade union membership and activities (sec. 32A b))
    - dismissal of any workman or office-bearer of a trade union -
    (i) for any statement made before a tribunal or person in authority; or
    (ii) for any statement regarding acts or omissions of the employer relating to the terms and conditions of employment, of the members of such trade union made by such workman or office-bearer, in pursuance of an industrial dispute for the purpose of securing redress or amelioration of working conditions of such members" (sec. 32A b))

    * Sec. 40 IDA makes it an offence to dismiss a worker because he/she has become entitled to the benefit of any collective agreement, award or order (sec. 40(1)(k), IDA), or because the worker takes part in any proceedings against the employer, either as a witness or party (secs. 40(1)(j) and (p), IDA).

    * In addition, under the Maternity Benefits Ordinance (MBO), the employer shall not dismiss a women during maternity leave nor can he or she dismiss a women by reason only of
    her pregnancy or confinement or of any illness resulting from her pregnancy or confinement. (sec. 10 and 10A MBO)

    * There is no legislation governing non-discrimination in employment in Sri Lanka. However, art. 12(2) of the Constitution provides that "No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds"

    Note: Sri Lanka ratified the ILO Discrimination (Employment and Occupation) Convention (No. 111) in 1998.


Travailleurs bénéficiant d'une protection particulière: femmes enceintes ou en congé de maternité
Remarks:
  • Sec. 10 MBO: "When a woman worker absents herself from work in accordance with the provisions of this Ordinance (= maternity leave), it shall not be lawful for her employer to give her notice of dismissal during such absence or on such a day that the notice will expire during such absence."
    No specific protection for pregnant women and trade union members other than the prohibition to dismiss them only for reasons of pregnancy or trade union membership or activities (see prohibited grounds).


Thaïlande - 2019    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Non
Remarks:
  • No general obligation to inform the employee of the grounds of dismissal except in the event of an economic dismissal (art. 121 LPA) and of a summary dismissal for misconduct (art. 119 LPA, as amended by LPA-No2 of 2008 (art. 18))


Motifs autorisés (licenciement justifié): aucun
Remarks:
  • Valid grounds (justified dismissal): none but if there is no valid ground stipulated in the law, the employees may be entitled to receive severance pay, payment in lieu of notice or compensation for unfair dismissal

    - Either party may terminate an employment contract of indefinite duration provided that notice requirements (or pay in lieu of notice) are complied with (art. 17 LPA, as amended by LPA-No2 of 2008 (art. 8)) and art. 17/1 LPA, as amended by LPA-No7 of 2019).
    - In addition, art. 121 LPA allows the employer to terminate the an employee due to the restructuring of the work unit, the production process, or the distribution or provision of services, resulting from the introduction or change of machinery or technology thus making it necessary to reduce the number of employees. In such cases, specific notifications requirements apply (see below under "Procedural requirements for collective dismissals for economic reasons")
    - Lastly, the law authorizes disciplinary dismissals without notice. According to art. 583 CC, an employer may dismiss an employee who wilfully disobeys or habitually neglects the lawful commands of his or her employer; absents himself or herself from service; is guilty of gross misconduct; or otherwise acts in a manner incompatible with the due and faithful discharge of his or her duties.
    See also Art. 119 LPA, as amended by LPA-No2 of 2008 (art. 18)) which provides that severance pay is not due an employee whose dismissal arises because he or she:
    * has been dishonest on duty;
    * has deliberately committed a criminal offence against the employer; * has intentionally caused damage to the employer;
    * has violated working rules or lawful orders from the employer;
    * has been absent for three consecutive working days without justification;
    * has caused serious damage to the employer due to negligence; or
    * has been sentenced to imprisonment


Motifs prohibés: grossesse; avoir déposé une plainte contre l'employeur; affiliation et activités syndicales
Remarks:
  • - The LRA prohibits as an unfair practice the termination of employment by the employer (art. 121 LRA):
    * on the ground that the employee is a member of the trade union;
    * of certain persons (listed below) carrying out functions of the labour relations machinery for certain acts related to the fulfilment of their duties; and
    * on the ground that the employees or the labour union are about to undertake such acts.
    The persons specifically referred to are employees, employees' representatives, committee members of the labour union or of the labour federation. The specified acts are calling a rally, filing a petition, submitting a claim, filing a lawsuit or negotiating it, appearing as a witness before or producing evidence to competent officials under the law on labour protection, the Registrar, labour dispute conciliators, labour dispute arbitrators, labour relations committee members, or the labour court.
    - On the prohibition of termination of employment on the ground of pregnancy, see art. 43 LPA.


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs
Remarks:
  • - The employer cannot, except with the approval of the Labour Court, terminate employment of, or reduce the wages of, or punish a member of an employees' committee (art. 52 LRA). Such committees are set up by employees in establishments employing at least 50 employees (art. 45 LRA).
    - It is generally unlawful for an employer to terminate the employment or transfer the duties of the employees, their representatives, the committee members, subcommittee members, or members of the labour union, or committee members or subcommittee members of the labour federation, who are involved in the presentation, negotiation or reconciliation of a request to renegotiate an agreement on conditions of employment. Termination or transfer is, however, lawful if the persons concerned dishonestly perform their duties or wilfully commit a criminal offence against the employer; wilfully cause damage to the employer; neglect work for three consecutive working days without a suitable reason; or violate the rules, regulations or lawful orders of the employer, provided the employer has issued a warning in writing. The written warning is not required in severe cases (art. 31 LRA). The same protection applies to the same employees while an agreement on conditions of employment or equivalent award is in effect, with one additional category of permitted dismissal (i.e. when the employee commits any act of instigation, encouragement or persuasion to violate the agreement on conditions of employment or equivalent arbitration award) (art. 123(5) LRA).


Viet Nam - 2012    

+ show references

Obligation d'informer le travailleur des raisons du licenciement: Oui
Remarks:
  • Art. 43 LC: The employer shall state in writing the reasons for the termination of the labour contract in the worker's labour book and shall be responsible for returning the labour book to the employee.


Motifs autorisés (licenciement justifié): conduite du travailleur; capacité du travailleur; motifs économiques
Remarks:
  • Art. 38 LC and art. 12, Decree 2003
    Article 38 LC
    "1. An employer shall have the right to terminate unilaterally a labour contract in the following circumstances:
    (a) The employee repeatedly fails to perform the work in accordance with the terms of the contract;
    (b) An employee is disciplined in the form of dismissal in accordance with the provisions of article 85 of this Code;
    (c) Where an employee suffers illness and remains unable to work after having received treatment for a period of twelve (12) consecutive months in the case of an indefinite term labour contract, or six consecutive months in the case of a definite term contract with a duration of twelve (12) months to thirty six (36) months, or more than half the duration of the contract in the case of a contract for a specific or seasonal job. Upon the recovery of the employee, the employer shall consider the continuation of the labour contract;
    (d) The employer is forced to reduce production and employment after trying all measures to recover from a natural disaster, a fire, or another event of force majeure as stipulated by the Government;
    (dd) The enterprise, body, or organization ceases operation."

    Art. 12 Decree 2003: "The provision that employers are entitled to unilaterally terminate their labor contracts in cases prescribed at Points a and d, Clause 1, Article 38 of the amended and supplemented Labor Code is stipulated as follows:
    1. Laborers constantly fail to fulfill their tasks under labor contracts, meaning that they fail to fulfill the labor norms or assigned tasks due to subjective reasons, and are booked or warned in writing at least twice in a month, but later still fail to redress their shortcomings.
    The extent of failure to fulfill the work shall be inscribed in labor contracts, collective labor agreements or labor regulations of the units.
    2. Force majeure reasons mean the cases where due to the requests of competent State bodies of the provincial or higher level, to enemy sabotage or epidemics which cannot be overcome, the production and/or business are subject to change or shrink."


Motifs prohibés: état matrimonial; grossesse; congé de matérnité; responsabilités familiales; maladie ou accident professionel temporaire; race; sexe; religion; origine sociale; affiliation et activités syndicales; prendre légalement ses congés
Remarks:
  • Prohibited grounds for dismissal: art. 39 and 111 LC.

    See also:
    - the general prohibition of discrimination in employment based on sex, race, social class, belief or religion (art. 5 LC).
    - the prohibition of discriminatory treatment towards a worker who joins a trade union. (art. 1, 2) of the Trade Union law, 1990)



Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité; travailleurs avec des responsabilités familiales; travailleurs en congé temporaire suite à une maladie professionnelle ou un accident du travail
Remarks:
  • Art. 39, Art. 111: Prohibition to dismiss:
    - a worker under treatment as a result of sickness, labour accident or occupational disease except in case of force majeure;
    - pregnant women, women on maternity leave, and women taking care of a child under 12 months of age, except for business reasons.
    Art. 155(4) LC: In order to dismiss a member of the executive committee of the local trade union, the employer must obtain the consent from this committee.