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> GOVERNANCE - home > Employment protection legislation database - EPLex

Avenues for redress (penalties, remedies) and litigation procedure for individual complaints


Afghanistan - 2013    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • The LC does not regulate compensation for unfair dismissal. The only provision regarding remedies for unfair dismissal is art. 132 according to which "If the employee is dismissed illegally from job, and re-employed to the previous job after a decision of the Dispute Settlement Commission or a court decision, his/her wages and other benefits of dismissal period is paid as per average wage and other benefit of the last six months prior to dismissal".

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
The LC does not contain any provision on compensation for unfair dismissal.

Reinstatement available: Yes

Remarks:
  • Art. 132 LC.

Preliminary mandatory conciliation: No

Remarks:
  • Conciliation is not compulsory
    Art. 131(1) LC provides that "Any kinds of disputes arising from work, between the organization [employer] and employee or trainee, can be settled by the direct understanding of the organization [employer] and the employee or trainee, on basis of the provisions of this Code and the supplement regulations and orders in relation to work."

Competent court(s) / tribunal(s): ordinary courts; administrative body

Remarks:
  • Art. 132 LC refers to the reinstatement decision of the Dispute Settlement Commissions or the Court.

    The LC states that the establishment and the composition of labour dispute settlement commission and the hearing of labour disputes shall be regulated in accordance with the relevant legislative document. However, no information as to the existence of such regulation was found.

Existing arbitration: No

Remarks:
  • No information found in the legislation reviewed. This might be regulated by a separate law, however no further information was found.

Algeria - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 73-4 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- Compensation for unfair disciplinary dismissal in lieu of reinstatement: at least 6 months' pay.
- In case of non-compliance with mandatory procedural requirements: the dismissal is void and the employer shall pay compensation which shall at least amount to back pay.
_____________________
- Indemnité pour licenciement disciplinaire abusif: si la réintégration du travailleur n'est pas possible (refus par l'une ou l'autre des parties), la compensation pécuniaire décidée par le juge ne
peut être inférieure à six mois de salaire, sans préjudice des dommages et intérêts éventuels.
- En cas de non-respect des exigences procédurales obligatoires : le licenciement est nul et l'employeur doit verser au travailleur une compensation pécuniaire qui ne peut être inférieure au salaire perçu
par le travailleur comme s’il avait continué à travailler.

Remarks:
  • Art. 73-4 LC.

Reinstatement available: Yes

Remarks:
  • Art. 73-4 LC.

Preliminary mandatory conciliation: Yes

Remarks:
  • Preliminary mandatory conciliation before the Conciliation Office (Bureau de Conciliation): see art. 19 of the Individual Labour Disputes Settlement Act. The Conciliation Office is made up of 2 representatives of the employers and 2 workers' representatives (art. 6 ILDSA).
    ________________________
    Conciliation préalable devant le Bureau de conciliation (Article 19 de la Loi 90-04 relative au règlement des conflits individuels de travail).

Competent court(s) / tribunal(s): labour court

Remarks:
  • According to the Individual Labour Disputes Settlement Act, disputes regarding termination of employment are heard by the tribunal competent over labour matters [le "Tribunal siégeant en matiere sociale"] (Art. 20 ILDSA). This tribunal shall comprise a judge and workers' and employers' representatives (art. 8 ILDSA).
    _____________
    L'article 20 de la Loi 90-04 relative au règlement des conflits individuels de travail dispose que les tribunaux siégeant en matière sociale connaissent des différends individuels de travail nés à l'occasion, notamment, de la rupture d'une relation de travail.

Existing arbitration: No

Remarks:
  • No arbitration for individual disputes.

Angola - 2013    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Disciplinary dismissals:
-Unfair disciplinary dismissal: compensation in lieu of reinstatement shall be one month's wages for each year of service but not less than 3 months' wages (arts. 265 GLA
In addition, the employee shall be granted back pay from the date of dismissal until he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (arts. 229 GLA).
- If the disciplinary dismissal was based on prohibited grounds (see above - 'substantial requirements') or did not follow the required procedural rules (call for an interview, notice of dismissal), it will be declared null by the Court, and the employee will be reinstated. The employee must receive back pay from the effective date of his dismissal until his/her reinstatement (art. 228 GLA).
2) Economic dismissals:
- Individual dismissals:
In the event of an unfair individual economic dismissal (objectives reasons exist, but the the unfairness results from the following elements: refusal to transfer the employee to another existing job, violation of the priority rules for dismissal, compensation in lieu of reinstatement shall amount to 50% of the monthly wages for each year of service. (arts. 237 and 263 GLA).
If the employer did not obtain the required authorizations (authorization for carrying out the dismissal, or authorization for dismissing workers who special protection), compensation in lieu of reinstatement shall be one month's wages for each year of service but not less than 3 months' wages. (arts. 237(4) and 265 GLA)
The employee is also entitled to back pay from the date of the dismissal until the date he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (art. 229(3) GLA)
- Collective dismissals:
In the event a collective dismissal is declared unlawful (a just cause exist but the unlawfulness results from one the following elements: absence of valid grounds, non-compliance with the procedural requirements, non observance of the priority rules for selecting redundant workers, absence of the required authorization for workers enjoying special protection), the worker shall be awarded compensation in lieu of reinstatement in addition to redundancy payment. Such compensation shall amount to 50% of the monthly wages for each year of service. (arts. 248 and 263 GLA)
If the reasons alleged by the employer for carrying out collective redundancies were proved non-existent, or if the employer did not observe the priority rules for dismissals when selecting the employees, compensation in lieu of reinstatement shall be one month's wages for each year of service but not less than 3 months' wages (arts. 248(4) and 265 GLA).
The employee is also entitled to back pay from the date of the dismissal until the date he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (art. 229(3) GLA).

Reinstatement available: Yes

Remarks:
  • 1) Disciplinary dismissals:
    - Reinstatement is available in the event of an unfair disciplinary dismissal. If the employee does not wish to be reinstated, he or she will be awarded compensation for unfair dismissal. In addition, the employee shall be granted back pay from the date of dismissal until he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (art. 229 GLA).
    - Any disciplinary dismissal which is based on prohibited grounds (see above - 'substantial requirements') or which did not follow the required procedural rules (call for an interview, notice of dismissal) will be declared null by the Court. As a result, the employee shall be reinstated and receive pack pay from the effective date of his dismissal until his/her reinstatement (art. 228 GLA).
    2) Economic dismissals:
    - Individual dismissal:
    In the event of unfair individual economic dismissal (i.e: absence of the required authorization, refusal to transfer the employee to another existing job, violation of the priority rules for dismissal, absence of authorization for the workers who enjoy special protection), the dismissed worker is entitled to be immediately reintegrated to his/her job. If he/she does not wish to be reinstated or if reinstatement is not possible, he/she will be awarded compensation. In both cases, the worker will receive back pay within a limit of 9 months' wages (art. 237 GLA).
    - Collective dismissals:
    In the event a collective dismissal is declared unlawful (absence of valid grounds, non-compliance with the procedural requirements, non observance of the priority rules for selecting redundant workers, absence of the required authorization for workers enjoying special protection), the employer must reinstate the employee, unless reinstatement is not possible or the employee does not wish to be reinstated. In addition, the employee shall receive back pay from the date of the dismissal until the date of the court's decision (art. 248 GLA).

Preliminary mandatory conciliation: No

Remarks:
  • The GLA provides for preliminary mandatory conciliation of individual labour disputes (art. 307 GLA). Conciliation is conducted by the provincial conciliation body dealing with labour disputes which is part of the provincial Public Prosecutor office (art. 308 GLA).
    However, according to art. 307 GLA, there is no mandatory conciliation when the dispute relates to the following matters:
    - Nullity of the individual disciplinary dismissal, that is in the event the employee alleges that the employer failed to observe the procedural requirements for such dismissal (e.g oral interview) or that the dismissal was based on prohibited grounds.
    - Absence of the authorization required for any individual dismissal based on objective grounds (economic, technological or structural reasons)
    - Unlawful collective dismissal because the employer failed to prove the existence of economic, technological or structural reasons, or because he/she did not follow the proper procedure.

    For any other dismissal-related disputes, preliminary conciliation shall be carried out.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • The Labour Chamber of the Provincial Courts (Sala do Trabalho dos Tribunais Provinciais) has jurisdiction over individual labour disputes: art. 306 GLA.

Existing arbitration: No

Remarks:
  • No information found in the legislation reviewed.

Antigua and Barbuda - 2018    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • See sec. B12 LC, as amended by sec. 6 of LCA: In an unfair dismissal or suspension without pay matter, a decisional officer may order the payment of a sum of money equal to loss of wages sustained and, in addition thereto he may also order the re-instatement or restoration of the person dismissed or suspended, or the payment of a sum of money in lieu of such reinstatement"

Reinstatement available: Yes

Remarks:
  • See sec. B12 LC as amended by sec. 6 LCA.

Preliminary mandatory conciliation: Yes

Remarks:
  • Complaints of unfair dismissals shall be first brought to the Labour Commissioner who shall seek to settle the matter by voluntary adjustment or settlement within 10 days. Conciliation or mediation may be used for those purposes (see sec. C60, C61 together with sec. B5 LC).
    Failing to achieve voluntary adjustment or settlement, he shall transmit the matter to the Minister in charge of Labour who shall also himself attempt to achieve voluntary adjustment or settlement of the matter by taking whatever steps he deems appropriate.(sec. C62 together with sec. B6 LC) If these attempts do not yield any results, the Minister shall take a number of steps available to him (sec. B6(2) LC) including referral of the matter to a Hearing officer (sec. C63 LC).

Competent court(s) / tribunal(s): administrative body

Remarks:
  • The Hearing Officer is competent to hear complaints of unfair dismissal (upon referral by the Minister) and impose appropriate remedies (damages or reinstatement in addition to the payment of loss wages) (see. sec. B12, and C63 LC).

    It should be noted that the Industrial Relations Court has jurisdiction over trade disputes (collective disputes) and does not generally have jurisdiction over individual disputes such as disputes concerning dismissal.
    However, according to sec. 10 ICA provides that in addition to its jurisdiction, in any dispute concerning the dismissal of an employee, if in the opinion of the Court, an employee has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice, it may order the re-employment or re-instatement of the employee and/or the payment of compensation or damages, or the payment of exemplary damages in lieu of such re-employment or re-instatement.

Existing arbitration: No

Remarks:
  • Dismissals complaints do not fall within the jurisdiction of the Arbitration Tribunal which is only competent to hear and determine any major trade dispute (sec. B8 LC). [A major dispute is a dispute which has led to an interruption of work which is continuing; or if there is no present interruption of work, may lead to an interruption of work: sec. K13 LC)

% of dismissals out of the total number of disputes: 46 %

Remarks:
  • Statistics for 2007 (% of termination, suspension, redundancy, lay-off disputes), from the Labour Department of Antigua and Barbuda.

Argentina - 2018    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
An employer who orders a worker's dismissal without good cause must pay the worker compensation equal to: one month's wages for every year of service and every fraction of a year greater than three months, taking as a basis for the calculation the highest monthly remuneration normally and regularly received during the last year or during the period for which the services were performed, whichever is less.

Remarks:
  • Art. 245 LCL

Reinstatement available: No

Preliminary mandatory conciliation: Yes

Remarks:
  • Mandatory conciliation is foreseen in Art. 1 of Act 24.635 (Ley Nº 24.635 - Procedimiento laboral. Conciliación obligatoria previa. Modificación de la ley 18.345)

    Act available at:
    http://servicios.infoleg.gob.ar/infolegInternet/anexos/35000-39999/36739/norma.htm

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 20, Organization and Procedures of National labour Justice, Act No. 18.345.

Existing arbitration: Yes

Remarks:
  • Voluntary arbitration is foreseen in Art. 28 of Act 24.635 when mandatory conciliation fails (Ley Nº 24.635 - Procedimiento laboral. Conciliación obligatoria previa. Modificación de la ley 18.345)

    Act available at:
    http://servicios.infoleg.gob.ar/infolegInternet/anexos/35000-39999/36739/norma.htm

    See also Article 149ff Ley Nacional de Empleo (Ley 18.435)

Armenia - 2018    

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Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
If the worker's reinstatement is impossible, the tribunal obliges the employer to pay the worker the average wages for the period of the "imposed non-work" since the date of the dismissal.

Remarks:
  • Art. 265 LC

Reinstatement available: Yes

Remarks:
  • Art. 265 LC

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 264 LC

Existing arbitration: No

Length of procedure:

Remarks:
  • Art. 265: the worker may bring a complaint about his or her dismissal to the tribunal within the period of two months after receiving the notification about the termination of his or her employment.

Australia - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See s392 FWA on Remedy - compensation

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Max. 26 weeks' salary or half the amount of the high income threshold [HIT]
(The HIT, which is indexed annually is currently $145,400 (July 2018) therefore the compensation cap is $72,700.)

Remarks:
  • s392 (5) and (6) FWA on Compensation cap
    Compensation cap
    "(5) The amount ordered by FWC to be paid to a person under subsection (1) must not exceed the lesser of:
    (a) the amount worked out under subsection (6); and
    (b) half the amount of the high income threshold immediately before the dismissal.
    (6) The amount is the total of the following amounts:
    (a) the total amount of remuneration:
    (i) received by the person; or
    (ii) to which the person was entitled;
    (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
    (b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

Reinstatement available: Yes

Remarks:
  • s390 and s391 FWA.
    s391 reads as follows:
    "Reinstatement
    (1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
    (a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
    (b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
    (1A) If:
    (a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
    (b) that position, or an equivalent position, is a position with an associated entity of the employer;
    the order under subsection (1) may be an order to the associated entity to:
    (c) appoint the person to the position in which the person was employed immediately before the dismissal; or
    (d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal [...]"

Preliminary mandatory conciliation: Yes

Remarks:
  • After an unfair dismissal application has been lodged, the Fair Work Commission must resort to all means other than arbitration which it considers are likely to resolve the conflict, such mediation, conciliation, making a recommendation or expressing an opinion (sec. 368 FWA). It usually convenes a conciliation conference of the parties which is held by telephone with a conciliator from the Fair Work Commission.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Unfair dismissal disputes are decided by the Fair Work Commission (which is the national workplace relations tribunal) (sec. 385, 390 FWA)

    Note that general protections dismissal applications (see prohibited grounds) can be brought to the FWC which must deal with the dismissal by mediation or conciliation. If it is satisfied that all reasonable attempts to resolve the dispute by mediation or conciliation have been or are likely to be unsuccessful ,it must issue a decision to refer the dispute to arbitration. If both parties agree, the FWC can then resolve the conflict by arbitration (sec. 369 FWA). Otherwise, the applicant can then make an application to an ordinary court to deal with the matter (Sec 370 FWA).
    A person cannot make a general protections dismissal application at the same time as an unfair dismissal application

Existing arbitration: Yes

Remarks:
  • If the FWC is satisfied that all reasonable attempts to resolve a general protections dismissal application by mediation or conciliation have been or are likely to be unsuccessful and has issued a formal decision regarding this matter, it can, with the approval of both parties, resolve the conflict by arbitration, including by issuing binding orders to reinstate or compensate the applicant, to maintain his or her employment and to pay lost remuneration (sec. 369 FWA).

Austria - 2016    

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Compensation for unfair dismissal - free determination by court: Yes

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):

Remarks:
  • Application of the general civil law rules on damage compensation: reimbursement of actual loss of earnings between dismissal and ruling.

Reinstatement available: Yes

Remarks:
  • Sec. 105 WCA. No reinstatement as such. However, if the Court finds the dismissal unlawful, it will declare it void and therefore the employment relationship continues.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • Sec. 105(4) WCA and 50 (1) Labour and Social Court Act.

Existing arbitration: Yes

Remarks:
  • Chapter 4 Code of Civil Procedure as amended by the New Arbitration Law 2013 ("Schiedsrechts-Änderungsgesetz").

Azerbaijan - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 290 and 300 LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):

Remarks:
  • Art. 299 LC - No legal limits for any claim for an individual labour dispute.

Reinstatement available: Yes

Preliminary mandatory conciliation: No

Remarks:
  • Art. 294 LC

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 296 LC

Existing arbitration: Yes

Remarks:
  • Art. 265 LC

% of dismissals out of the total number of disputes: 80 %

Bangladesh - 2017    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • The LA does not specify the powers of the Court with respect to awarding damages. Sec. 33(4) LA refers to the power of the Court to "make such orders as it may deem just and proper". This includes awarding damages.

Reinstatement available: Yes

Remarks:
  • Sec. 33(5) LA: The Labour court, may amongst other relief, direct reinstatement of the complainant in service, either with or without back wages and convert the order of dismissal, removal or discharge to any other lesser punishment (i.e: suspension, warning, downgrading to a lower post).

Preliminary mandatory conciliation: No

Remarks:
  • Conciliation is only foreseen for the settlement of industrial disputes (sec. 210 LA).
    An industrial dispute is defined as "any dispute or difference between employers and employers or between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person" (sec. 2(Lxii) LA). An industrial dispute is deemed to exist only if it has been raised by a collective bargaining agent or an employer (sec. 209 LA).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Note that only workers who have been "discharged", "dismissed" or "retrenched" (i.e. workers who have been dismissed on grounds of incapacity, misconduct or redundancy) can seek redress for grievance related to dismissal in the courts.
    Workers who have been "terminated" by simple notice (with no reason given) cannot challenge such termination in court unless they claim a breach of the requisite requirements (notice and severance pay) or allege that their termination was based on their trade union membership or activity (sec. 33(9) LA).
    - The worker must start a grievance procedure by submitting his/her complaint to the employer, in writing within 30 days of being informed the cause of such grievance. The employer has to inquire into the matter and inform the worker of his/her decision in writing within 15 days (sec. 33(1) &(2) LA ).
    - If the employer fails to give an answer or if the worker is not satisfied with the employer's statement, the worker can bring a complaint before the Labour Court within 30 days (sec. 33(3) LA). The Court shall issue a decision within 60 days following the filing of the case (sec. 216(11) LA).
    - Appeals against the court's decision shall be lodged to the Labour Appellate Tribunal within 30 days of the court's order (sec. 33(6) LA).

Existing arbitration: No

Remarks:
  • The parties can only resort to arbitration in the event of an industrial dispute (sec. 210 LA) which "means any dispute or difference between employers and employers or between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person" (sec. 2(Lxii) LA) and which is deemed to exist only "if it has been raised by a collective bargaining agent or an employer" (sec. 209 LA).

Length of procedure: 60 day(s) (statutory)

Remarks:
  • - 60 days: statutory timeframe during which the labour court shall issue a decision once the case has been filed.

Notes / Remarks
Note that only workers who have been "discharged", "dismissed" or "retrenched" (i.e. workers who have been dismissed on grounds of incapacity, misconduct or redundancy) can seek redress for grievance related to dismissal in the courts.
Workers who have been "terminated" by simple notice (with no reason given) cannot challenge such termination in court unless they claim a breach of the requisite requirements (notice and severance pay) or allege that their termination was based on their trade union membership or activity (sec. 33(9) LA).

Belgium - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Are there legal limits?: Yes

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In case of "manifestly unreasonable" termination of employment, the employer shall grant a compensation to the worker of minimum 3 weeks and maximum 17 weeks of remuneration (Art. 9 of the national 2014 Collective labour agreement No. 109).

In addition, the worker might request another specific compensation in case the employer does not motivate the reasons for the dismissal.

Remarks:
  • ECA Art. 39.§ 1er: Si le contrat a été conclu pour une durée indéterminée, la partie qui résilie le contrat sans motif grave ou sans respecter le délai de préavis fixé au articles [1 37/2, 37/5, 37/6 et 37/11]1, est tenue de payer à l'autre partie une indemnité égale à la rémunération en cours correspondant soit à la durée du délai de préavis, soit à la partie de ce délai restant à courir. L'indemnité est toutefois toujours égale au montant de la rémunération en cours correspondant à la durée du délai de préavis, lorsque le congé est donné par l'employeur et en méconnaissance des dispositions [2 ...]2 de l'article 40 de la loi sur le travail du 16 mars 1971.
    L'indemnité de congé comprend non seulement la rémunération en cours, mais aussi les avantages acquis en vertu du contrat. (...)

Reinstatement available: No

Remarks:
  • Except for workers’ representatives on works councils and health, safety and working conditions committees.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 578 of the Judiciary Code

Existing arbitration: No

Burden of proof: worker

Remarks:
  • In principle the worker has the burden of proof on the basis of the rule that who claims something has to prove it.
    However, in certain circumstances, the burden of proof is somehow reversed:
    - If the employer has not correctly informed the dismissed worker about the concrete reasons that led to his/her dismissal (art. 5 en 6 Collective Labour Agreement (CLA) No. 109), the employer has to prove the worker was dismissed for fair reasons;
    - If the worker enjoys special protection against dismissal, the employer will have to prove that the reasons for the dismissal are strange to the reason for the special protection.

Bolivia - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See Article 13 LC (above)

Reinstatement available: Yes

Remarks:
  • Articles 10 and 11 of Supreme Decree No. 28699 provides for the possibility for employees to choose between reinstatement or compensation in case of unfair dismissal.
    If the employee opts for reinstatement, he/she can request the Labour Authority to issue a reinstatement order, provided that the dismissal is proved to be unjustified.

Preliminary mandatory conciliation: No

Remarks:
  • Only for collective labour disputes

Competent court(s) / tribunal(s): labour court

Remarks:
  • The procedure is governed by the Code on Labour Procedure, 1979, (Código de procedimiento laboral 1979)

Existing arbitration: No

Remarks:
  • Only in the case of collective labour disputes.

    Note: In 2015, a new law on arbitration and conciliation was approved (Ley No. 708 of 25 June 2015), which explicitly excludes labour relations from its scope (Art. 5).

Botswana - 2018    

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Compensation for unfair dismissal - free determination by court: Yes

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Sec. 24(3) of the Trade Disputes Act provides that where the Industrial Court orders reinstatement, any compensation ordered shall not exceed the actual pecuniary loss suffered by the employee as a result of wrongful dismissal.

Sec. 24(4) provides that in assessing the amount of compensation to be paid, the Court may consider:
(a) the actual and future loss likely to be suffered by the employee as a result of the wrongful dismissal;
(b) the age of the employee;
(c) the prospects of the employee in finding other equivalent employment;
(d) the circumstances of the dismissal;
(e) the acceptance or rejection by either the employer or the employee of any recommendations made by the Court for the reinstatement of the employee;
(f) any contravention of the terms of any collective agreement or of any law relating to employment by the employer or the employee; or
(g) the employer's ability to pay.

Reinstatement available: Yes

Remarks:
  • Sec. 24 of the Trade Disputes Act provides for a number of remedies available to an employee in the case of wrongful dismissal. The Industrial Court may order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement (sec. 24(1)).

    The Industrial Court shall consider compulsory reinstatement in cases of wrongful dismissals if (a) the termination was found to be unlawful, or motivated on the grounds of gender, trade union membership, trade union activity, the lodging of a complaint or grievance, or religious, tribal or political affiliation or (b) the employment relationship has not irrevocably broken down (Sec. 24(2)).

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • Competent court(s) / tribunal(s): Commissioner of Labour and Labour Court

    Sec. 7 of the Trade Disputes Act provides for the referral of disputes to the Commissioner of Labour. Sec. 7(2) provides that an employee referring a dispute concerning termination of employment shall refer the dispute within 30 days of the date of such termination.

    Sec. 24 of the Trade Disputes Act grants the Industrial Court jurisdiction to hear cases regarding the wrongful termination of contract or disciplinary action. As such, under sec. 24(1), in any case where the Court determines that an employee has been wrongfully dismissed or disciplined, the Court may, subject to its discretion to make any other order which it considers just-
    (a) in the case of wrongful dismissal, order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement

Existing arbitration: No

Remarks:
  • Sec. 27(3) of the EA. Where a severance benefit is payable in accordance with this section, either the employer or employee may, where there is a dispute as to the amount payable, apply, within such period and in such form and manner as may be prescribed, to the nearest labour officer to determine the amount of the benefit and, where such application is made, the nearest labour officer shall forthwith proceed to determine the amount of the benefit.

Brazil - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- If a just cause is not recognized by the Court, the employee is entitled to compensation for dismissal without cause = 40% of the total amount deposited in the FGTS ("Fundo de Garantia por Tempo de Serviço". This amounts to: 40% x 8% x length of service (in months). This compensation for termination of employment is not payable until one year of employment has been completed.

-Workers under a fixed-term contract who are dismissed without cause are also entitled in addition to the above mentioned amount, to the payment of sum equal to half the remuneration to which he or she would have been entitled on the expiry of the contract.

Remarks:

Reinstatement available: Yes

Remarks:
  • Compensation through the FGTS system is usually the only remedy for unfair dismissal.
    However reinstatement is available in the following situation:
    * Dismissal of workers who had acquired the right of security of tenure after ten years of service before the adoption of the 1988 Constitution (= those hired before 1978). If a serious offence is not duly established, they shall be reinstated or be awarded compensation if the Court declares that reinstatement is not advisable (art. 495 CLL).
    * The same rules apply to those categories of employees enjoying job stability (i.e. pregnant women, member of a trade union board and workers' representatives on the Internal Accident Prevention Commission (CIPA)). If serious reasons for dismissal are not recognized by the Labour Court, they have the right to be reinstated.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art 764 CLL: All labour disputes, whether individual or collective, which are referred to a labor court shall be submitted to conciliation proceedings before the labour judges.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 643-645 CLL: disputes arising out of relations between employers and employees should be settled by the labour courts. The Labour Court of Appeal, regional labour courts, and the Junta de Conciliação e Julgamento [JCJ] (first instance labour court) or the courts of ordinary jurisdiction have jurisdiction. Recourse to the labour courts is compulsory, without exemption, except for good and sufficient reason.
    - The JCJ are competent to judge and settle disputes in which the recognition of the security of tenure of the employee is claimed and disputes relating to compensation for the cancellation of a contract of employment (art. 652 CLL). In localities which do not fall within the jurisdiction of the conciliation and arbitration boards, the judges of ordinary jurisdiction shall be responsible for the administration of justice in labour matters (art. 668 and 669 CLL).

Bulgaria - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 225 (1) LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation for unlawful dismissal shall amount to the employer's gross remuneration for the period of unemployment caused by the dismissal but not for more than 6 months.

Remarks:
  • Art. 225 (1) LC

Reinstatement available: Yes

Remarks:
  • Art. 344 (1) LC. Right of the employee to demand reinstatement.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 344 (4) LC refers to district and regional courts.

Existing arbitration: No

Length of procedure: 3 month(s) (statutory)

Remarks:
  • 3 months is the statutory timeframe for the first instance decision.

    Art. 344 (4) provides for a mandatory timeframe for consideration of labour disputes by the courts:
    * within 3 months following the receipt of the claim for the district court and;
    * within 1 month following the receipt of appeal by the regional court.

    Note: The action relating to termination of employment should be brought within 2 months as from the date of termination (art. 358 (1) LC).

Burkina Faso - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation for unfair dismissal (absence of valid ground): maximum 18 months' pay.

Remarks:
  • * Compensation for unfair dismissal (absence of valid ground) : Art. 74 LC.

    In addition art. 76 LC provides for compensation for failure to observe the prescribed procedure (absence of written notification or written justification) which shall amount to maximum 3 months' pay.

Reinstatement available: Yes

Remarks:
  • Art. 70 LC

Preliminary mandatory conciliation: Yes

Remarks:
  • Before bringing the dispute to court, the parties have the obligation to resort to extra-judicial conciliation before the Labour Inspector (art. 320 LC).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 338 LC

Existing arbitration: No

Cambodia - 2017    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 94 LC: The amount of damages is fixed by the Court, in light of the local custom, the type and importance of the services rendered, the employee's seniority and age, any deductions or payments made to a retirement plan, and other circumstances establishing the existence and the extent of the harm incurred. Instead of providing proof of damages in court, the worker can ask for a lump sum payment equal in amount to the indemnity for dismissal (Art. 91 LC).

Reinstatement available: Yes

Remarks:
  • Art. 385 LC

Preliminary mandatory conciliation: No

Remarks:
  • Preliminary conciliation is only an option for individual disputes.
    Art. 300 LC: Prior to any judicial action, an individual dispute can be referred for a preliminary conciliation, at the initiative of one of the parties, to the Labour Inspector of his province or municipality.

    However, conciliation is mandatory for collective (interest and rights) disputes : art. 305 LC.

Competent court(s) / tribunal(s): labour court

Remarks:
  • See Article 387 LC: Labour courts shall be created that have jurisdiction over the individual disputes occurring between workers and employers regarding the execution of the labour contract or the apprenticeship contract.

    However, labour courts have not been established yet. Pending the creation of those Courts, ordinary courts have jurisdiction over labour disputes pursuant to art. 389 LC.

Existing arbitration: Yes

Remarks:
  • Settlement by the Arbitration Council is compulsory when conciliation failed for collective disputes (rights and interest): art. 309 LC.
    The arbitration council has developed a body of reliable jurisprudence on termination of employment.
    http://www.arbitrationcouncil.org/eng_index.htm

Cameroon - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 39 (4) LC reads as follows:
    "... 4) Le montant des dommages-intérêts est fixé compte-tenu, en général, de tous les éléments qui peuvent justifier l’existence et déterminer l’étendue du préjudice causé et notamment :a) lorsque la responsabilité incombe au travailleur, de son niveau de qualification et de l’emploi occupé ; b) lorsque la responsabilité incombe à l’employeur, de la nature des services engagés, de l’ancienneté des services, de l’âge du travailleur et des droits à quelque titre que ce soit. Toutefois, le montant des dommages-intérêts, sans excéder un mois de salaire par année d’ancienneté dans l’entreprise, ne peut être inférieur à trois mois de salaire. (...)".

    Art. 39 (5) LC reads as follows:
    "...5) En cas de licenciement légitime d’un travailleur survenu sans observation par l’employeur des formalités prévues, le montant des dommages-intérêts ne peut excéder un mois de salaire."

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Unfair dismissal: not more than 1 month's salary per year of service and not less than 3 months' salary.
In addition, failure to observe the procedural requirements gives rise to compensation of not more than 1 month's salary.

Remarks:
  • Art. 39, (4) and (5) LC

Reinstatement available: No

Remarks:
  • Except for workers' representatives: Art. 130 (4) LC.

Preliminary mandatory conciliation: Yes

Remarks:
  • Preliminary mandatory extra-judicial conciliation before the Labour Inspector (art. 139 LC).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 131 and 133 LC

Existing arbitration: No

Canada (Federal only) - 2012    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Sec. 242(4)a) CLC (see below).

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In the event of unjust dismissal, the arbitrator may order the employer to pay compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person.

Remarks:
  • Sec. 242(4)a) CLC.
    Note that in addition, the arbitrator can also require the employer to take any similar action that is equitable to require of the employer in order to remedy or counteract any consequence of dismissal (sec. 242(4)c) CLC).

Reinstatement available: Yes

Remarks:
  • Sec. 242(4)b) CLC.

Preliminary mandatory conciliation: Yes

Remarks:
  • Sec. 241(2) CLC: on receipt of a complaint of unjust dismissal, the inspector shall endeavour to assist the parties to settle the
    complaint or cause another inspector to do so.

Competent court(s) / tribunal(s): none

Remarks:
  • Arbitration is the ordinary way of settling unjust dismissal cases.
    Note: civil remedies for wrongful dismissal are not addressed here.

Existing arbitration: Yes

Remarks:
  • Arbitration is the ordinary way of settling unjust dismissal cases.
    - Only employees who have completed 12 consecutive months of continuous employment with the same employer, and who are not members of a group of employees subject to a collective agreement, are entitled to make a complaint for unjust dismissal (sec. 240 CLC)
    - Unjust dismissals complaints shall be first submitted to an inspector within 90 days from the date of dismissal. The inspector shall first attempt to conciliate the parties. If conciliation fails, the inspector informs the Minister of Labour who then refers the complaint to an arbitrator (adjudicator) appointed by him for decision (sec. 240(2), 241(3), 242 CLC)
    Every order of an adjudicator is final and shall not be questioned or reviewed in any court. (sec. 243(1) CLC)

Notes / Remarks
This section covers complaints of and remedies for unjust dismissal which are regulated by the CLC and does not address civil remedies for wrongful dismissal.

Central African Republic - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 156 LC: The amount of damages for unfair dismissal is fixed by the Court, in light of any circumstances establishing the existence and the extent of the harm incurred, including the local custom, the type and importance of the services rendered, the employee's seniority and age, any deductions or payments made to a retirement plan, and other established rights.

Reinstatement available: Yes

Remarks:
  • Art. 144 (2) LC: Reinstatement is the primary remedy in the event of unjustified dismissal.
    Art. 144 LC reads as follows: "Les licenciements prononcés par l’employeur dont les motifs ne sont pas réels et sérieux ne sont nuls et de nul effet. En cas de licenciement injustifié, si l’annulation de celui-ci et ou la réintégration du travailleur ne sont pas possibles, l’employeur est tenu de verser au travailleur en sus des droits légaux, des dommages- intérêts."

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 346 LC: preliminary conciliation

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 354 LC: Labour tribunals (Tribunaux du Travail) have jurisdiction over individual labour disputes arising from the employment contract, labour conditions, hygiene and safety conditions, social security regime.

Existing arbitration: No

Remarks:
  • No arbitration for individual disputes.
    Arbitration can only be used for the settlement of collective labour disputes (art. 380 to 396 LC).

Chile - 2018    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation = severance pay (30 pays/year of service with a maximum of 330 days) increased by:
- 30% if a dismissal based the requirements of the undertaking is declared unjustified, unfair or unlawful by the court.
- 50 % if the court rules unjustified termination of employment due to unforeseen circumstances or force majeure;
- 80% if a dismissal based on unduly conduct or serious breach of obligations set forth in the contract is declared unjustified
- 100% if the alleged reasons for dismissal are serious misconduct, acts or negligence seriously affecting the safety of the establishment and deliberate material damages (art. 160, 1), 5) 6) LC) and the court rules that there were no plausible grounds for dismissal.

Remarks:
  • See art. 168 LC.

Reinstatement available: Yes

Remarks:
  • There is no general right to reinstatement following unfair dismissal.
    However reinstatement is available to the worker in the event of discriminatory dismissal (that is dismissal based on: race, colour, sex, age, marital status, union association, religion, politic beliefs, nationality and social origin) and which is declared serious by the court: see art. 489 LC.
    Similarly, if a worker who is not protected under the "fuero laboral" is dismissed as the result of anti-union or unfair labour practices, he or she can opt for reinstatement (art. 294 LC).

Preliminary mandatory conciliation: Yes

Remarks:
  • - Judicial conciliation is part of the procedure before the labour jurisdiction: art. 453 2) LC.
    - Small claims proceedings (procedimiento monitorio) = value not exceeding 10 months' wages: mandatory extra-judicial conciliation before the Labour Inspectorate (art. 497 LC)

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 420 a) LC: 'Juzgados de Letras del Trabajo'

Existing arbitration: No

China - 2017    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Twice the rate of the severance pay

Remarks:
  • Art. 48 ECL

Reinstatement available: Yes

Remarks:
  • Art. 48 ECL.

Preliminary mandatory conciliation: No

Remarks:
  • See art. 79 LL and art. 5 Labour Dispute Mediation and Arbitration Law (2007, entered into force in May 2008)
    Art. 79 LL does not provide for preliminary mandatory conciliation, but only gives the parties the option to turn to a mediation and/or arbitration committee before going to Court.
    The new Labour Dispute Mediation and Arbitration Law regulates labour disputes settlement. (See text: http://www.lawinfochina.com/display.aspx?id=6584&lib=law)

    See secondary sources:
    http://www.dwt.com/LearningCenter/Advisories?find=22301

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Arbitration is mandatory in the event of an individual labour dispute.
    The parties can only go to court, if they do not agree with the arbitration outcome, within 15 days from the date the award is communicated. See art. 5 and 50 of the Labor Dispute Mediation and Arbitration Law.

Existing arbitration: Yes

Remarks:
  • Arbitration is mandatory in the event of an individual labour disputes. Art. 79 LL, see also art. 5 and 50 of the Labour Dispute Mediation and Arbitration Law (2007, entered into force in May 2008).

Comoros - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Article 44 of the Labour Code

Reinstatement available: Yes

Remarks:
  • Article 44 of the Labour Code: reinstatement shall be the primary remedy.

Preliminary mandatory conciliation: Yes

Remarks:
  • Article 47 of the Labour Code (former art.49): before going to the court, any worker who believes he/she has been unfairly dismissed has to challenge his or her dismissal before the labour inspector. The Labour Inspector examines the alleged reasons for the dismissal and any other circumstances of the case and make recommendations in order to reach an amicable settlement including reinstatement.

    Articles 220 and 226 of the Labour Code (former art. 200 and 206): mandatory pre-trial conciliation by the labour tribunal.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Articles 44 and 212 of the Labour Code (former art.46 and 192).

Existing arbitration: No

Congo, Democratic Republic - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 63 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Dismissal with no valid reason: compensation is fixed by the court, but shall not exceed 36 months.

Remarks:
  • Art. 63 LC.

Reinstatement available: Yes

Remarks:
  • Art. 63 LC.

Preliminary mandatory conciliation: Yes

Remarks:
  • Mandatory preliminary extra judicial conciliation before the Labour Inspector: Art. 300 LC and Art. 25 of the Act No. 016/2002 on the establishment, organization, and functioning of Labour Tribunals.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 63 LC.

Existing arbitration: No

Cyprus - 2012    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Statutory compensation for unfair dismissal is calculated following the scheme of redundancy payment. It varies according to the length of service and is limited to 24 months.

Remarks:
  • (Note that an employee is entitled to compensation for unfair dismissal provided he or she has been employed for more than 26 weeks (extended to 104 weeks if agreed by the parties at the conclusion of the contract) and he has not reached the age of 65)

    Pursuant to schedule 4 of the TEA, statutory compensation is established as follows:
    * Max. 2 weeks' wages for each year of service up to 4 years;
    * max. 2.5 weeks' wages for each year of service from 5 to10;
    * max. 3 weeks' wages for each year of service from 11 to 15 years;
    * max. 3.5 weeks' wages for each year of service from 16 to 20 years
    * max. 4 weeks' wages for each year of service from 21 to 25 years.
    Compensation is limited to 24 months' wages.

    The Industrial Disputes Court may take into account additional factors.


Reinstatement available: Yes

Preliminary mandatory conciliation: No

Remarks:
  • No statutory provision in the legislation reviewed / no information in the secondary sources.

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • Sec. 2 and 3 TEA.
    The Industrial Dispute Court has jurisdiction over cases of unfair dismissals (Proceedings must be initiated within 1 year from the date of dismissal).
    Alternatively, the employee may institute proceedings before the civil courts for breach of the employment contract (wrongful dismissal). They must be initiated within six years following the date of termination of employment.

Existing arbitration: No

Remarks:
  • No statutory provision in the legislation reviewed / no information in the secondary sources.

Czech Republic - 2010    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Sec. 69 (1) LC

Reinstatement available: Yes

Remarks:
  • Sec. 69 (1) LC.
    As a consequence of a court's decision of the invalidity of termination of the employment relationship by the employer, continuation of that relationship is the rule, unless the employee has no interest in further continuation.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Sec. 72 LC refers to the competent Court. No labour courts in the Czech Rep.

Existing arbitration: No

Côte d'Ivoire - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • L'article 18.15 du Code du travail dispose que "toute rupture abusive du contrat donne lieu à des dommages et intérêts. (...) b) lorsque la responsabilité incombe à l'employeur, le montant des dommages et intérêts équivalant à un mois de salaire brut par année d'ancienneté dans l'entreprise ne peut être inférieur à 3 mois de salaire ni excéder 20 mois de salaire brut". (...)
    ____________
    In English:
    Art. 18.15 LC provides that "any abusive breach of contract shall give rise to damages. (...) b) where the employer is liable, the amount of damages equivalent to one month's gross salary per year of service in the company may not be less than 3 months' salary or more than 20 months' gross salary. (...)

Compensation for unfair dismissal - Are there legal limits?: Yes

Remarks:
  • Voir ci-dessous l'article 18.15 du Code du travail.
    See above Art. 18.15 LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):

Remarks:
  • Voir ci-dessous l'article 18.15 du Code du travail.
    See above Art. 18.15 LC

Reinstatement available: No

Remarks:
  • Toutefois.
    L'article 61.9 du Code du travail prévoit le droit à la réintégration pour le licenciement du délégué du personnel dans certaines circonstances.
    L'article 6 du Code du travail dispose que "tout licenciement motivé par l'action en justice pour faire respecter les principes et droits fondamentaux au travail est nul et de nul effet. La réintégration du salarié licencié au mépris de cette interdiction est de droit. (...)"
    _________
    In English:
    However:
    Art. 61.9 LC provides for the right to reinstatement in the case of workers' representatives' dismissals in certain circumstances.
    Art. 6 LC provides that "any dismissal on the ground of legal action aiming at enforcing fundamental principles and rights at work shall be null and void. The reinstatement of the dismissed employee in breach of this prohibition shall be automatic. (...)"

Preliminary mandatory conciliation: Yes

Remarks:
  • Aux termes de l'article 81.23 du Code du travail, "lorsque les parties comparaissent devant le tribunal du travail, il est procédé à une tentative de conciliation".
    Par ailleurs, l'article 81.2 du Code du Travail dispose que "tout différend individuel du travail est soumis, avant toute saisine du tribunal du travail, à l'inspecteur du travail et des lois sociales pour tentative de règlement amiable".
    _________________
    In English:
    Art. 81.23 LC: conciliation shall be part of the procedure before the labour court.
    Note also that the individual labour dispute can be brought to the Labour Inspector for extra-judicial conciliation (Art. 81.2 LC)

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 81.8 LC et seq

Existing arbitration: No

Denmark - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Sec. 2b (1), (2) ESEA

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
For employees having worked for at least 12 months, compensation shall not exceed the salary of the employee corresponding to half of the period of notice; it may amount up to 3 months' salary for employees over 30 years of age, 4 months' salary for employees with at least 10 years of service; 6 months' salary for employees with at least 15 years of service.

Remarks:
  • Sec. 2b (1), (2) ESEA

Reinstatement available: Yes

Remarks:
  • No provision on reinstatement in the ESEA.
    However the General Agreement, 1973 concluded by the Danish Employers' Confederation and the Danish Confederation of Trade Unions provides for reinstatement.

    See also: OECD employment protection legislation database, 2013, Denmark: "reinstatement orders are possible but rare" (available at: www.oecd.org/els/emp/oecdindicatorsofemploymentprotection.htm).

Preliminary mandatory conciliation: Yes

Remarks:
  • Case management in the Danish Labour Court
    by Managing Judge Jørn Andersen, Head of Secretariate, 19.9.04, available at:
    hwww.ilo.org/wcmsp5/groups/public/---ed_dialogue/---dialogue/documents/meetingdocument/wcms_160035.pdf

    Summary of the Danish Labour Court and Labour administration system, available at:
    http://www.arbejdsretten.dk/generelt/labour-court.aspx

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • The Labour Courts have jurisdiction over cases involving workers covered by a collective agreement whereas ordinary Courts have jurisdiction over dismissal disputes involving those not covered by a collective agreement.

    In addition, special dismissal bodies have been set up by social partners for unfair dismissal cases for parties to collective agreements. Their decision can be appealed to ordinary courts.
    See Danielle Venn (2009), "Legislation, collective bargaining and enforcement: Updating the OECD employment protection indicators", p. 30. Available at: http://www.oecd-ilibrary.org/social-issues-migration-health/legislation-collective-bargaining-and-enforcement_223334316804

Existing arbitration: Yes

Remarks:
  • Regulated by Arbitration Act No. 553 of 24 June 2005 as last amended in 2008.

Egypt - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See art. 122 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Not less than two months' wage for each year of service.

Remarks:
  • Art. 122 LL.

Reinstatement available: Yes

Remarks:
  • Reinstatement is only available in the following cases:
    - If the Labour Court rejects the employer's request to dismiss an employee on disciplinary grounds (listed in art. 69 LL), it will order the employer to reinstate the worker and pay him back wages. However, if the employer does not follow the court's decision, the dismissal is deemed as an unjustified dismissal and the worker is allowed financial compensation as provided in art. 122 LL (art. 71 LL, as amended in 2008).
    - If the court considers that the employer requests the dismissal of a worker because of his or her trade union activities, it will order the employer to reinstate the worker if so requested by the worker (art. 71 LL, as amended in 2008).

    In any other cases, unjustified termination by employer will only give right to compensation (art. 122 LL).

Preliminary mandatory conciliation: Yes

Remarks:
  • If an individual dispute on the application of the LL arises, it shall first be brought to tripartite body (consisting in representatives of the competent administrative administration, of the employer and of the trade union) for amicable settlement.

Competent court(s) / tribunal(s): labour court

Remarks:
  • See art. 70 and 71 LL as amended in 2008. Since 2008, the Committee in charge of settling individual labour disputes has been replaced by the Labour Court.

Existing arbitration: No

Remarks:
  • No provision found in the legislation reviewed.

El Salvador - 2010    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 58 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) In case of unjustified dismissal (despido de facto) of a worker under a contract of indefinite duration, the employer has to pay a compensation of 30 days' basic wages per year of service or in proportion for any fraction thereof. However, this compensation shall not be less than 15 days' basic wages. No salary exceeding four times the minimum legal daily salary will be considered for the effects of calculating the compensation.
In addition, the employee is entitled to recieve back pay which shall accrue from the date of the complaint until the court decision. However it shall not exceed 35 days' wages (increased by max. 20 days if the case goes to appeal or cassation)


2) When a FTC worker is dismissed without just cause before the expiration of the contract, the employer has pay compensation which shall amount to the wages the worker would have been entitled to until the expiry of the FTC.

Remarks:
  • See art. 58 and 59 LC.
    On back pay, see art. 420 LC.

Reinstatement available: No

Remarks:
  • The Labour Code does not provide for the reinstatement of workers who have been unfairly dismissed.

Preliminary mandatory conciliation: Yes

Remarks:
  • Only in dismissals that lead to judicial procedure. Art. 385 LC.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 369 LC - "los jueces laborales" in first instance and "las Cámaras de lo Laboral" in second instance.

Existing arbitration: No

Remarks:
  • Arbitration is only foreseen for the settlement of collective disputes. due to economic or interest reasons. (Art. 480 and 500-514 LC).

    Note that art. 24 Conciliation, Mediation and Arbitration Act excludes labour disputes from its scope of application.

Estonia - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 109 ECA. There are statutory amounts of compensation for unfair dismissal (in lieu of reintegration). However, it is worth noting that such amounts (3 or 6 months' wages depending on the categories of employees - see below) can be modified by the court or the labour dispute committee.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- In the event of an unlawful dismissal, if so requested by either party, the court or the labour dispute committee can terminate the employment contract as of the time when it would have been terminated in the event of the validity of the cancellation. In such cases, the employer shall pay 3 months' wages. This amount can however be modified by the court or the labour dispute committee, considering the circumstances of the dismissal and the interests of both parties.
- If the unlawful dismissal affects a pregnant woman or a woman entitled to maternity leave as well as an employee's representative, compensation in lieu of reinstatement shall be 6 months' wages. This amount can however be modified by the court or the committee.

When compensation is awarded, the employee can not claim the payment of loss wages from the date of the dismissal until the court's or the committee's decision.

Remarks:
  • Art. 109 ECA.

Reinstatement available: Yes

Remarks:
  • Art. 107 ECA: If the court or the labour dispute committee establishes that termination of employment is void due to the absence of a legal basis or the non-conformity with law or nullified due to a conflict with the principle of good faith, it shall be deemed that the employment contract has not been terminated and therefore the employee is entitled to return to work. In such cases, the employee is entitled to the payment of loss wages form the time of the dismissal until the reintegration of his/her former position.

Preliminary mandatory conciliation: No

Remarks:
  • art. 3
    1) If possible, a disagreement arising from the employment relationship of an
    employee and employer is resolved by agreement of the employee and
    employer through the mediation of a representative of employees or a directing
    body of a union or federation of employees.
    2) In order to resolve a disagreement, an employer, in co-ordination with a
    representative of employees or a directing body of a union or federation of
    employees, may establish a conciliation committee, the membership, competence
    and procedures of which are determined by agreement of the employer and the
    representative of employees or directing body of a union or federation of employees.
    3) Attempts to resolve disagreements by agreement do not deprive the parties of the
    right of recourse to labour dispute resolution bodies in order to resolve a labour
    dispute.
    4) Parties have the right of recourse to a labour dispute resolution body without the
    mediation of a representative of employees or a directing body of a union or
    federation of employees if they find that a labour dispute cannot be resolved by
    agreement.
    Settling of

Competent court(s) / tribunal(s): ordinary courts; administrative body

Remarks:
  • There are no specialized labour courts in Estonia. All labour disputes lie within the jurisdiction of general courts. Disputes relating to termination of employment shall be heard by the court or a labour dispute committee (arts. 105-109 ECA).
    Labour dispute committees are independent, extra-judicial individual labour dispute resolution bodies which are established within the local branches of the Labour Inspectorate. They are composed of three members: the chairperson of the labour dispute committee and representatives of employees and employers (arts. 10-11 ILDRA)

Existing arbitration: No

Ethiopia - 2013    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 43(4) LP.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
* Contract of an indefinite period:
180 times the daily pay (6 months' wages) and a sum equal to the remuneration for the appropriate notice period.
* Fixed-term contract:
A sum equal to the wages the worker would have earned until the lawful end of his contract provided it does not exceed 180 days' wages.

Remarks:
  • Art. 43(4) LP.

Reinstatement available: Yes

Remarks:
  • Art. 43 LP.
    Reinstatement is mandatory in case of unfair dismissal. However, when dismissal is unlawful, the court may award compensation in lieu of reinstatement if it believes that the continuation of the employment relationship will give rise to serious difficulties.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • The labour division of the regional first instance court has jurisdiction over claims related to termination of employment: art. 138 1) a) LP.

Existing arbitration: No

Length of procedure: 60 day(s) (statutory)

Remarks:
  • The legislation foresees statutory time frames for adjudicating the case (Art. 138 and 139 LP)
    * First instance court decision: 60 days from the date the complaint was registered.
    * Appeal should be lodged within 30 days from the first instance decision and the appeal decision should be delivered within 60 days from the date of the appeal.

Finland - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See: sec. 2, chap. 12 ECA.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
* Groundless termination of employment: min. 3 months' pay and max. 24 months' pay.

* Failure to observe the procedural requirements applicable to economic dismissal: max. 30 000 EUR.

Remarks:
  • * Compensation for groundless termination of employment: sec. 2, chap. 12 ECA.
    The minimum amount of 3 months is not applicable to dismissals based on financial and production-related grounds or a reorganization procedure.
    For shop stewards and elected representatives, the maximum amount is 30 months' pay.

    In cases of discriminatory terminations, the compensation which would have been received for the same infraction under the Non-Discrimination Act (1325/2014) must be taken into account, when determining the compensation received. (According to sec. 24 of the Non-Discrimination Act, the compensation must be equitably proportionate to the severity of the act, taking into account the type, extent and duration of the infringement but also attempts of the offender to preclude or remove the consequences of the actions).

    In case the former employee has received unemployment allowances before being granted the compensation payment, up to 75% of these allowances payment can be deducted from the final sum, sec. 3, chap. 12 ECA.


    * Failure to observe the procedural requirements applicable to economic dismissal: sec. 62 ACU.

Reinstatement available: No

Preliminary mandatory conciliation: No

Remarks:
  • No statutory provision found.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • In Finland, individual labour disputes over rights are heard by ordinary courts as apposed to disputes connected with collective agreements which are dealt with by labour courts. (See Act on the Labour Court 646/19974)

Existing arbitration: No

Remarks:
  • No statutory provision found.

France - 2012    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Absence of serious and genuine cause:
The judge awards compensation which as a minimum shall amount to 6 months' wages.

Remarks:
  • See art. L 1235-3 LC.

    In addition, when the dismissal is justified by a serious and genuine cause but the employer fails to observe the prescribed procedure for individual dismissals, compensation awarded by the judge cannot exceed one month's wages (art. L 1235-2 LC).

Reinstatement available: Yes

Remarks:
  • Art. L 1235-3 LC :
    The judge can prescribe reinstatement in case of absence of a serious and genuine cause.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. L 1411-1 LC: conciliation takes place before the conciliation section of the labour court "Conseil des Prudhommes".

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. L 1411-1 LC

Existing arbitration: No

Length of procedure: 10 month(s)

Remarks:
  • This duration is not specific to litigation procedures on individual dismissal but includes all cases brought before the "Conseil des Prud'hommes" for the year 2009.
    It does not include appeal procedures.

    Source: http://emploi.france5.fr/emploi/droit-travail/conflits/66844361-fr.php (last accessed in February 2011)

% of dismissals out of the total number of disputes: 70 %

Remarks:
  • Statistics for 2007 - Source: Study of the French Ministry of Justice (2009)
    (See: http://www.cabinet-catry.com/statistiques-des-conseils-des-prud-hommes_ad30.html)

Gabon - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 75 LC (unfair dismissal).

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Unfair dismissal: free determination by the Court.

Remarks:
  • Art. 75 LC and 55 LC.

Reinstatement available: Yes

Remarks:
  • Only for workers' representatives: Art. 294 LC. Reinstatement is not available to workers not falling within this category.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 314 LC: Extra-judicial conciliation shall take place before the Labour Inspector before the claim is brought to the court.
    Art. 334 LC: Preliminary mandatory conciliation is part of the procedure before the Labour Court.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 318 LC.

Existing arbitration: No

Georgia - 2017    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 38.8 LC states that if the court voids the employer’s decision for termination of the labour agreement, under the court’s decision, the employer shall restore the person, whose labour agreement was terminated, to his/her original job or provide the person with an equal job or pay such a person the compensation in the amount fixed by the court.

Reinstatement available: Yes

Remarks:
  • Art. 38.8 LC states that If the court voids the employer’s decision for termination of the labour agreement, under the court’s decision, the employer shall restore the person, whose labour agreement was terminated, to his/her original job or provide the person with an equal job or pay such a person the compensation in the amount fixed by the court..

Preliminary mandatory conciliation: No

Remarks:
  • Art. 48(6) of the Labour Code: An individual dispute may be settled through conciliatory procedures and individual negotiations as well as through a court.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Ordinary courts have jurisdiction over individual labour disputes.

Existing arbitration: Yes

Remarks:
  • Art. 48(7) LC

Germany - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Sec. 10 PADA

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation shall not exceed 12 months' wages.
2 exceptions:
- up to 15 month's wages for workers aged over 50 and with at least 15 years of service,
- up to 18 months for workers aged over 55 and with at least 20 years of service

Remarks:
  • Sec. 10 PADA

Reinstatement available: Yes

Remarks:
  • If the Court finds that the dismissal lacks social justification, it will declare it void and therefore the employment relationship continues. However, it can be dissolved upon request of either party when continuation of employment is no longer tolerable. In such cases, the Court will award compensation (sec. 9 PADA).

Preliminary mandatory conciliation: Yes

Remarks:
  • Sec. 54 (1) PADA: preliminary conciliation before the Labour Court should take place within two weeks after the application has been filed.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Sec. 4 PADA and sec. 2 of the Federal Labour Court Act , 1953 (as last amended in 2013).

Existing arbitration: No

Length of procedure: 2.6 month(s)

Remarks:
  • Figures for 2016: they correspond to the average total length of procedure before the States (Länder) Labour Courts (first instance) for dismissal cases in Germany.
    The average duration of appeal proceedings is 6.5 months

    Source:
    Statistiches Bundesamt, destatis (Federal Statistic Office), Rechtspflege - Arbeitsgerichte 2016, Fachserie 10 Reihe 2.8, 2017, p. 47 and 89.

% of dismissals out of the total number of disputes: 53.1 %

Remarks:
  • Figure for 2016 = % of dismissal cases out of all labour disputes in Germany (States Labour Courts).

    Source:
    Statistiches Bundesamt, destatis (Federal Statistic Office), Rechtspflege - Arbeitsgerichte 2016, Fachserie 10 Reihe 2.8, 2017 p. 45 and 47. Link provided below under "scope of additional information".

Ghana - 2013    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 64 (2) c) LA.

Reinstatement available: Yes

Remarks:
  • Art. 64 (2) a) LA.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 64 LA.
    The competent body is the National Labour Commission. It shall exercise adjudicating and dispute settement functions in complete independence (art. 138 LA). Moreover, in settling an industrial dispute, the Commission shall have the same enforcing powers as the High Court and enjoy the same priviledges and immunities in regard to its proceedings (art. 139 LA).

Existing arbitration: Yes

Remarks:
  • Mediation: art. 154 LA.
    Arbitration: art. 157 LA.

% of dismissals out of the total number of disputes: 51.7 %

Remarks:
  • Figure for the year 2008.
    This figure includes:
    - Summary dismissals (21.2%)
    - Unfair terminations (23.9%)
    - Redundancy/lay-Off/ Severance pay (6.6%)

    Source: Annual Report of the National Labour Commission for the year 2008

Greece - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- If the dismissal constitutes an abuse of right: it will be declared null and void and the worker will be reinstated and receive back pay for the period between the dismissal and the court's decision. The worker can apply for the payment of severance pay in lieu of reinstatement.
- If the procedural requirements applicable to the dismissal of a worker under an contract of an indefinite duration are not observed (= severance pay, written notification), the dismissal is also considered null and void and the worker will be entitled to reinstatement + back pay. The employee can also claim the payment of severance pay in lieu of reinstatement.
- If the employee dismisses an employee in violation of the provision on special protection (i.e pregnant women, workers on annual leave, trade union officials), the dismissal will also be nullified by the Court.
- In the event of termination of a fixed-term contract without a serious reason, the employee will be entitled to compensation for the remaining period of the contract.

Remarks:
  • - Abusive dismissals: see art. 281 CC, which is the general provision prohibiting the abusive exercise of a legal right. This area has been developed by case law.
    - On non-compliance with the procedural requirements, see art. 5(3) of Act 3198/1955.
    - Termination of a fixed-term contract without a good reasons is regulated by art. 673 CC.
    - See also the remark below "workers enjoying special protection" under "Substantive requirements for dismissals".

Reinstatement available: Yes

Remarks:
  • As indicated above, reinstatement is the primary remedy for unfair dismissal.

Preliminary mandatory conciliation: No

Remarks:
  • No preliminary mandatory conciliation.

    "Articles 208 to 214 in Chapter One of the Code of Civil Procedure deal with the attempt at conciliation which may precede the filing of a lawsuit, although the mechanism is rarely used.
    According to the Code of Civil Procedure, in the case of individual labour disputes arbitration is forbidden. However, before the parties concerned bring the case before the courts, there is an opportunity for the Labour Inspectorate to intervene in an attempt to reconcile the worker and employer. The Labour Inspectorate may intervene in individual labour disputes following a written application/complaint made by the applicant to the Labour Inspectorate, which then convokes a tripartite meeting (Labour Inspectorate, employee and employer), during which the subject of the dispute is discussed, along with means of resolving it."
    See: Sofia Lampousaki, "Greece: Individual disputes at the workplace - alternative disputes resolution", Feb. 2010, available at the following:
    http://www.eurofound.europa.eu/eiro/studies/tn0910039s/gr0910039q.htm

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Complaints regarding the nullity of the dismissal shall be brought to the ordinary court within 3 months form the date to the dismissal (art. 6(1) of Act No. 3198/1955).Claimants must be heard within at most 60 days and cases must be settled by the courts after a maximum of 90 days after their submission to court, art. 621(3) Civil Procedure Code.
    Alternatively, if the employee decides to lodge a complaint to obtain severance pay, he/she shall do so within 6 months of the dismissal (art. 6(1) of Act No. 3198/1955).

Existing arbitration: No

Honduras - 2012    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 113 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In the employer fails to prove the existence of one of the just causes listed in art. 112 LC, and reinstatement is not ordered by the judge, the employer will be liable to pay the employee compensation of an amount equivalent to the indemnity payable in the event of unjustified dismissal (auxilio de cesantía) which varies according to the employee's length of service, as follows (art. 120 LC):
- the length of service is between 3 and 6 months: 10 days of salary,
- from six months to one year of service: 20 days of salary,
- after one year of continuous services: one month's salary for each year of service, up to a maximum of 25 months' salary.
However, according to article 120A LC, the cap is reduced to 15 months' salary in micro-enterprises, which are defined as enterprises with a maximum of 10 employees.
In addition, the employer shall pay the back wages from the date of the dismissal until the decision of the labour judge is final.

Remarks:
  • See art. 113 LC combined with art. 120 LC.
    On back wages, see art. 113 LC.

Reinstatement available: Yes

Remarks:
  • Art. 113 LC. Reinstatement is available is lieu of compensation for unfair dismissal if the employer fails to prove the existence of one of the just causes listed in art. 112 LC (i.e serious misconduct, violence, unjustified absence, inefficiency...).

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 750 LC: preliminary conciliation is carried out by labour judge.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Arts. 666, 679 LC.
    First instance judges are the "Juzgados de Letras del Trabajo".
    Appeals are heard by the "Cortes de Apelaciones del Trabajo".

Existing arbitration: No

Hungary - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • • Sections 82 and 83 LC
    The employer shall be liable to provide compensation for damages resulting from the wrongful termination of an employment relationship. In addition, the employee is entitled to severance pay as well, if: a) his employment relationship was wrongfully terminated by means other than notice; or b) he did not receive any severance pay at the time his employment relationship was terminated.

    In lieu of Subsections compensation described above, the employee may demand payment equal to the sum of his monthly pay due for the notice period when his employment is terminated by the employer.

    At the employee’s request the court shall reinstate the employment relationship:
    a) if it was terminated in violation of the principle of equal treatment;
    b) if it was terminated in violation of statutory protection against dismissals concerning specific workers’ groups; (...)
    e) if the employee successfully challenged the termination of the employment relationship by mutual consent or his own legal statement therefor.

    • As regards entitlements arising after the employment relationship was reinstated in connection with the duration of employment, the time between the termination (cessation) of the employment relationship and the day of reinstatement shall be regarded as time spent in employment. The employee shall be compensated for any lost wages, other benefits and for damages in excess thereof. The employee’s absentee pay shall be taken into consideration as lost wages.

Compensation for unfair dismissal - Are there legal limits?: Yes

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation (in lieu of reinstatement): max. 12 months' pay

Remarks:
  • Sec. 82 (2) LC

Reinstatement available: Yes

Remarks:
  • • Sec. 83 of the LC, see in detail above.

Preliminary mandatory conciliation: No

Remarks:
  • • However, the parties can resort to extra-judicial conciliation provided it is so stipulated in a collective or an individual agreement (sec. 288 of the LC). However, such an agreement may have no effect on the time limits for asserting workers’ rights specified in section 287 of the LC.

Competent court(s) / tribunal(s): labour court; administrative body

Remarks:
  • • Administrative and labour courts have jurisdiction in the first instance over disputes arising from the employment relationship. (Sec. 20(2) of Act CXXX of 2016 on the Code of Civil Procedure). Appeals are heard by tribunals (in every county); revision of final judgements of tribunals are heard by the Kúria (Act CLXI of 2011 on the Organization and Administration of the Courts, sec. 21(1), 24(1)).

Existing arbitration: No

Remarks:
  • • No statutory provision. Arbitration mechanisms are provided by private entities, and can be used on a voluntary basis.

India - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Sec. 11A of the IDA states:
    "Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
    Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter"

Compensation for unfair dismissal - Are there legal limits?: No

Reinstatement available: Yes

Remarks:
  • Sec. 11A IDA

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • Sec. 7 IDA

Existing arbitration: Yes

Remarks:
  • Sec. 10A IDA reads as following:

    "Voluntary reference of disputes to arbitration-(1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under section 10 to a Labour Court or Tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court or Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement.

    (1A) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purpose of this Act.]

    (2) An arbitration agreement referred to in sub-section (2) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.

    (3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate Government shall, within '[one month] from the date of the receipt of such copy, publish the same in the Official Gazette.

    (3A) Where an industrial dispute has been referred to arbitration and the appropriate Government is satisfied that the persons making the reference represent the majority of each party, the appropriate Government may, within the time referred to in sub-section (3), issue a notification in such manner as maybe prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators.

    (4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.

    (4A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3A), the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.

    (5) Nothing in the Arbitration Act, 1940 (10 of 1940) shall apply to arbitrations under this section."

Burden of proof: worker

Remarks:
  • There is no presumption in favour of employment status. The burden of proof lies on the person claiming the status of “workman” under the Act (See: Supreme Court, Workmen of Nilgiri Cooperative Marketing Society)

Indonesia - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • No compensation foreseen in the MA.
    A ruling of unfair dismissal entails reinstatement. (see art. 170 MA, also art. 153 (2) on dismissal based on prohibited grounds)

Reinstatement available: Yes

Remarks:
  • Art. 153 (2) MA: any termination based on prohibited grounds shall be declared null and void. The employer must then reemploy the affected worker.

Preliminary mandatory conciliation: Yes

Remarks:
  • Pursuant to Act No. 2 of 2004 concerning Industrial relations settlements, the parties must first attempt to settle their dispute trough bipartite negotiations, and if negotiations fail, through conciliation or mediation before the dispute can go to the Industrial Relations Court.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Pursuant to Act No. 2 of 2004 concerning Industrial relations settlements, the Industrial Relation Court is competent if the parties did not reach any agreement through negotiations, conciliation or mediation.

Existing arbitration: Yes

Remarks:
  • Pursuant to Act No. 2 of 2004 concerning Industrial relations settlements, the Industrial Relation Court is competent if the parties did not reach any agreement through negotiations, conciliation or mediation.

Length of procedure: 50 day(s) (statutory)

Remarks:
  • The Industrial Relations Court (IRC) must issue a verdict within 50 days as of the date of the first court session (art. 103 IRDSA).
    An appeal can be lodged before the Supreme Court IRC decision within 7 days, which should issue its decision within 20 days (art.115 IRSDA).

    Note that the prior bipartite negotiations and conciliation/mediation shall be carried out within 30 days each.

Iran, Islamic Republic of - 2010    

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Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
No compensation in lieu of reinstatement: when the dismissal is unlawful, the worker shall be reinstated and the employer shall be ordered to pay his or her remuneration as of the date of his or her dismissal.

Remarks:
  • Secs. 20 and 165 LC.

Reinstatement available: Yes

Remarks:
  • In the case of unlawful dismissal, the worker shall be entitled to apply to the Board of Inquiry within 30 days. If the employer is unable to prove that the dismissal is based on a valid reason, the employer shall be obliged to reinstate the worker in his or her job (sec. 20, LC).

Preliminary mandatory conciliation: Yes

Remarks:
  • In the event of a dispute between an employer and a worker, a settlement shall, in the first instance, be sought by direct compromise between the parties (sec. 157 LC).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Where no compromise can be reached, the dispute may be referred to, examined and settled by the Board of Inquiry (sec. 157, LC).
    Note that a worker who is to be dismissed in accordance with the decision of a Board of Inquiry shall be entitled to appeal the decision to the Disputes Board (sec. 158, LC).

Existing arbitration: No

Italy - 2017    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):

Remarks:
  • Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
    1) For employers with more than 15 employees (or five in the agricultural sector) in one production unit, or more than one in the same municipality, and employers employing more than 60 workers wherever located.

    See: art. 18 Act 300/1970 (workers' statute) as amended by Art 1.42 of Law 92/2012. Before this amendment, mandatory reinstatement of the dismissed employee and payment of damages for the period between the dismissal and the reinstatement but not less than five months' pay applied to all cases of unfair dismissal issued by employers with more than 15 employees (or five in the agricultural sector) in one production work unit, or more than one in the same municipality, and employers employing more than 60 workers wherever located.

    In case of unfair dismissal (lack of justification, discriminatory, irregular procedures):
    Discriminatory dismissal or based on prohibited grounds - the applicable sanctions: Mandatory reinstatement of the dismissed employee and payment of damages for the period between dismissal and the reinstatement but not less than five months' pay. (Art. 18.1 of WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Unlawful disciplinary dismissals: because of the lack of the elements which characterize the employers' claim (INSUSSISTENZA DEL FATTO CONTESTATO) or because the sanction applied could have been other than dismissal - the applicable sanctions: the court will order the employer to pay the employee an indemnity of not more than 12 months' salary + reinstatement. (Art. 18.4 of WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Unlawful disciplinary dismissals because the judge finds that "other" elements which constitute disciplinary dismissal are lacking - the applicable sanctions: compensation 12 to 24 months salary. (Art. 18.5 of the WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Because the procedure has been violated (*violation of the art. 2.2 of the Act 604/1966, of the art. 7 of the Act 604/1966; and art. 7 Statuto Lavoro)- the applicable sanctions: the judge confirms the termination of employment and awards compensation from 6 to 12 months salary, unless the judge if requested by the worker, verifies that the termination is not justified in which case art. 18.1 or 18.4 or 18.5 or 18.7 workers as amended by art. 1.42b of the Act 82/2912 are applied. (art. 18.6 of the WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    Unlawful economical dismissal - the applicable sanctions: If the reason for the dismissal is manifestly in-existent, the judge can apply the sanction provided for in article 18.4 WS as amended b art. 1.42b of the Act 82/2912. In other unlawful economical dismissal cases the judge can apply the sanction imposed by the art. 18.5 as amended by by art. 1.42b of the Act 82/2912. (Art. 18.7 of the WS 300/70 as amended by art. 1.42b of the Act 82/2912)
    In the case of an unjustified dismissal because of physical or mental reasons related to the worker or because of the violation of the art. 2010.2 of the Civil Code the judge will apply the sanction provided for in the art. 18.4 WS 300/70 as amended by art. 1.42b of the Act 82/2912)

    2) For establishments with up to 15 employees (or 5 in the agricultural sector):
    * Rehiring (new contract) or if refused by the employer, compensation ranging from 2,5 to six months' pay (depending on job tenure and firm size), up to 10 months pay for more than 10 years of service, and up to 14 months for more than 20 years of service. However, when the dismissal is held to be discriminatory or however based on prohibited grounds or retaliatory or in any other case in which the law provides the dismissal to be held null and void mandatory reinstatement of the dismissed employee and payment of damages for the period between the dismissal and the reinstatement but not less than five months' pay would apply.
    See: art. 8 Act 604/1966.



Reinstatement available: Yes

Remarks:
  • Depending on the number of employees and/or the nature of irregularity affecting the dismissal as previously mentioned reinstatement can be either mandatory or optional: art. 18 Act 300/1970 Act (workers' statute) and art. 8 Act 604/1966.

Preliminary mandatory conciliation: Yes

Remarks:
  • Conciliation is optional.

    Since 2012, pursuant to Art.7, Law 604/1966 as amended by Art. 1.40 of Act 92/2012,, employers with more than 15 employees (or five in the agricultural sector) in one production work unit, or more than one in the same municipality, and employers employing more than 60 workers wherever located, have to notify public bodies (Direzione Territoriale del Lavoro) when a dismissal for justified objective reason is contemplated, in order to attempt an amicable settlement between the parties.

    Art. 7.4 of decree 76/2013 specified that this does not apply to dismissal connected to absence for work because of illness or injury or to other similar cases.

    Conciliation is also promoted in the art.6.1 of the Legislative decree 23/2015. This decree is applicable to the workers who are hired with an employment contract of indefinite duration. If the worker opts for the conciliation the employer may offer him/her within 60 days from the dismissal an amount equal to one month’s salary for each year of service, and a minimum of 2 to a maximum of 18 months salaries, not subject to taxation.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 413 Civil Procedure Code.
    The labour court "giudice del lavoro" is integrated into the organization of the general civil court system, but follow special procedures.

Existing arbitration: Yes

Remarks:
  • Art. 412-ter Civil Procedure Code: arbitration must be foreseen by a collective agreement.

Length of procedure: 23 month(s)

Remarks:
  • As of 2004, for first instance cases
    (26 months for appeal cases)
    Source: http://www.corteappellocatania.it/formazione/051007/durata.pdf, p. 3
    citing the 2006 report of the European Commission for the Efficiency of Justice : http://www.coe.int/t/dghl/cooperation/cepej/default_en.asp)

    Art. 6 of the act 604 /1966 as amended by the art. 32.1 of the Act 183/2010 as amended by the art. 1.38 of the Act 82/2012, states that any type of dismissal must be claimed from the employer within 60 (*this however does not have to be respected as you can go to the judge directly) days from the moment of the notification. In this case 60 days is a deadline for giving a notification to the employer that you would like to challenge his/hers decision on termination. From the moment the employer is notified, a new deadline starts within which a worker has to go to the judge (180 days deadline). Before 2012 reform the 180 days deadline was 270 days deadline.

Japan - 2018    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Unjustified dismissals are null and void. Consequently, if a dismissal is held to be unjustified, the employment relationship will always continue. The employee will only be entitled to receive his or her normal wages for the period between the dismissal and the reinstatement.

Reinstatement available: Yes

Remarks:
  • See art. 16 LCL.This provision reads as follows: "A dismissal shall, if it lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, be treated as an abuse of rights and be invalid".

Preliminary mandatory conciliation: Yes

Remarks:
  • Under the new Labour Tribunal System, the Labour Tribunal Committee initially tries to resolve labour disputes through conciliation and in the case of its failure it proceeds to a Labour Tribunal procedure.
    It is also

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • Ordinary courts have had traditionally exclusive jurisdiction over claims of unfair dismissal.
    However, pursuant to the Labour Tribunal Law (Act No 45 of 2004 - in force since 2006), a Labour Tribunal system was established. The law establishes Labour Tribunal Committee (LTC) in Districts Court consisting of a judge and two independent experts in labour relations. The committee initially tries to resolve labour disputes through conciliation and mediation and in the case it fails to do so, it then proceeds to the adjudication of the case pursuant to the Labour Tribunal procedure. The Labour Tribunal procedure should be rapid and conclude after a maximum three sessions. The decision of the Labour Tribunal has the force of settlement in the court, unless either party raises an objection. When an objection is raised, the Labour Tribunal procedure is transformed into a normal judicial process pending at the District Court, in which the Labour Tribunal has been set up.

Existing arbitration: Yes

Remarks:
  • Under the Labour Tribunal System, the Labour Tribunal Committee (LTC) attempts to settle the individual labour dispute through mediation in its second or third session and if one of the parties rejects it, the LTC will issue a judicial decision following the Labour Tribunal procedure. (See Labour Tribunal Act - No. 45 of 2004).

Jordan - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 25 LL sets out legal limits on the compensation to be paid to the employee in the event of arbitrary dismissal (see below).
    As amended in 2010, Article 25 LL provides that “If a worker institutes judicial proceedings within 60 days of his dismissal, and the competent court finds the dismissal arbitrary and in violation of the provisions of this Code, the court may order the employer to reinstate the worker in his former job or pay him compensation equal to half of the monthly remuneration for each year of service provided that the amount shall not be less than the worker's remuneration for two months, in addition to compensation in lieu of notice and other entitlements stipulated in sections 32 and 33 of this Code, and the compensation shall be calculated on the basis of the last remuneration he received.”

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation following any dismissal which is arbitrary and violates the provisions of the LL shall be half of the monthly remuneration for each year of service provided that the amount shall not be less than the worker's remuneration for two months, in addition to compensation in lieu of notice and other entitlements stipulated in the law (including the end of service termination).

Remarks:
  • Art. 25, as amended in 2010 LL.
    New in 2010: prior to the 2010 amendment, compensation was set as follows: at least 3 months' wages but not more than 6 months' wages.

Reinstatement available: Yes

Remarks:
  • Art. 25 LL: remedy for arbitrary and unlawful dismissal shall be either reinstatement or compensation.

Preliminary mandatory conciliation: No

Remarks:
  • No statutory provision found in the legislation reviewed.
    Preliminary conciliation is only foreseen in the settlement of collective labour disputes (see art. 120-123 LL)

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 137 A) LL: The Magistrate Court (ordinary civil court) exercises jurisdiction over individual labour disputes with the exception of disputes related to wages in the areas where there is no "Remuneration Authority".

    Under the Jordanian labour disputes settlement system, the labour court is an ad hoc organ, constituted by three regular judges delegated by the judicial council for this purpose upon the requirement of the minister of labour. It is only competent to hear collective labour disputes, and will do so if the conciliation board has failed to settle the case (art. 124 LL).

Existing arbitration: No

Remarks:
  • No statutory provision found in the legislation reviewed.

Length of procedure: 3 month(s) (statutory)

Remarks:
  • Art. 137 A) LL: the settlement of the case shall be made within three months as from the day it has been referred to the Court.
    Appeal shall be lodged within 10 days and decided by the Court of appeal within 30 days. (art. 137 B) LL)

Kazakhstan - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 161 of the Labour Code states that the employee shall be paid all wages between the date of dismissal and the date of reinstatement, but not more than six monthly wages.

Compensation for unfair dismissal - Are there legal limits?: Yes

Remarks:
  • Art. 161 of the Labour Code states that the employee shall be paid all wages between the date of dismissal and the date of reinstatement, but not more than six monthly wages.

Reinstatement available: Yes

Remarks:
  • Art. 161 of the Labour Code

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 159 of the Labour Code states that the individual labour disputes are considered by the conciliation commissions and/or courts.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 159 of the Labour Code

Korea, Republic of - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 28 LSA
    Art. 82 Trade Union and Labor Relation Adjustment Act (TULRAA)

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Damages in lieu of reinstatement should not be less than the salary the worker would have earned if he had not been dismissed.

Remarks:
  • Art. 30 (3) LSA

Reinstatement available: Yes

Remarks:
  • Art. 30 (1) LSA

Preliminary mandatory conciliation: No

Remarks:
  • Preliminary conciliation is not mandatory. However, pursuant to art. 16-3 (1) of the Labor Commission Relations Act, the Labor Relations Commission may recommend conciliation or present a conciliation proposal at the request of one of the parties concerned or on its own initiative.

Competent court(s) / tribunal(s): labour court

Remarks:
  • The competent body to hear and adjudicate rights and interests disputes arising out of the employment relationship, including unfair dismissals is the Labor Relations Commission. It is a quasi-judicial governmental body which is affiliated to the Ministry of Labor and composed of tripartite representatives: workers, employers and public interests.
    See art. 28 LSA, 82 TULRAA, and the Labor Relations Commission Act of 1997, as last amended in May 2007.

Existing arbitration: Yes

Remarks:
  • No arbitration or mediation foreseen for disputes related to the LSA, which is the main piece of legislation on dismissal.
    However, arbitration and mediation are only foreseen for disputes related to the Trade Union and Labor Relations Adjustment Act (discrimination on the grounds of trade union activities): art. 47 to 70 of the TULRAA. In such cases, arbitration and mediation can be conducted by the Labour Relations Commission or by private persons.

Kyrgyzstan - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 423 LC

    However in the cases of dismissal without a legal basis or with a violation of the established procedure for dismissal or illegal transfer to another job, the court is entitled, at the request of the employee, to make a decision to compensate the employee for the moral harm caused to him by such actions. The amount of this compensation is determined by the court.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation shall not be less than 12-month average wages.

Remarks:
  • Art. 423 LC

Reinstatement available: Yes

Remarks:
  • Art. 423 LC

Preliminary mandatory conciliation: No

Remarks:
  • Art. 421 LC

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 421 LC

Existing arbitration: No

Lesotho - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 73 LC: Compensation is awarded if the court decides that reinstatement is impracticable for the employer or if the employee does not wish to be reinstated. The amount of compensation shall be such amount as the court considers just and equitable. Mitigation of loss is the main criterion to decide the amount of compensation.

Reinstatement available: Yes

Remarks:
  • Art. 73 (1) LC: Reinstatement is the common remedy unless the employee does not wish to be reinstated of the Court (or the arbitrator) considers it to be impracticable.

Preliminary mandatory conciliation: Yes

Remarks:
  • See art. 227 (4) and (5) LC as amended in 2000.

    Depending on the reason for dismissal, disputes are resolved either by the Labourt Court, or by arbitration at the DDPR.
    In both cases, extra judicial prior conciliation is foreseen:
    - Before a dispute is referred to the Labour Court by Directorate of Dispute Prevention and Resolution (DDPR), the Director of the DDPR shall appoint a conciliator to attempt to resolve the dispute by conciliation (art. 227 (5) LC).
    - Prior to the resolution of a dispute by arbitration, the arbitrator appointed by the Director of the DDPR shall attempt to resolve the dispute by conciliation (art. 227 (4) LC).

    On the process of conciliation, see: art. 228 B LC (as amended in 2000)

Competent court(s) / tribunal(s): labour court

Remarks:
  • The 2000 Labour Code Amendment Act introduced important changes in the LC with regards to dispute settlement.
    Pursuant to article 226 LC (amended by article 25 of the 2000 Amendment Act), jurisdiction to resolve dismissal disputes of right is now shared between the Labour Court and arbitration, as follows:
    - The Labour Court shall have exclusive jurisdiction in disputes concerning an unfair dismissal if the reason for the dismissal is (art. 226 (1) LC):
    i) for participation in a strike;
    ii) as a consequence of a lock-out; or
    iii) related to the operational requirements of the employer.
    Note that the Labour Court also has exclusive jurisdiction on unfair labour practices and on disputes concerning the application or interpretation of any provision of the Labour Code or any other labour law unless the disputes concerns a matter that shall be exclusively resolved by arbitration as provided in art. 226 (2) LC.
    - A dispute concerning an unfair dismissal for any reason other than a reason referred to above (see i), ii), iii)) shall be resolved by arbitration. Therefore, a dispute concerning dismissal for reasons relating to the conduct of the employee or its capacity is to be solved by an arbitrator.
    In addition, arbitration applies to : a dispute referred by agreement; a dispute concerning the application of a collective agreement, a breach of a contract of employment, a wages order and a dispute concerning the underpayment of any monies due under the Labour Code. (art. 226 (2) LC)
    - Any dispute should be firstly referred to by any party to the Directorate of Dispute Prevention and Resolution (DDPR) in charge of referring the dispute to the competent body (Labour Court or arbitrator) in accordance with the above-mentioned rules (art. 227 LC). However, would the Director of the DDPR consider that a dispute that concerns matters for which arbitration is foreseen also concerns matters that fall within the jurisdiction of the Labour Court, he could refer the case to that Court (art. 226 (3) LC).
    In addition, the Labour Court can always review the arbitration award on application by one of the parties.

Existing arbitration: Yes

Remarks:
  • See article 226 and 227 LC (as amended in 2000),
    Mandatory arbitration:
    - A dispute concerning an unfair dismissal for any reason other than a reason referred to above (see i), ii), iii)) shall be resolved by arbitration. Therefore, a dispute concerning dismissal for reasons relating to the conduct of the employee or its capacity is to be solved by an arbitrator.
    - In addition, arbitration applies to : a dispute referred by agreement; a dispute concerning the application of a collective agreement, a breach of a contract of employment, a wages order and a dispute concerning the underpayment of any monies due under the Labour Code. (art. 226 (2) LC)

Luxembourg - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. L 124-12 (1) LC: free determination by the Court when dismissal is not justified by genuine and serious reasons.
    However, in case of non-respect of a fundamental procedural requirement, compensation awarded by the judge shall not exceed 1 month's wages.: art. L 124-12 (3) LC.
    ______________________
    Art. L. 124-12 du Code du travail:
    (1) Lorsqu’elle juge qu’il y a usage abusif du droit de résilier le contrat de travail à durée indéterminée, la juridiction du travail condamne l’employeur à verser au salarié des dommages et intérêts compte tenu du dommage subi par lui du fait de son licenciement. (...)
    (3) La juridiction du travail qui conclut à l’irrégularité formelle du licenciement en raison de la violation d’une formalité qu’elle juge substantielle doit examiner le fond du litige et condamner l’employeur, si elle juge que le licenciement n’est pas abusif quant au fond, à verser au salarié une indemnité qui ne peut être supérieure à un mois de salaire. L’indemnité visée à l’alinéa qui précède ne peut être accordée lorsque la juridiction du travail juge le licenciement abusif quant au fond.

Reinstatement available: Yes

Remarks:
  • Art. L 124-12 (2) LC : the judge can prescribe reinstatement if requested by the worker and approved by the employer.
    In some cases, reinstatement is mandatory if requested by the worker (art. L 124-12 (4) LC).
    _________________________
    Art. L. 124-12 du Code du travail:
    (2) En statuant sur les dommages et intérêts attribués au salarié licencié abusivement, la juridiction du travail peut, à la demande du salarié formulée en cours d’instance et lorsqu’elle juge réunies les conditions pour une continuation ou une reprise de la relation de travail, recommander à l’employeur de consentir à la réintégration du salarié en réparation de son licenciement abusif.
    La réintégration effective du salarié avec maintien de ses droits d’ancienneté libère l’employeur de la charge des dommages et intérêts qu’il a été condamné à lui verser en réparation de son licenciement abusif.
    L’employeur qui ne souhaite pas consentir à la réintégration du salarié licencié abusivement lui recommandée par la juridiction du travail peut
    être condamné, à la demande du salarié, à compléter les dommages et intérêts visés au paragraphe (1) par le versement d’une indemnité correspondant à un mois de salaire. (...)
    (4) Dans les cas de nullité du licenciement prévus par la loi, la juridiction du travail doit ordonner le maintien du salarié dans
    l’entreprise lorsqu’il en fait la demande. Sont applicables, dans ces cas, les dispositions des articles 2059 à 2066 du Code civil. (...)

Preliminary mandatory conciliation: No

Remarks:
  • Mandatory conciliation is only foreseen for collective disputes: Art. L. 164-1 LC.
    _________________
    La conciliation obligatoire n'est prévue que pour les litiges collectifs : Art. L. 164-1 LC

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. L 124-11 (2) LC.

Existing arbitration: No

Macedonia, The Former Yugoslav Republic of - 2017    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 102.5 LRA, with the 2012 amendment has been renumbered as Art. 102.4 LRA and modified to state that when the court establishes that the dismissal was unlawful and it is unacceptable for the employee to be reinstated, the court, at the employee's request, shall specify the date of termination of employment and will oblige the employer to pay wages in accordance with paragraph 2 of the same article. Art. 102.2 LRA, also brought with the 2012 amendment, states that in addition to the return to work, the employer shall pay the employee the gross salary which the employee would have taken if he/she was at work in accordance with the law, the collective agreement and employment contract, reduced by the amount of income that the employee has achieved on the basis of work after the termination of employment.
    According to the previous regulation before the 2012 amendment, when the court would establish that the dismissal was unlawful and if the employee would find unacceptable the reinstatement, the court, at the employee's request, had to fix the date of termination of employment and award compensation depending on the employee's length of service, age, social status and family responsibilities.(previously art. 102(5)LRA).

Reinstatement available: Yes

Remarks:
  • Art. 101(1) LRA: if the Court rules that the employment contract was unlawfully terminated, the employee must be reinstated if he/she so requests.

Preliminary mandatory conciliation: No

Remarks:
  • No preliminary mandatory conciliation.
    However, the LRA provides that in the event of dismissal with notice, the employee is authorised to file a complaint to the management body or to the employer within 8 days from receipt of the dismissal decision. The employer must reply to the complaint within 8 days, and during that period the execution of the dismissal decision is suspended. If the employee is not satisfied with the response he/she may initiate a dispute before the competent court (art. 93 LRA).
    In case of termination of employment by the employer without a notice period (summary dismissal), the employee is entitled to complain to the management body or to the employer within 8 days from the receipt of the decision on the dismissal. The employer or the management body must give the response to the complain in the period of 8 days. In case the employee is not satisfied with the response, he/she has a right to initiate proceedings before the competent court within 15 days. In this case, while the procedure is ongoing, the execution of the dismissal decision is not suspended (Art. 91 LRA).

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 91 and 93 LRA ("competent court").

Existing arbitration: Yes

Remarks:
  • Art. 29 of the Law on peaceful resolution of labour disputes stipulates that individual labour disputes concerning termination of employment can be settled through arbitration. The arbitration award concerning an individual labour dispute shall be issued within 30 days form the opening of the hearings, which shall start within 3 days of the submission of the case (arts. 33 and 35 of the above-mentioned law).

Madagascar - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 20 LC.

Reinstatement available: No

Remarks:
  • The only remedy available for unfair dismissal ("licenciement abusif") is the payment of damages.

Preliminary mandatory conciliation: Yes

Remarks:
  • - Art. 207 LC: The dual mission of the labour jurisdiction is to settle the dispute by conciliation or adjudicate if conciliation fails.
    No further information in the LC as to the conciliation process before the labour tribunal.
    - In addition, preliminary extra judicial conciliation is available before the Labour Inspector if requested by either party. Such preliminary settlement is not mandatory if the employment relationship has been terminated (see Arts. 199 and 200 LC).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 205 LC.

Existing arbitration: No

Malawi - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 63(4) and (5) EA. The amount of compensation shall be such amount as the court considers just and equitable in the circumstances. However, statutory minimum thresholds are foreseen in art. 63 (5) of the EA.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation for unfair dismissal shall not be less than:
- 1 week's pay for each year of service for a worker who has served for not more than 5 years;
- 2 weeks' pay for each year of service for a worker who has served for more than 5 and less than 10 years;
- 3 weeks' pay for each year of service for a worker who has served for more than 10 years and not more than 15 years;
- 1 month's pay for each year of service for a worker who has served for more than 15 years.

Remarks:
  • Art. 65 (5) EA.
    The Act foresees an additional amount to be awarded by the Court when dismissal was based on prohibited grounds.

    Note that according to art. 65 (6) EA, if an order of reinstatement or re-engagement made by the Court is not complied with by the employer, the employee is entitled to an award equivalent to 12 weeks' wages, in addition to a compensatory award.

Reinstatement available: Yes

Remarks:
  • Art. 63 (1) a) EA.
    When deciding which remedy to award, the Court shall first consider the possibility of ordering reinstatement (art. 63 (2) EA).

Preliminary mandatory conciliation: Yes

Remarks:
  • Prior to the settlement of the dispute before the Court, the matter is lodged to a Regional/District Labour Officer before a Labour Officer for conciliation: art. 62, 64 EA and art. 44(1) LRA. This preliminary phase of extra-judicial conciliation is compulsory for the parties.

    In addition, preliminary conciliation before the Registrar of the Industrial Relations Court: Rule 5 (3),(4) (5) of the Industrial Relations Court (Procedure) Rules, 1999.
    Conciliation is carried out by the Registrar, if requested by the parties or if directed by the Court to do so.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 62(1), 64 and 65 EA.
    See also the part on dispute settlement (art. 42-45) of the Labour Relations Act, 1996

Existing arbitration: No

% of dismissals out of the total number of disputes: 65 %

Remarks:
  • Figure calculated on the basis of the statistics provided in the Annual Report of the Industrial Relations Court of Malawi for the period between July 2007 and June 2008.
    The figures represents the percentage of disputes pertaining to unfair dismissals out of the total number of disputes disputes registered by the "Principal registry" and the "Lilongwe Registry".

Malaysia - 2018    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • The IRA does not expressly refer to legal limits (see provisions on the court's award: sec. 20 (2) and (3) and 30 IRA).

Reinstatement available: Yes

Remarks:
  • See sec. 20 1) and 33 b) IRA.

Preliminary mandatory conciliation: Yes

Remarks:
  • The employee who considers to have been dismissed without "just cause or excuse" first has to make representations to the Industrial Relations Department for reinstatement. If no settlement, including by conciliation, is possible, the Department will report the matter to the Minister, who may refer the matter to the Industrial Court (sec. 20 IRA)

Competent court(s) / tribunal(s): labour court

Remarks:
  • The judicial body competent to hear cases of unfair dismissal is the industrial court (sec. 20 (3) and 30 IRA)
    The employee who considers to have been dismissed without "just cause or excuse" first has to make representations to the Industrial Relations Department for reinstatement. If no settlement, including by conciliation, is possible, the Department will report the matter to the Minister, who may refer the matter to the Industrial Court (sec. 20 IRA)

    Alternatively, an employee can bring a civil action for damages in respect of wrongful dismissal before the civil courts. However, a decision issued by the Industrial Court on unfair dismissal shall operate as a bar to any action for damages by the employee in any court in respect of wrongful dismissal.(sec. 20 (4) IRA).

Existing arbitration: No

Length of procedure: 30 day(s) (statutory)

Remarks:
  • Sec. 30 (3) IRA: with respect to unfair dismissal, the court shall make its award without delay and where practicable within 30 days from the day the case was referred to it.

Mexico - 2010    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 48 FLA

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Art. 50 FLA. Compensation for unfair dismissal consists of the following:

- if the employment relationship is for a specified period of less than one year, an amount equal to the total amount of remuneration payable for one-half of the entire period of employment; if the employment relationship lasted for more than one year, six months' wages for the first year of service plus 20 days' wages for each additional year of service;

- if the employment relationship is for an unspecified period the compensation consists of 20 days' wages for each year of service

- in addition to the compensation referred to in the preceding clause, three months' wages plus the entire remuneration payable in respect of the period from the date of dismissal to the date on which the compensation is paid.

Remarks:
  • Art. 50 FLA.

Reinstatement available: Yes

Remarks:
  • Art. 48 FLA: The worker may apply to a Conciliation and Arbitration Board for reinstatement in the post occupied or for compensation in the form of three months¿ wages, at his or her choice.

    Under art. 49 of the FLA, the employer may, in the following cases, be released from the obligation to reinstate the worker by paying the compensation referred to in art. 50:

    in the case of workers who have been employed for less than one year in the undertaking;
    if sufficient evidence is furnished to the satisfaction of the Conciliation and Arbitration Board that the worker on account of the work performed or the nature of the work is in direct and permanent contact with the employer and the Board is of the opinion, taking into consideration all the circumstances of the case, that continuation of the work is impossible;
    in the case of employees in a position of trust;
    in domestic service; and
    in the case of casual workers.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 123 (A)( XX)of the Mexican Constitution, 58 FLA.
    In Mexico, employment disputes are heard by the Conciliation and Arbitration Board (Junta de Conciliación y Arbitraje). They can be heard by the Federal or Local board according to distribution of competencies (Art. 621 FLA).

    This is a tripartite body that exercises jurisdictional functions. See art. 605ff for composition and structural organization. Note that this was modified in November 2012.

Existing arbitration: No

Moldova, Republic of - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 90 LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation for illegal dismissal includes:
1) Damages for the moral prejudice: fixed by the court but shall amount to at least to 1 month' pay.
Moreover, in lieu of reinstatement, additional compensation is due amounting at least to 3 months' pay.

2) Compensation for extra expenses (expert consultation, court costs...)
3) Not less than the the average pay for the period of absence to work

Remarks:
  • Art. 90 LC

Reinstatement available: Yes

Remarks:
  • Art. 89 LC

Preliminary mandatory conciliation: No

Remarks:
  • No statutory provision in the legislation reviewed.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 355 LC

Existing arbitration: No

Length of procedure: 40 day(s) (statutory)

Remarks:
  • Art. 355 LC: the court must convoke the parties within 10 days from the date of the registration of the application and decide on the case within 30 days.

Mongolia - 2017    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
No statutory compensation following unlawful dismissal: reinstatement is the only remedy provided in the LC.
Any reinstated employee will be entitled to back pay

Remarks:
  • Art. 69 LC on back pay.

Reinstatement available: Yes

Remarks:
  • Art. 36.1.2 LC.

Preliminary mandatory conciliation: No

Remarks:
  • No statutory preliminary mandatory conciliation for individual labour disputes.
    (However, collective labour disputes shall be first submitted to "intermediaries" for conciliation: see art. 117 LC).

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Individual labour disputes are either settled by the Labour Dispute Settlement Commission or by ordinary courts. According to art. 128.1.2 LC, ordinary courts have exclusive jurisdiction over wrongful dismissal complaints (art. 128 LC). Any such dispute shall be referred to the court within 1 month from the receipt of the employer's dismissal decision.

Existing arbitration: No

Remarks:
  • Arbitration is only available for the settlement of collective labour disputes (see: art. 118 LC and The Labour Administration Rules of 2001)

Montenegro - 2017    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • New in Dec. 2011: While there were no provisions on compensation in the 2008 LL, the amendments passed in December 2011 introduced new rules on compensation to be awarded to an employee in the event of unfair and unlawful dismissal (Art. 143(4)(5)(6) LL. (see below)

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In the event of unlawful or unjustified dismissal, the employee shall be entitled to a compensation of financial and non-financial damage in addition to reinstatement, as follows:
- Compensation for financial damages amounts to the lost wages and other income the employee would have received if she/he had been employed and the contributions for mandatory social insurance. Earnings realized by the employee based on the employment contract upon termination of employment shall be deducted by the aforementioned amount for mandatory social insurance.
- In addition, the Court may award compensation for non-pecuniary damages if its rules that dismissal resulted in violation of the employee's rights of personality, honour, reputation and dignity, the amount of which shall be freely determined by the Court.

Remarks:
  • Article 143d(3)(4)(5) LL. Those articles have been introduced into the Labour Law by the amendments adopted in December 2011.

Reinstatement available: Yes

Remarks:
  • Art. 143d LL
    New in Dec. 2011: While there was no statutory provision on reinstatement in the 2008 labour law, the 2011 amendments introduced reinstatement as the primary remedy for reinstatement. According to article 143d(3) LL "if the competent body determines that the dismissal was carried out without legal or justifiable grounds, whether prescribed by an act of the employer or agreed by the employer in the contract of employment, the employee shall be entitled to return to work, as well as to a compensation of financial and non-financial damage in a procedure prescribed by the law".

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 143d LL:
    Within 15 days from the date of the receipt of the dismissal decision, an employee may challenge that decision before the competent. Alternatively, he/she can challenge it before the Agency for Amicable Settlement of Labour Disputes.
    There are no specialised labour courts in Montenegro; labour disputes are heard by ordinary courts.

    Note: following the 2011 amendments, with regard to the competent court, the relevant article number has changed but not its content (with the exception of the inclusion in this article of the possibility to submit the dispute to the Agency for Amicable Settlement of Labour Disputes (see below under arbitration)

    With respect to the burden of the proof in dismissal disputes, there was no provision in the 2008 LL. The 2011 amendments introduced a new, the 2011 amendment introduced a new provision (art. 143d(2) according to which the burden of proving that the grounds of dismissal are justified and lawful rests on the employer.

Existing arbitration: Yes

Remarks:
  • Art. 143d LL (new in December 2011):
    Within 15 days from the date of the receipt of the dismissal decision, an employee may challenge that decision before the competent. Alternatively, he/she can challenge it before the Agency for Amicable Settlement of Labour Disputes.

    [New in 2011: The possibility to settle dismissal disputes through the Agency for amicable settlement of labour disputes has been introduced in December 2011. In the 2008, there was only a reference in art. 121(1) LL to the possibility of submitting individual labour disputes to an arbitrator.]

Morocco - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 41 LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1,5 months' pay per year of service but cannot exceed 36 months' pay.

Remarks:
  • Art. 41 LC

Reinstatement available: Yes

Remarks:
  • Art. 41 LC

Preliminary mandatory conciliation: No

Remarks:
  • No mandatory conciliation before the court.
    However, possibility to resort to extra-judicial conciliation before the Labour Inspectorate to claim reinstatement or damages (art. 41 LC)

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 41 LC refers to the competent tribunal. No labour court in Morocco.

Existing arbitration: No

Namibia - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • No legal limits on the amount of compensation for unfair dismissal to be awarded by the arbitrator (see sec. 86(15) c) LA)

Reinstatement available: Yes

Remarks:
  • Sec. 86(15) d) LA provides that an arbitrator to a dispute may make any appropriate arbitration award, including an order of reinstatement of an employee.

Preliminary mandatory conciliation: Yes

Remarks:
  • Sec. 86(5) LA: "Unless the dispute has already been conciliated, the arbitrator must attempt to resolve the dispute through conciliation before beginning the arbitration."

    See also Sec. 85(6) LA: "If the conciliation attempt is unsuccessful, the arbitrator must begin the arbitration".

Competent court(s) / tribunal(s): labour court

Remarks:
  • In addition to Labour Court: Arbitration tribunal and Labour commissioner

    Sec. 85 LA establishes arbitration tribunals for the purpose of resolving disputes. Art 85(2) provides that Arbitration tribunals operate under the auspices of the Labour Commissioner, and have jurisdiction to
    (a) hear and determine any dispute or any other matter arising from the interpretation, implementation or application of this Act; and
    (b) make any order that they are empowered to make in terms of any provision of this Act.

    Sec. 86(1) LA provides that unless a collective agreement provides for referral of disputes to private arbitration, any party to a dispute may refer the dispute in writing to
    (a) the Labour Commissioner; or
    (b) any labour office.

    The Labour Court will only be competent to hear appeals against an arbitrator's award
    * on any question of law alone;
    * in the case of an award in a dispute initially referred to the labour Commissioner concerning the fundamental rights, on a question of fact, law or mixed fact and law (sec. 89 (1) LA).

Existing arbitration: Yes

Remarks:
  • Arbitration is the ordinary mechanism settling disputes relating to the breach of a contract of employment or a collective agreement (see sec. 84 to 86 LA). Any party to such dispute may refer it in writing to the Labour Commissioner or any labour office which will then refer the dispute to an arbitrator to attempt to resolve the dispute through arbitration; (sec. 86 (1) LA).

    If the dispute concerns a dismissal, it must be submittted within six months after the date of the dismissal. Otherwise, it must be submitted within one year after the dispute arises.

Length of procedure: 12 month(s)

Remarks:
  • Between 3 and 12 months depending on Court scheduling.

    See: Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

    "The Committee notes the information contained in the Government's report received in October 2011 in reply to the 2009 direct request. (...) The Government further reports that the average time to examine the appeals is done in accordance with the Labour Court Rules and ranges between three to 12 months, or more depending on Court scheduling."

% of dismissals out of the total number of disputes: 70 %

Remarks:
  • See: Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

    "The Committee notes the information contained in the Government's report received in October 2011 in reply to the 2009 direct request. The Government reports that 70 per cent of 3,100 registered labour disputes concerned termination of employment (unfair dismissals). Some of the disputes were successfully conciliated while others were referred to arbitration. Out of 86 appeals and reviews that were filed at the Labour Court, 70 were unfair dismissal claims."

Notes / Remarks
See: Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

"The Committee notes the information contained in the Government's report received in October 2011 in reply to the 2009 direct request. The Government reports that 70 per cent of 3,100 registered labour disputes concerned termination of employment (unfair dismissals). Some of the disputes were successfully conciliated while others were referred to arbitration. Out of 86 appeals and reviews that were filed at the Labour Court, 70 were unfair dismissal claims. The Government further reports that the average time to examine the appeals is done in accordance with the Labour Court Rules and ranges between three to 12 months, or more depending on Court scheduling. The Committee notes that there were 3,089 terminations for economic or similar reasons between 1 April 2010 and 31 March 2011".

Netherlands - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • On compensation, see Art. 7:681 to 7:683 CC.
    In case of an unfair termination of a fixed term contract, a fixed compensation, equal to the amount of pay, the employee would have received if the contract would have been terminated in a regular way, can be requested, Art. 7:677 (4) CC. However, the court can decide to lower this sum with regards to the principle of reasonableness and fairness, but must at least grant 3 monthly wages
    An employee who has terminated an employment contract due to an “urgent cause”(see above) provoked by the employer may also be entitled to a compensation, Art. 7:677 CC.

Reinstatement available: Yes

Remarks:
  • Art. 7:681 to 7:683 CC.

Preliminary mandatory conciliation: No

Remarks:
  • No statutory provision in the legislation reviewed.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • No specialised court, ordinary courts have jurisdiction over labour disputes.

Existing arbitration: No

Remarks:
  • No statutory provision in the legislation reviewed.

New Zealand - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • • There are no statutory limitations as to the amount of compensation to be awarded in the event of unfair dismissal.
    Sec. 123 ERA provides that if the Employment Authority or Court determines that a dismissal was unjustified, it may provide for any 1 or more of the following remedies:
    - reinstatement;
    - reimbursement of the whole or any part of the wages lost as a result of the dismissal;
    - compensation for humiliation, loss of dignity, and injury to the feelings of the employee; and loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to have obtained had he or she not been dismissed.

    Up-to-date figures for non-remuneration compensation are available at: https://www.employment.govt.nz/about/employment-law/compensation-and-cost-award-tables/

Reinstatement available: Yes

Remarks:
  • The ER Amendment Act 2018 s 47 restores the pre-2010 provision and (from 11 December 2018) provides that:

    “125 Reinstatement to be primary remedy
    (1) This section applies if—
    (a) the remedies sought by, or on behalf of, an employee in respect of a personal grievance include reinstatement; and
    (b) it is determined that the employee did have a personal grievance.
    (2) If this section applies, the Authority or court must provide for reinstatement wherever practicable and reasonable, irrespective of whether it provides for any other remedy as specified in section 123.

Preliminary mandatory conciliation: Yes

Remarks:
  • - The Ministry for Business, Innovation and Employment (MBIE) provides a Mediation services in order to help the employer and employee to resolve their dispute by mutual agreement. If the parties come to an agreement, once it is signed by the Mediator, it will be final and binding.
    - In addition, the ERA provides for the duty of the Employment Relations Authority to consider mediation (sec. 159 ERA). That means that it shall first consider whether an attempt has been made to resolve the matter. However, according to sec. 159AA ERA, in case mediation is not requested by both parties, the authority should not refer the case to mediation, unless it considers the alleged breaches to be minor or it is satisfied that will be a cheaper and quicker way to clarify disputed facts or otherwise assist the authority in considering the matter. Before referring to mediation, the authority must also consider, whether it would contribute constructively to resolving the matter; or be in the public interest; or undermine the urgent or interim nature of the proceedings. (Based on the same considerations, when a case reaches the court, the court can also again consider on whether to refer the case to mediation, sec. 188 (2) and 188A ERA.)

Competent court(s) / tribunal(s): labour court; administrative body

Remarks:
  • - The ERA gives exclusive jurisdiction to the Employment Relations Authority, an independent body, to make determination about personal grievances, which amongst other things include unfair dismissal claims (sec. 161(1)e) ERA). This provision removed the possibility for employees to pursue a claim for wrongful dismissal under civil law.
    - Either the employer or employee may challenge a determination of the Authority, within 28 days after the date of the determination, in the Employment Court.
    A challenge may relate to the whole of the determination (in which case, there will be a de novo hearing) or be restricted to some limited aspect of a determination (sec. 179 and 187 ERA)

Existing arbitration: Yes

Remarks:
  • The ERA reserves the possibility for the parties to resort to arbitration or other mediation services. (secs. 154 and 155 ERA)

Niger - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 91(2) and 92 LC: The amount of damages for unfair dismissal is fixed by the Court, in light of any circumstances establishing the existence and the extent of the harm incurred, including the local custom, the type and importance of the services rendered, the employee's seniority and age, any deductions or payments made to a retirement plan, and other established right.

    Art. 475 Implementing Decree of August 2017: The amount of damages in case of unfair dismissal of a workers' representative can reach 36 months of salary.

Reinstatement available: Yes

Remarks:
  • The LC does not contain any provision on reinstatement and only provides for the payment of damages in the event of unfair dismissal (Art. 91(2) LC).However, in practice, reinstatement seems to be ordered by the labour courts. See, e.g. Direct Request by the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) on the application of Convention No. 158 (2011) [link available under "Scope of additional information"] :
    "The Government indicates that the labour tribunal has the power to declare the termination invalid and to propose reinstatement should it identify any irregularity in the grounds and procedure for termination. The Government also indicates that, if the employer rejects the request for reinstatement, it is required by law to pay the worker compensation"

    New in Sept. 2012:
    Art. 227 LC: Any dismissal of a workers' representative carried out without the prior consent of the labour inspector or despite the application for authorization being rejected /dismissed is null and void and will therefore entail reinstatement of the worker. Under the previous LC, reinstatement was not available in such cases.

    Art. 475 Implementing Decree of August 2017: Reinstatement possible in case of unfair dismissal of workers' representatives.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 305 LC: Conciliation shall be part of the procedure before the labour court.
    In addition, before starting any judicial proceedings, the parties can resort to extra-judicial conciliation before the Labour Inspectorate (Art. 317 LC).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 289 LC.

Existing arbitration: No

Remarks:
  • In the LC, arbitration is only foreseen for the resolution of collective labour disputes.

Burden of proof: both

Remarks:
  • Economic dismissal - Art. 85 LC: In the event of litigation, the burden of proof of the economic nature of the dismissal and of the respect of the order of dismissals is the responsibility of the employer.

Nigeria - 2013    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Remedies for unlawful termination (breach of contract) or wrongful dismissal without notice are limited to damages for the equivalent amount the employee would have been entitled to, had the contract not been unlawfully terminated. Therefore, in the event of unlawful termination, the employee is entitled to compensation equivalent to what the employee would have earned during the notice period.
    In the event of wrongful dismissal without notice (for gross misconduct), the damages awarded corresponds to the amount the worker would have earned if he or she had continued working under the employment contract until this contract was lawfully terminated.
    Nigerian law excludes damages for injured feelings (following the English case of Addis v. Gramophone Co. [1908] AC 488.)

Reinstatement available: Yes

Remarks:
  • Reinstatement is only available in limited circumstances (in particular, when the termination was based on the employee's trade union activities).

    See: Chioma Kanu Agomo, 'Part I. Individual Employment Relations' (August 2010), pp. 39¿72, in Prof. Dr R. Blanpain, Prof. Dr M. Colucci (Eds.), International Encyclopaedia for Labour Law and Industrial Relations (Kluwer Law International BV, The Netherlands), pp. 62-63, paras. 158-159:
    " The regular courts have consistently declined employee's request for reinstatement as appropriate remedy for wrongful termination (see Chukwuma v. Shell Petroleum Development Company of Nigeria Ltd (1993) 4 NWLR 512; Sule v. Nigerian Cotton Board (1985) 2 NWLR 17; New Nigeria Bank Ltd v. Oniovosa (1995) 7 NWLR 691)"
    This principle applies to the private sector, reinstatement is an available remededy for wrongful termination in the public sector.
    The National Industrial Court has recognized that reinstatement can be ordered in two cases: the first one being when the termination is the result of the trade union activities of the employees prohibited under sec. 9(2) LA, the second one being (in line with the ordinary courts rulings) when an office or employment has a 'statutory flavour', which means that its conditions of service are provided for and protected by statute or regulations and any person holding that office or in that employment enjoys a special status. If the procedure laid down by the applicable statute for dismissing such a person is not complied with, then the dismissal will be null and void, and the person will be reinstated.

Preliminary mandatory conciliation: No

Remarks:
  • No information found.

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • Until the adoption of the National Industrial Court Act (2006), individual employment claims (including on wrongful terminations) were only handled by ordinary court. However the 2006 Act now confers jurisdiction to the National Industrial Court over individual employment disputes.

Existing arbitration: Yes

Remarks:
  • Only trade disputes can be referred to the Industrial Arbitration Panel. This institution does not generally deal with individual or rights disputes unless these disputes are part of a trade dispute. A trade dispute includes any "dispute or difference between employers and workers which is connected with the employment or non-employment of any person".
    In any cases, an individual employment dispute can always be settled by private arbitration if the parties so agree.

Norway - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 15-12(2) WEA states that employees may claim compensation if the dismissal is effected in violation of the provisions on protection against certain types of dismissal (including dismissal during the probationary period, unfair dismissal, dismissal in the event of sickness, dismissal during pregnancy .... (art. 15-6 to 15-11 WEA).
    Compensation shall be fixed at the amount the court deems reasonable in view of the financial loss, circumstances relating to the employer and employee and other facts of the case.

Compensation for unfair dismissal - Are there legal limits?: No

Reinstatement available: Yes

Remarks:
  • -In Norway, employee may claim that the dismissal is invalid and request that the employment relationship continues. Such shall be initiated within or 8 weeks from the end of the negotiations between the employer and employee unlike compensation claims for which the timeframe is 6 months (art.17-4(1) WEA).

    -When claimed by the employee, a notice of termination may be declared invalid if it is not based on objective grounds or in violation of the provisions on the protection against dismissal in certain cases (pregnancy, sickness, ....).
    In the case of a dispute concerning the validity of a notice of termination, the employment may remain in force until the final settlement of the dispute.
    In special cases, if so demanded by the employer, the court may decide that the employment shall be terminated if it finds it clearly unreasonable that employment should continue (art. 15-12 WEA).

    - According to OECD table on Employment Protection Legislation in Norway (2008), reinstatement orders are fairly frequent in practice.

Preliminary mandatory conciliation: No

Remarks:
  • In Norway, most civil disputes are considered initially by the Conciliation Boards (forliksrådet). However, according to Art. 17-1 (3) WEA, the Conciliation Boards do not hear individual complaints related to unlawful dismissals and other claims mentioned in Art. 17-3 WEA. These cases are to be brought before the district court directly. [See also Ch. 6, Art 6-2 (f) of the Mediation and Civil Proceedings Act (No. 28 of 2012) ( Lov om mekling og rettergang i sivile tvister (tvisteloven).]

    It is worth noting that according to art. 17-3 WEA, employees claiming that a dismissal with notice or summary dismissal is unlawful, or that it is a breach of the provisions of this Act concerning preferential rights may demand negotiations with the employer within 2 weeks from the date of the dismissal or the date the employer rejected a claim from an employee concerning preferential right to a new post.
    The employer has an obligation to ensure that a meeting for negotiations is held as early as possible and, at the latest, within two weeks of receiving the request.
    The negotiations must be completed not later than two weeks after the date of the first negotiation meeting unless the parties agree to continue the negotiations.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • - Individual disputes (for instance dismissal and termination of employment) are handled by ordinary courts (alminnelige domstoler) according to Art 17-1 WEA, the Mediation and Civil Proceedings Act (No. 28 of 2012) and the Courts of Justice Act (No. 5 of 1915).

    - According to art. 17-4 WEA, the time period for claiming an unfair dismissal is eight weeks from conclusion of the negotiation between the parties or from the date of the dismissal if no negotiations took place).
    - If an employee claims compensation only, the time limit shall be six months. In individual cases, the parties may agree
    upon a longer time limit for initiating legal proceedings. If the dismissal does not meet the formal statutory requirements with regard to notice of dismissal, there is no time limit for such claims.

    - In Norway, the National Labour Court's jurisdiction is essentially, confined to collective disputes of rights -- not to individual disputes.
    There are however, two exceptions:
    1) Individual workers (members of trade unions) and employers are liable in damages for breach of a collective agreement or of the peace obligation. Claims for indemnification in such cases lie within the Labour Court's jurisdiction (Sections 9 and 10 of the Labour Disputes Act);
    2) In addition, in a case concerning a collective agreement, the Labour Court may give a decision on individual claims being contingent on the decision given on the collective agreement issue at hand. Solely provided that this can be done without it being necessary to resolve further questions on evidence or legal problems in order to dispose of the individual claims. (Section 34 of the Labour Disputes Act (lov om arbeidstvister (arbeidstvistloven) )

Existing arbitration: Yes

Remarks:
  • - In Norway, parties may agree to have the dispute settled by arbitration. This is regulated by the Arbitration Act of 2004 (last updated 2017). Section 10 of the Arbitration Act, provides that "the parties may agree to submit to arbitration disputes that have arisen and all or certain disputes that may arise between them in respect of a defined legal relationship.(...)"

    - In addition, in respect of the chief executive of the undertaking, Art. 15-16 WEA provides that "the employer may enter into a written agreement with the chief executive of the undertaking to the effect that disputes in connection with termination of the employment relationship shall be settled by means of arbitration".

Panama - 2010    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 225 LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In case of unfair dismissal or failure of notification if mandatory, the worker is entitled to receive from his or her employer compensation based on the following scale (sec. 225, LC) For periods of service prior to 2 April 1972:
* for less than one year's service, the equivalent of one week's wages for every three months of employment, and with a minimum amount of such compensation equivalent to one week's wages;
* for a period of service of between one and two years, the equivalent of one week's wages for every two months of employment;
* for more than two and not more than five years' service, three months' wages;
* for more than five and not more than ten years' service, four months' wages;
* for more than ten and not more than 15 years' service, five months' wages;
* for more than 15 and not more than 20 years' service, six months' wages; and
* for more than 20 years' service, seven months' wages.
This scale may not be applied on a graduated basis, i.e. the highest applicable level determines the amount to be paid.
For periods of service after 2 April 1972, the following scale is to be applied:
* for less than one year's service, the equivalent of one week's wages for every three months of employment (the minimum amount of such compensation to be the equivalent of one week's wages);
* for a period of service between one and two years, the equivalent of one week's wages for each two months of employment;
* for a period of service between two and ten years, the equivalent of wages for three additional weeks for each year of service; and
* for more than ten additional years of service, the equivalent of one additional week for each year of service.
This scale is applied on a graduated basis, the total length of service completed being distributed among the corresponding steps set out in the previous sub-items. In the case of service rendered in periods before and after 2 April 1972, the above-mentioned scales are to be applied separately.
In the case of employment commencing after the LC entered into force, compensation should be equivalent to three to four weeks of wages for each year worked in the ten first years; and each year after ten years should be compensated with the equivalent of one week's wages for each year. Such compensation should not be combined with any other scale. For the two instances cited in this sub-item, where a full year has not been completed, the corresponding proportion is due.

Reinstatement available: Yes

Remarks:
  • Art. 218 LC: a worker under a contract of unspecifed duration can ask for reinstatement or compensation for unfair dismissal before the Labour Court or the Conciliation Board.
    According to art. 219 LC, if reinstatement is ordered by the Court, the employer nonetheless terminate the employment relationship by paying the statutory compensation for unfair dismissal plus a surcharge, calculated as follows:
    50%, in addition to the corresponding compensation, for those workers employed in the undertaking at the time the LC entered into force; and
    25%, in addition to the corresponding compensation, for those workers who begin working after the LC entered into force, provided that the employer has not established a severance fund.
    In addition, wages in arrears are to be paid in the form prescribed by the respective judgment, in accordance with sec. 218 of the LC.

Preliminary mandatory conciliation: No

Remarks:
  • No provision found in the legislation reviewed.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 218 LC: The Labour Tribunals and/or The Conciliation and Decision Boards (junta de conciliación y decisión,) have jurisdiction over claims of unfair dismissal. The "juntas de conciliación y decisión" which are tripartite bodies and are integrated into the "Jurisdiccion Laboral".

Existing arbitration: Yes

Remarks:
  • Art. 218 LC: The Labour Tribunals and/or The Conciliation and Decision Boards (junta de conciliación y decisión,) have jurisdiction over claims of unfair dismissal. The "juntas de conciliación y decisión" which are tripartite bodies and are integrated into the "Jurisdiccion Laboral".

Peru - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Arbitrary dismissal (= a valid reason has not been given or cannot be legally substantiated): No right to be reinstated, the worker is only entitled to compensation, as follows:
- Ordinary compensation = 1.5 month's wages for each year of service up to a maximum of 12 months' wages.
- Compensation in micro enterprises: 10 days for each year of service up to a maximum of 90 days' wages.
- Compensation in small enterprises: 20 days' wages for each year of service up to a maximum of 120 days' wages.

2) Dismissal based on prohibited grounds :
The dismissal is null and the worker shall be reinstated but in complying with the decision he or she may opt for compensation, the amount of which is the same as compensation for arbitrary dismissal (see 1)).

Remarks:
  • - See sec. 34 and 38 LPCL (general rules).
    On the specific compensation for arbitrary dismissal in micro and small enterprises, see Law on Micro and Small Enterprises [MSE], consolidated version of 2008, art. 47. Pursuant to that law, a micro enterprise is an enterprise employing 1 to 10 workers and whose maximum annual sales do not exceed 150 tributary tax units (Unidades Impositivas Tributarias (UIT)).
    A small enterprise is an enterprise employing 1 to 100 workers and whose maximum annual sales do not exceed 1700 tributary tax units (see art. 5 MSE)
    - In the event of a constructive dismissal, the worker may choose to bring an injunction against the employer's actions or he or she may choose termination of the contract. In case of such termination, he or she will be entitled to the payment of compensation equivalent to compensation for arbitrary dismissal (art. 30 LPCL)
    - Please note that compensation for arbitrary dismissal (art. 38 LPCL) is also due in the event the employer does not observe the preferential right of workers to be re-employed by their former employer within a year of a collective dismissal (art. 52 LPCL)

Reinstatement available: Yes

Remarks:
  • - If a dismissal is declared null and void (that means that the dismissal was based on prohibited grounds), reinstatement is mandatory. However, in complying with the decision the worker may opt for compensation instead (art. 34 LPCL)
    - There is no right to reinstatement in the event of an arbitrary dismissal (= a valid reason has not been given or cannot be legally substantiated). Compensation is the only available remedy is such case (art. 34 LPCL)

Preliminary mandatory conciliation: Yes

Remarks:
  • - The New Labour Procedure Law [NLPL], No 29497, in force from 15 July 2010 foresees a preliminary mandatory conciliation hearing and contains a much more detailed provision on the modalities of such preliminary hearing (art. 43).

Competent court(s) / tribunal(s): labour court

Remarks:
  • The New Labour Procedure Law [NLPL], establishes a hierarchy of courts to adjudicate labour disputes, consisting of the Magistrates Courts (Juzgados de Paz Letrados), the Labor Courts of First Instance (Juzgados de Trabajo), the Labour Branches of the High Court (Salas Laborales de la Corte Superior), and the Supreme Court (Corte Suprema). Dismissal cases are heard by the Labour Courts of First Instance (Juzgados de Trabajo). The extinction of the working relationship is observed by Specialized Labour Court as indicated in art. 2 and 51 of the NLPL.

Existing arbitration: Yes

Remarks:
  • Arbitration is recognized as a valid labour dispute resolution mechanism under certain conditions in the New Labour Procedure Law of 2010 (applicable from 15/07/2010): see supplementary provision 6).

Philippines - 2013    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Dismissal without an authorized or just cause: Compensation in lieu of reinstatement is not a statutory remedy. The employee shall be entitled to reinstatement without loss of seniority rights and other privileges and full back wages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of actual reinstatement (art. 279 LC).

Remarks:
  • Dismissal without a just or authorized cause (unfair dismissal): reinstatement. No compensation in lieu of reinstatement.

    Note that if a dismissal is for a just or authorized cause but the employer failed to comply with the procedural requirement, the dismissal should be upheld. The National Labour Relations Commission has held that while the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be held liable for nominal damages for non-compliance with the procedural requirements of due process. (Agabon et al. v. National Labour Relations Commission et al., G.R. No. 158693, November 17, 2004)

Reinstatement available: Yes

Remarks:
  • Art. 279 LC: "An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages inclusive of allowance, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement".

Preliminary mandatory conciliation: No

Remarks:
  • No preliminary mandatory conciliation as such.
    However, art. 222 of the LC provides that "the Labour Arbiter shall exert all efforts towards the amicable settlement of a labour dispute within his jurisdiction on or before the first hearing. The same rule shall apply to the Commission in the exercise of its original jurisdiction".

Competent court(s) / tribunal(s): administrative body

Remarks:
  • The Labour Arbiters of the National Labour Relations Commission have original and exclusive jurisdiction over termination disputes.
    Art. 217 b) LC: The National Labour Relations Commission has exclusive appellate jurisdiction over all cases decided by Labour Arbiters.

Existing arbitration: Yes

Remarks:
  • Art. 217 a) LC:
    The Labour Arbiters of the National Labour Relations Commission have original and exclusive jurisdiction over termination disputes.
    Art. 217 b) LC: The National Labour Relations Commission has exclusive appellate jurisdiction over all cases decided by Labour Arbiters.

Length of procedure: 20 day(s) (statutory)

Remarks:
  • Omnibus Implementing Rules, Rule XIV, sec. 8: Cases involving the dismissal of a worker shall be decided by the Labour Arbiter within 20 working days from the date of submission of such cases for decision.

    For non-dismissal labour disputes see: Art. 217a) LC: the Labour Arbiters shall hear and decide the dispute, within thirty calendar days after its submission.

Portugal - 2014    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 391 and 392 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- In the event of unlawful dismissal (failure to comply with the applicable procedural requirements, dismissal based on political, ideological, ethnic or religious reasons and if the reasons invoked are considered unlawful):
If the employee chooses compensation rather then reinstatement. The amount of such compensation shall be between 15 and 45 days of basic salary and seniority awards for each full year or fraction of year of service, depending of criterion such as: the level of the salary and the degree of unlawfulness of the dismissal but not less than 3 months' wages.
(The employee is also entitled to back pay from the date of the dismissal until the date of the court's final decision)

- In the event of minor procedural irregularities, the employee is only entitled to compensation in the amount of half of the above mentioned amounts (= 7.5 to 22.5 days for each year of service but not less than 1.5 months)

- In the case of an unlawful dismissal in enterprises with fewer than 10 workers or of a worker holding a managerial position, if the employer opposes the reinstatement and the Court accepts it, compensation in lieu of reinstatement is between 30 and 60 days of wages for each year of service but not less than 6 months' wages.

Reinstatement available: Yes

Remarks:
  • Reinstatement is the ordinary remedy available to the employee in the event of unlawful dismissal (see definition above) in addition to compensation for material and non-material damages unless he/she opts for compensation in lieu of reinstatement (see above).
    However in enterprises with fewer than 10 workers or in the event of a worker holding managerial functions, the employer may oppose the reinstatement if he/she can demonstrate that the return of the worker would be seriously prejudicial and disruptive to the functioning of the enterprise. This faculty to oppose reinstatement is not given to the employer whenever it is proven that he deliberately invented the grounds for that opposition and in the event the dismissal was based on political, ideological, ethnic or religious grounds. If the employer's request is accepted by the Court, employees will only be entitled to compensation (art. 392 LC)

    In addition, reinstatement is not available in the case of minor procedural irregularities (art. 389(1) LC).

Preliminary mandatory conciliation: Yes

Remarks:
  • Preliminary conciliation by the judge is required in the initial phase of the hearings (art. 98 -I of the Code of Labour Procedure, as introduced by the Decree Lay N° 198 of 2009, and art. 52-53 of that Code).

Competent court(s) / tribunal(s): labour court

Remarks:
  • The Labour courts have exclusive jurisdiction over dismissal cases (see Code of Labour Procedure and art. 387 LC).
    Any legal action challenging the regularity and the fairness of an individual dismissal shall be brought within 60 days of receipt of the dismissal decision or of the date of termination of the contract . (Note that under the 2003 LC, this timeframe was 1 year). The Decre-Law 295/2009 of 13 October 2009 introduced in the Code of Labour Procedure, new proceedins of an urgent nature to be observed in the event of a legal action challenging an individual dismissal (art. 98-B to 98-P LC).

    (Any action challenging collective dismissals must be lodged wihin 6 months of the date of termination of the contract: art. 388(2) LC)

Existing arbitration: No

Remarks:
  • No alternative arbitration. However, there is a national Labour Mediation System the parties can refer their dispute to.
    See information found on secondary source (Eurofound, EIROnline, Portugal: Individual disputes at the workplace ¿ alternative disputes resolution, Author: Reinhard Naumann, 10 February 2010):
    On May 5th 2006 the Ministry of Justice and all peak organisations with access to the Standing Commission for Social Concertation (CPCS) signed a protocol for the creation of a Labour Mediation System (SML). In December 2006 the SML began to operate in the Metropolitan Areas of Lisbon and Porto. Since 2007 it has been extended to the complete territory of continental Portugal (except Madeira and the Azores). (...)
    The SML is entitled to deal with all kinds of labour disputes, except those related to work accidents and to inalienable and indispensable rights. The Ministry of Justice and UGT give the following examples for the intervention of the SML:
    conflicts related to the payment of compensations to be paid to dismissed employees and to other aspects of the cessation of a work contract,disputes regarding the transfer of an employee from one workplace to another or about his/her promotion,disputes about work schedules and the scheduling of company holidays, and
    the juridical nature of a work contract.
    According to UGT, most of the conflicts resolved by the SML are related to payments (of compensations, salaries etc.).

Romania - 2017    

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Compensation for unfair dismissal - free determination by court: Yes

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
If the dismissal was not well-founded or illegal, the court must invalidate it and order the employer to pay an indemnity equal to the indexed, increased or updated wages and the other entitlements the employee would have otherwise benefited from.

Remarks:
  • Art. 80(1) (former art. 78(1)) LC.
    Note that art. 78 (former art. 76) LC stipulates that a dismissal decision infringing the procedure provided for in the law shall be null and void.

Reinstatement available: Yes

Remarks:
  • Art. 80(2) (former Art. 78.2) LC provides that the court may order reinstatement only if expressly requested by the employee.
    The Act No. 40/2011 added a new paragraph to art. 80 LC which reads as follows: "(3) In the case in which the worker does not demand restoring the situation before the redundancy act was issued, the individual employment contract shall rightfully end at the date the court decision remains definitive and irrevocable".

Preliminary mandatory conciliation: Yes

Remarks:
  • On the first hearing, the court is obliged to attempt to settle the dispute by conciliation (art. 76 of the Law no. 168/1999 regarding labour disputes resolution).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Based on Law No. 304/2004, specialised sections or panels for settling cases regarding labour disputes and social insurance were established at the tribunals and the courts of appeal.
    (The jurisdiction of those sections/panels cover dismissal cases - see art. 281 LC and Act No. 168/1999 on labour disputes resolutions)

Existing arbitration: No

Remarks:
  • The Law no. 168/1999 regarding labour disputes resolution only provides for arbitration as a mean of settlement of conflicts of interests (which do not cover dismissal cases). Dismissal cases which fall within the category of conflicts of rights are settled by the courts.

Length of procedure: 10 day(s) (statutory)

Remarks:
  • Cases regarding labour disputes falling within the category of conflicts of rights (which cover dismissal cases) must be adjudicated according to urgent proceedings which may not exceed 10 days. Appeals against the court's decision can be lodged within 10 days form the date of the communication of the decision to the parties (arts. 74 and 80 of the Law No. 168/1999 regarding labour disputes resolution)

Russian Federation - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Article 394 of the Labour Code

Reinstatement available: Yes

Remarks:
  • Article 394 of the Labour Code

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Article 391 of the Labour Court

Existing arbitration: No

Burden of proof: employer

Length of procedure:

Remarks:
  • Article 392 of the Labour Code: the worker may bring a complaint about the dismissal to the court within one month after the date of the termination of his or her employment.

    Article 154 of the Code of civil procedure provides that any case on dismissal must be considered within one month.

Rwanda - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 30 LL.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Art. 30 LL establishes the following legal limits for the calculation of compensation for unfair dismissal:

- Workers with up to 10 years of service:
Not less than 3 months' salary and up to a maximum of 6 months' salary.

- Workers with over 10 years of service:
Not less than 3 months' salary and up to a maximum of 9 months' salary.

- Trade union and staff representatives (regardless of seniority) :
Not less than 3 months' salary and up to a maximum of 9 months' salary.

Remarks:
  • Art. 30 LL.

Reinstatement available: No

Remarks:
  • However, Art. 22 LL establishes that any employee dismissed for economic or technical reasons, and whose dismissal does not last more than six (6) months is entitled to be reinstated in employment without competition when he/she meets the profile required for the position to which the employer seeks to fill.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 102 LL:
    When an individual labour dispute arises, the concerned party shall request the employees' representatives to settle it amicably.
    - In case the dispute is not settled, it shall be referred to the local Labour Inspector for an out-of-court settlement.
    - When conciliation efforts fail, the dispute may be taken before the competent court.
    - If the above mentioned steps have not been followed, the court may declare the claim inadmissible.

Competent court(s) / tribunal(s): ordinary courts

Existing arbitration: Yes

Remarks:
  • Only for collective labour disputes (arts. 144-150 LL)

Saint Lucia - 2011    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • - The CSA does not contain provisions on avenues for redress for unfair dismissal. Non-compliance with procedural requirements is the only aspect covered by the CSA.
    Indeed, the CSA refers the determination by a tribunal of "any question (...) as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice". (sec. 26(1)). However, there is no provision on any specific compensation to be awarded by the tribunal in such cases.

    - Under the Equality of Opportunity and Treatment in Employment and Occupation Act, an employee who is a victim of any discriminatory act (including discriminatory dismissals), may apply for damages from the employer for any loss caused directly or indirectly as a result of the contravention (sec. 24 (a) EOTEOA). The law does not foresee any cap on such damages.

    - See also Section 11 of the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, for discriminatory dismissal based on trade union membership or activities. This provision does not set any limits on the amount of compensation to be awarded.

Reinstatement available: Yes

Remarks:
  • - Reinstatement is only available as a remedy for discriminatory dismissal under the Equality of Opportunity and Treatment in Employment and Occupation Act.
    According to sec. 24(2) (b) of the EOTEOA, an person who is aggrieved by a discriminatory act prohibited under that law (which includes discriminatory dismissal) can apply for "order to employ, re-employ or reinstate any person, although the vacancy in question has already been filled and although the employer may be liable to any claim arising from the need to dismiss or terminate the services of any other employee who has been engaged".
    - According to section 11(5) of the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, if the Industrial Relations Tribunal finds that an employee has been dismissed on the grounds on his/her trade union membership or activities, the employee is entitled to reinstatement, along with any remedy deemed appropriate, unless reinstatement is not reasonable practicable.
    - As already indicated, the provision of the CSA on avenues for redress only refers to the determination by a tribunal of "any question (...) as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice" (sec. 26(1)). The CSA is silent as to the remedies available in such cases, and therefore reinstatement does not seem to be available to the employee.

Preliminary mandatory conciliation: No

Remarks:
  • No information found in the CSA or the EOTEOA .

    The TUEOA (which deals with dismissal based on trade union activities/membership) provides for the possibility to settle the dispute by conciliation mediation or arbitration of the parties so agree. In such cases, the Industrial Relations Tribunal would only be competent in the event of failure to obtain settlement of the dispute through conciliation mediation or arbitration (sec. 7).

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • - CSA, sec. 26(1): "Any question arising under this Part as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice, shall, in accordance with the regulations made under this Part be referred to and determined by a tribunal".
    - The remedial provision of EOTEOA (which covers discriminatory dismissals) refers to "any court of competent jurisdiction" (sec. 24).

    - However, pursuant to the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, the Industrial Relations Tribunal (which is a specialized tripartite body) is competent to hear disputes over dismissals of employees on account of their trade union membership of their pursuit of lawful trade unions activities (sec. 11 and 45).

Existing arbitration: Yes

Remarks:
  • No provision found as to the settlement of dismissal disputes through arbitration in the CSA and the EOTEOA.
    However, the TUEOA (which deals with dismissal based on trade union activities/membership) provides for the possibility to settle the dispute by conciliation mediation or arbitration of the parties so agree. In such cases, the Industrial Relations Tribunal would only be competent in the event of failure to obtain settlement of the dispute though conciliation mediation or arbitration (sec. 7).

Saudi Arabia - 2017    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 77 LL: "If the contract is terminated for an invalid reason, the party who is harmed by such termination shall be entitled to indemnity to be assessed by the Commission for the Settlement of Labor Disputes, taking into account the termination circumstances and actual and potential material and moral damages sustained".

Reinstatement available: Yes

Remarks:
  • Art. 78 LL.

Preliminary mandatory conciliation: Yes

Remarks:
  • Prior to referrimg any dispute to the Commission (acting as a Labour Court), it shall be brought to the labour office which shall attempt to settle it amicably (art 220 LL).
    No information available as to any mandatory conciliation before the Commission for the Settlement of Labour Disputes.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 77 LL & art. 210 to 228 LL on labour disputes settlement.
    The competent body is the Commission for the Settlement of Labour Disputes which is part of the judiciary.
    The Commission can only be seized after the amicable settlement before the labor office has failed.

Existing arbitration: Yes

Remarks:
  • Art. 224 LL: The parties can agree to settle the dispute through arbitration.

Senegal - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. L56 LC

Reinstatement available: Yes

Remarks:
  • Art. L217 LC. Reinstatement when a worker's representative has been dismissed without prior authorization from the Labour Inspector.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. L251 LC: conciliation is part of the procedure to be followed before the labour courts.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. L229 LC

Existing arbitration: No

Serbia - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 191 LL.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Damages in lieu of reinstatement:
- max. 18 months' salary when the employee does not wish to be reinstated or
- max. 36 months upon request or the employer or when case the existing circumstances suggest that the continuation of labor relations is not possible.

Remarks:
  • Art. 191, §§ 4-5 LL.

Reinstatement available: Yes

Remarks:
  • Art. 191 §§ 1-2 LL.
    Note that, when reinstatement is ordered, the employer shall also pay compensation for the lost salary and other emoluments which the employee is legally entitled to.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 21 of the Law on Organization of Courts (2002): the municipal court has jurisdiction to hear termination of employment disputes at first instance.

Existing arbitration: Yes

Remarks:
  • Termination of employment disputes can be settled through arbitration: Art. 194 LL and art. 30 Act on Peaceful settlement of Labour Disputes.

Length of procedure: 6 month(s) (statutory)

Remarks:
  • Art. 195 LL.
    * The legal proceedings may be initiated 30 days after the decision has been served to the employee.
    * The dispute before the court shall be terminated 6 months after initiation of the proceedings at the latest.
    * In case of amicable settlement through arbitration, the decision shall be passed within 10 days :art. 194 LL.

Singapore - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Sec. 14 (4) EA: If the Minister of Manpower considers the dismissal to be unfair, he may:
    1) order reinstatement and payment of wages the employee would have earned had he or she not been dismissed, or in lieu if reinstatement
    2) direct the employer to pay such amount of compensation as freely determined by the Minister.

Reinstatement available: Yes

Remarks:
  • Sec. 14 (4) a) EA: If after consideration of the Labour Commissioner's inquiry, the Minister of Labour is satisfied that the employee has been dismissed (on the grounds of misconduct) without "just cause or excuse", he may order reinstatement.

Preliminary mandatory conciliation: No

Remarks:
  • No statutory provision in the legislation reviewed.

Competent court(s) / tribunal(s): administrative body

Remarks:
  • An employee who considers that he or she has been summarily dismissed on the grounds of misconduct without just cause or excuse may, within one month of the dismissal and in writing, seek reinstatement (and/or compensation) from the Minister of Manpower (sec. 14 (2) EA. The decision of the Minister is final and cannot be challenged in any court (sec. 14(5), EA).


Existing arbitration: No

Notes / Remarks
Claims of unfair dismissal (without just cause) dealt with in this section are only available to the employee in the event of a summary dismissal dismissal (for misconduct).

In the event of any termination of the contract by the employer, the employee has the right to sue in the civil courts for breach of contract at common law.

Slovakia - 2012    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • See sec. 79 (1) and (2) LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
For claims arising from an invalid termination", the law distinguishes between 2 situations depending on wether or not the employee has notified the employer that she or she insists on continuation of the employment:

1) Termination is invalid and the employee insists on keeping his/her employment: Compensation amounts to the average earnings from the day he/she announced to the employer that he/she insists on keeping employment, to such time for which the employer enables him/her to keep working, or until a court rules on termination of the employment relationship. If the overall time is more than 9 months, the court may award proportionate reduction for the period exceeding 9 months [New as of 1 Sept. 2011: previously 12 months].

2) Termination is invalid and the employee does not insist on keeping his/her job: the employment relationship is deemed to have been terminated by mutual agreement. If " the employment relationship was terminated in an invalid manner immediately or, within the probationary period, on the day when the employment relationship was due to terminate", the an employee is entitled to wage compensation in the amount of average monthly earnings for a two-month notice period".
No such compensation is due "an invalid notice was given, upon expiration of the period of notice".

NOTE: This information has changed since the previous period covered.
Remarks:
  • Sec. 79 (1) and (2) LC. Sec. 79(2) LC was amended by Act No. 257/2011 in force since Sept. 2011.

Reinstatement available: Yes

Remarks:
  • Reinstatement is the rule if the employee insists on continuing the employment relationship unless the courts decides that "it cannot be justly required of the employer to further employ the employee": sec. 79 (1) LC.
    If termination is invalid but the employee does not insist on further continuing the employment relationship, it will be deemed to have been terminated by mutual agreement: sec. 79 (3) LC.

Preliminary mandatory conciliation: No

Remarks:
  • No statutory provision found in the legislation reviewed.

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Sec. 77 LC.

Existing arbitration: Yes

Remarks:
  • No statutory provision found in the LC.
    However, mediation is foreseen by Act no. 420/2004 since 1 September 2004 as a method for out-of-court resolution of individual labour disputes.

    See secondary sources: http://www.eurofound.europa.eu/eiro/studies/tn0910039s/sk0910039q.htm (Eurofound)
    http://ec.europa.eu/civiljustice/adr/adr_svk_en.htm (European Commission, European Judicial Network)

Length of procedure: 14 month(s)

Remarks:
  • This refers to the average litigation time (in months) for individual labour disputes in Slovakia in 2008 and is therefore not specific to dismissal disputes. Original source: Statistical yearbook of the Slovak Ministry of Justice, reported in: Ludovit Cziria, "Slovakia: Individual disputes at the workplace - alternative disputes resolution", 2010, available on the Eurofound website at: http://www.eurofound.europa.eu/eiro/studies/tn0910039s/sk0910039q.htm

Slovenia - 2012    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Up to 18 monthly wages.

Remarks:
  • Based on average monthly wages in the last three months before termination: Art. 118 ERA (as amended in 2007).

Reinstatement available: Yes

Remarks:
  • Art. 118 ERA: As a consequence of the court's decision finding the dismissal illegal, the worker is restored to his position unless he does not wish to continue the employment relationship and/or the court considers that continuation would no longer be possible.

Preliminary mandatory conciliation: Yes

Remarks:
  • Article 26 (2) of the Labour and Social Courts Act, stipulates that there is a pre-trial phase in which the President of the Judicial Senate works toward mediation/conciliation. If this fails, proceedings move to the adjudicatory phase.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 204 ERA

Existing arbitration: Yes

Remarks:
  • Art. 205 ERA: A collective agreement may provide for the settlement of individual labour disputes by arbitration.
    See also art. 228 ERA: Mediation by the labour inspector.

South Africa - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See sec. 194 LRA.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Compensation for unfair dismissals (unfair reasons or unfair procedure): not more than 12 months' wages calculated at the employee's rate of remuneration on the date of dismissal.

2) Compensation for automatically unfair dismissals (those based on prohibited grounds): not more than the equivalent of 24 months' wages.

Remarks:
  • Sec. 194 LRA.

Reinstatement available: Yes

Remarks:
  • Sec. 193(1) a) and (2) LRA.
    Reinstatement or re-employment is mandatory unless:
    (a) the employee does not wish to be reinstated or re-employed;
    (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
    (c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
    (d) the dismissal is unfair only because the employer did not follow a fair procedure.

Preliminary mandatory conciliation: Yes

Remarks:
  • Pursuant to sec. 191 LRA, within 30 days of the date of the dismissal, the employee may refer the dispute about the fairness of the dismissal to a special bargaining council or to the Commission for Conciliation, Mediation and Arbitration, if no council has jurisdiction which must attempt to resolve the dispute through conciliation. If the council or the Commission does not succeed in resolving the dispute through conciliation, it is referred to arbitration by the Commission or adjudication by the Labour Court depending on the nature of the dispute (see below).

Competent court(s) / tribunal(s): labour court

Remarks:
  • The LRA establishes an independent, tripartite Commission for Conciliation, Mediation and Arbitration (CCMA) [see below] and a Labour Court (Chapter VII of the LRA) which both have jurisdiction over disputes of unfair dismissals depending on the nature of those dismissals (see sec. 191 (5) LRA.)
    If conciliation fails, the dispute will be referred to the Labour Court for adjudication if the employee has alleged that the reasons for dismissal are: (i) automatically unfair (see prohibited grounds); (ii) based on the employer's operational requirements (includes economic reasons); (iii) the employee's participation in a strike; or (iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

    In addition, sec. 191(6) LRA states that the director of the Commission must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-
    (a) the reason for dismissal;
    (b) whether there are questions of law raised by the dispute;
    (c) the complexity of the dispute;
    (d) whether there are conflicting arbitration awards that need to be resolved;
    (e) the public interest.

    In the case of dismissals adjudicated by the Labour Court, an appeal against the decision of the Court is possible. Appeals from the Labour Court will be heard by the Labour Appeal Court.

    Common law claims for breach of contract in the ordinary civil courts are also possible.

Existing arbitration: Yes

Remarks:
  • See sec. 191 5 (a) LRA on mandatory arbitration.
    the bargaining council or CCMA for arbitration if (i) the employee has alleged that the reason for dismissal related to the employee's conduct or capacity, (ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer, (iii) the employee does not know the reason for dismissal; (iv) the dispute concerns an unfair labour practice.

Spain - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See art. 56(1) ET.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):

Remarks:
  • Dismissal declared unfair by the Court (a valid reason has not been given, or cannot be legally substantiated - "despido improcedente"): as from Royal Decree Law 3/2012 the employer can opt for compensation in lieu of reinstatement; 33 days' wages for each year of service up to a maximum of 24 months' pay. If the employer opts for reinstatement, he will have to provide for back pay from the date of the dismissal until the judicial decision or until the worker finds another job if that happens before the court's decision.

    Remarks:
    - On unfair dismissal, see art. 56 ET.

Reinstatement available: Yes

Remarks:
  • - In the event of unfair dismissal ("despido improcedente"), the employer may choose between reinstating the employee or paying compensation for unfair dismissal (art. 56(1) ET).
    However, if the dismissed employee is a workers' representative, the choice between reinstatement and compensation shall be made by the employee. Therefore reinstatement of a workers' representative is mandatory if so requested (art. 56(4) ET).
    - Reinstatement is mandatory in the event of discriminatory dismissal or dismissal based on maternity-related grounds (art. 53(4), 55(5) and 55(6) ET.

Preliminary mandatory conciliation: Yes

Remarks:
  • -Art. 63 LPL: Preliminary conciliation at the competent service of the labour administration is mandatory before the dispute can reach the labour court.
    - In addition, the parties can resort to judicial conciliation at the labour court in the beginning of the proceedings, before the trial starts, see art. 84 LPL

Competent court(s) / tribunal(s): labour court

Remarks:
  • The Labour Courts have jurisdiction over individual labour disputes arising from the employment contract. (see the Labour Procedure Law, art. 2(a); see also the specific provisions on dismissal: art. 103- 124 LPL).
    Complaints relating to both disciplinary and objective dismissal shall be lodged within 20 days of the dismissal (art. 103 and 121 LPL).
    The Labour Courts system is organized as follows:
    The labour courts (Juzgados de lo Social) are the court of first instance for labour disputes arising at the provincial level. The employment divisions of the higher courts (Sala de lo Social de los Tribunales Superiores de Justicia) have jurisdiction over labour disputes whose scope is greater than a province, but within a region (or autonomous community), and their judgments can be appealed. The employment division of the National Court (Sala de lo Social de la Audiencia Nacional) hears labour disputes whose scope is greater than an autonomous community. The employment division of the Supreme Court hears appeals of decisions of the employment divisions of the National Court and of the higher courts.

Existing arbitration: Yes

Remarks:
  • "With respect to other ways of out-of-court [individual] conflict resolution processes, their establishment in the state and the Autonomous Communities was carried out through agreements between the most representative union and employers' organisations, establishing the type of mediation and the arbitration as procedures (some Communities also include conciliation). Therefore, since the early nineties procedures have been developed for resolving conflicts of this nature, first in the historical communities (Basque Country, Catalonia and Galicia), and then in all the others, and joint institutions were created normally consisting of a department or section in the Autonomic Administration. Similarly, since 1996 there has been the Agreement on the Extrajudicial Resolution of Labour Conflicts (Acuerdo de Solución Extrajudicial de Conflictos, ASEC) at the national level, signed this year and renewed in 2009 to last until 2012, by the UGT, CCOO (the unions), CEOE and CEPYME (the employers' organisations). This agreement opened the doors to the creation of the private foundation administered by the Interconfederal Service of Mediation and Arbitration (SIMA), financed entirely by the state, but managed autonomously by the social partners. Its services are free, just like those of the joint institutions of the communities, but they are distinguished as focusing only on collective conflicts." This agreement was renewed in 2012 by the V Agreement on the Autonomous Resolution of Labour Conflicts – Extrajudicial System (V Acuerdo sobre solución autónoma de conflictos laborales – Sistema Extrajudicial).


    Source: Pablo Sanz de Miguel and Maria Caprile, "Spain: Individual disputes at the workplace - alternative disputes resolution" available on the EIRO website at: http://www.eurofound.europa.eu/eiro/studies/tn0910039s/es0910039q.htm

Sri Lanka - 2013    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • 1) No compensation in lieu of reinstatement awarded by the Labour Commissioner under the TEWA except in the event of closure of the enterprise, in which case compensation awarded is subject to legal limits (secs. 5, 6 and 6A TEWA - see below).

    2) Under the IDA, there are no limits on compensation awarded by the Labour Tribunal: see sec. 31C(4) and 31C(6)(c).

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Remedies under the TEWA:
- Any dismissal in contravention of the provision of the TEWA (=without prior approval of the Labour Commissioner or prior consent of the worker) is illegal, null and void and therefore entails reinstatement and payment of back wages. The TEWA also foresees the possibility for the worker whose employment has been terminated to receive "any other legal remedy".
-Under the TEWA, compensation in lieu of reinstatement is only payable in the event of termination by the employer resulting from the closure of any business, trade or industry in violation of the TEWA according to the following formula:
* 1 to 5 years of service: 2.5 months per year of service (max. compensation: 12.5 months)
* 6 to 14 years of service: 2 months per year of service (max. compensation: 30.5 months)
* 15 to 19 years of service: 1.5 months per year of service (max. compensation: 38 months)
* 20 to 24 years of service: 1 month per year of service (max. compensation: 40 months)
* 25 to 34 years of service: 0.5 month per year of service (max. compensation: 48 months)

2) Remedies under the IDA:
Any relief or redress may be granted by the Labour Tribunal including compensation in lieu of reinstatement freely determined by the Tribunal.

Remarks:
  • 1) TEWA:
    Sec. 5, 6 TEWA. See also sec. 6B TEWA on the right to apply for any other legal remedy"
    Sec. 6A(1) and 6D TEWA: illegal dismissal resulting from the closure of any business, trade or industry. The formula to be followed for the computation of compensation to be paid to a worker in such case was set out by the Labour Commissioner (under sec. 6D of the TEWA) in Order No. 1384/07 of 15 March 2005.
    2) IDA: see sec. 31C(4) and 31C(6)(c).

Reinstatement available: Yes

Remarks:
  • Sec 5 TEWA: termination by the employer in violation of the provision of the TEWA shall be illegal, null and void.
    Sec. 6 TEWA: Reinstatement.

Preliminary mandatory conciliation: No

Remarks:
  • - No conciliation foreseen under the TEWA.
    - Under the IDA, industrial disputes can be settled by conciliation by the labour commissioner. However, such conciliation is not mandatory (sec. 3, secs. 11 to 15 IDA).

Competent court(s) / tribunal(s): labour court; administrative body

Remarks:
  • - Complaints alleging any violation of the TEWA shall be brought before the Labour Commissioner within 6 months from the date of the dismissal (sec. 6 and sec. 6B TEWA, as amended in 2008 (previously 3 months).
    Complaints relating to the enforcement of the Labour Commissioner's payment orders rest with the Magistrate's Court.
    - Pursuant to the IDA, the labour tribunals have jurisdiction over applications concerning employment termination by the employer and payment of gratuity or other benefits arising from that termination provided that such applications are made within 6 months from the date of termination (sec. 31B(1) and sec. 31B(7) IDA, as amended in 2008 (previously 3 months).

Existing arbitration: Yes

Remarks:
  • - No arbitration under the TEWA. Disputes regarding terminations in violation of the approval requirement of that Act
    are heard by the Labour Commissioner (sec. 6 TEWA)
    However, sec. 6B provides that the TEWA shall not be construed as affecting the rights of a workman whose employment has been terminated to apply for any other legal remedy in respect of such termination or as affecting the jurisdiction of any court, tribunal or institution to grant relief in respect of such termination.
    - Under the IDA, industrial disputes can be referred to arbitration by the labour Commissioner if the parties so agree, or by the Minister of Labour without prior consent of the parties if he or she considers that industrial dispute to be of a minor nature. (sec. 3(1) and 4(1) IDA).
    Industrial dispute is defined under sec. 48 IDA as "any dispute or difference between an employer and a workman or between employers and workmen or between workmen and workmen connected with the employment or non-employment, or the terms of employment, or with the conditions of labour, or the termination of the services, or the reinstatement in service, of any person and for the purposes of this definition " workmen " includes a trade union consisting of workmen ".
    The IDA expressly specifies that industrial dispute arising from retrenchment may be settled by arbitration (sec. 31H)

Length of procedure: 2 month(s) (statutory)

Remarks:
  • The Industrial Disputes (Hearing and Determination of Proceedings) (Special Provisions) Act, No. 13 of 2003 sets out statutory time frames for adjudicating complaints made under the TEWA and the IDA as follows:
    1) Applications made to the Labour Commissioner under the TEWA: 2 months for the date of the receipt of the application (sec. 12 and 13).
    2) Applications to the Labour Tribunal: 4 months from the date of the application (sec. 5(1)). Appeals against the tribunal's decision shall be lodged within 30 days of the decision and decided within 4 months (sec. 6).

Notes / Remarks
In the absence of requirement of valid grounds for dismissal, this section refers to the various remedies and procedures foreseen in the event of non compliance with the provisions on termination of the TEWA and the IDA which covers industrial disputes in general and includes termination aspects such as retrenchment and prohibited grounds for dismissal.

Sweden - 2017    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Dismissal is invalid:

Compensation for losses in respect of the period following the cessation of employment may not exceed 6 months' pay for less than 6 years of service, 16 months' pay for less than 5 years of service, 24 months' pay for at least 5 years and less than 10 years, 32 months' pay for ten years of service or more."

2) Dismissal is invalid and the employer refuses to comply with the court decision: employment is terminated and damages shall amount to 6 months' pay for less than 6 years of service, 16 months' pay for less than 5 years of service, 24 months' pay for at least 5 years and less than 10 years, 32 months' pay for ten years of service or more.

Remarks:
  • Sec. 38 EPA: “An employer who violates this Act shall be liable for damages for loss suffered by the employee as well as pay and other employment benefits to which the employee may be entitled. An employee who fails to comply with the notice obligations mentioned in Section 11, first paragraph, shall be liable for damages to the employer.
    Damages under the first paragraph may comprise both compensation for losses sustained and for violation of the Act. Compensation for losses in respect of the period following the cessation of employment may not, under any circumstances, exceed the amount mentioned in Section 39. Where reasonable, damages may be reduced, in whole or in part”.

    Sec. 39 EPA: “Where an employer refuses to comply with a court order that notice of termination or a summary dismissal is invalid, or that a fixed-term employment shall be valid for an indefinite term, the employment relationship shall be deemed to have been dissolved. As a consequence of the employer's refusal to comply with the court order, the employer shall pay damages to the employee under the following provisions.
    Damages are to be determined according to the employee's total period of employment with the employer at the time of dissolution of the employment relationship, and shall correspond to the following amounts:
    - 16 months' pay for less than five years of employment;
    - 24 months' pay for at least five years but less than ten years of employment;
    - 32 months' pay for ten or more years of employment;
    Damages may not be determined, however, in such a manner that such damages are calculated on the basis of a greater number of months than have actually been commenced with the employer. Where the employee has been employed by the employer for less than six months, the amount assessed shall correspond to six months' pay. SFS (2007:389)”.

Reinstatement available: Yes

Remarks:
  • If an employee has been dismissed, without the dismissal being justified by an objective reason, the employee is according to sec. 34 EPA upon request, entitled to have the dismissal annulled. If the court rules that the dismissal is invalid, the employment continues on the same terms as before. Sec. 37 EPA states that if the Court has ruled that the dismissal is invalid, the employer may not suspend the employee from work as a consequence of the circumstances that caused the notice of termination or summary dismissal.

    Sec. 34 EPA: “Where notice of termination is given without objective grounds, the notice shall be declared invalid upon the application of the employee. However, the above-mentioned provision shall not apply where the notice of termination is challenged solely on the grounds that it is in breach of the rules regarding priority.
    If a dispute arises concerning the validity of a notice of termination, the employment shall not terminate as a consequence of the notice prior to the final adjudication of the dispute. Nor may the employee be suspended from work as a consequence of the circumstances that caused the notice to be given, in the absence of special reasons for such. The employee shall be entitled to pay and other benefits under Sections 12 - 14 for the duration of the employment.
    Pending final adjudication of the dispute, a court may rule that employment will terminate at the expiration of the period of notice, or at a later time determined by the court, or that a current suspension shall be discontinued”.

    Sec. 37 EPA: “Where a court has issued a final order that a notice of termination or a summary dismissal is invalid, the employer may not suspend the employee from work as a consequence of the circumstances that caused the notice of termination or summary dismissal”.

Preliminary mandatory conciliation: Yes

Remarks:
  • The Labour Disputes Act (1974:371) requires the trade union and the employer or the employers’ organization to have completed negotiations before bringing an action to court. However, the right to negotiate does not apply to individual employees. Source: Jenny Julén Votinius, Sweden, in ILO (eds. Ebisui, M; Cooney, S; Fenwick, C), 2016, Resolving Individual Labour Disputes, A comparative overview, at pp.241-242. Available at: http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_488469.pdf

    Ch.4, sec. 7 Labour Disputes Act (1974:371): “An action may not be considered by the Labour Court before such negotiations in respect of the issue in dispute as may be requested under the Employment (Codetermination in the Workplace) Act (1976:580) or as are provided for in a collective bargaining agreement, have taken place.
    The provisions of the first paragraph shall not apply to actions under Section 31, first or third paragraph, of the Employment (Co-determination in the Workplace) Act (1976:580), nor to any dispute as to whether an industrial action has been taken in breach of a statute or collective bargaining agreement, nor to any dispute concerning the sanctions for such action. However, in cases referred to in Section 43 of the Employment (Co-determination in the Workplace) Act (1976:580) where the duty of the deliberation has not been discharged, the Labour Court may not consider the dispute before this is done.
    Notwithstanding the provisions of the first and second paragraphs, an action may be considered as regards an interim order pending a judgment or decision in the case entering into final legal force. Following such examination, a stay of proceedings shall be ordered pending the completion of negotiations or deliberations concerning the issue in dispute, under the first or second paragraph. The case may not be finally determined until such negotiations or deliberations have been concluded.
    Where negotiations or deliberations as referred to in the first or second paragraph have not taken place, the claim may nevertheless be considered by the court if there is some impediment to such negotiations or deliberations which is not attributable to the plaintiff (SFS 1992:441)”.

    The Employment (Co-determination in the Workplace) Act sets out the legal framework for trade union negotiations. Sec. 10 of the Employment (Co-determination in the Workplace) Act: “An employees' organisation shall have the right to negotiate with an employer on any matter relating to the relationship between the employer and any member of the organisation who is, or has been, employed by that employer. An employer shall have an equivalent right to negotiate with an employees’ organisation.
    Employees' organisations shall also have the right to negotiate, in accordance with the first paragraph, in relation to any organisation of which the employer is a member, and similarly employers' organisations in relation to any organisation of which the employee is a member”.

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • The Labour Court has jurisdiction over labour disputes provided that the parties are bound by collective agreements and that they are members of an employers' association or a trade union. If individual workers want to bring a case on their own, without support from their trade union or because they do not belong to a union, they can only do so in a district court. Note that in Sweden, around 70 % of workers are union members.

    Ch. 2 sec. 1 of the Labour Disputes Act (1974:371): “The Labour Court shall, as a court of first instance, take up and determine any dispute where the action is brought by an employers’ or employees’ organisation, or by an employer who has concluded its own collective agreement, where the case involves:
    1. a dispute relating to a collective agreement or any other labour dispute referred to in the Employment (Co-determination in the Workplace) Act (1976:580);
    2. any other labour dispute, provided that a collective agreement is in force between the parties or that an individual employee who is affected by the dispute is employed for work covered by a collective agreement that is binding on the employer.
    The Labour Court is the competent court under the first paragraph even when a collective agreement is temporarily suspended.
    Any other labour dispute between the same or other parties may be consolidated with a labour dispute under the first or second paragraph, if the Court considers such processing appropriate having regard to the material presented and other circumstances. The Court may separate the cases again if there are grounds to do so.
    The Labour Court is always competent as a court of first instance to take up and determine disputes concerning industrial action referred to in Sections 41, 41b and 41c of the Employment (Co-determination in the Workplace) Act (1976:580)” (SFS 2010:230)

    Ch. 2 sec. 2 of the Labour Disputes Act (1974:371): “Labour disputes other than those referred to in Section 1 shall be dealt with and determined by a district court.
    Actions referred to in Section 1 which are brought by an employer who has himself concluded a collective bargaining agreement, or by an employers' or employees' organisation on its own behalf, may be brought at a district court instead of the Labour Non-official translation Court. Where the defendant is an organisation, or where the dispute would have been commenced against an organisation under Chapter 4, Section 5, second paragraph, if the dispute had been commenced before the Labour Court, the foregoing shall apply only in accordance with such agreement as referred to in Chapter 10, Section 16 of the Code of Judicial Procedure.
    In a labour dispute under the first or second paragraph of this Section, the employer may be proceeded against at the court in the district in which the employee is resident (SFS 1977:530)”.

Existing arbitration: Yes

Remarks:
  • Labour disputes may be settled through arbitration by agreement. However, certain restrictions apply, such as the restrictions set out in ch.1 sec.3 of the Labour Disputes Act (1974:371).

    “In most areas, arbitration is a permitted alternative to judicial review in individual labour disputes. The only general exception is discrimination cases, where there is a prohibition on arbitration clauses that have been concluded prior to the dispute, and that deny the parties the possibility to appeal the arbitral award. In other disputes, an arbitration clause is normally valid provided that it is not deemed unreasonable, which is very unusual”. “In individual employment contracts, arbitration clauses typically appear in the contracts of employees holding prominent positions, mainly CEOs. For other categories of employees, it is very unusual for an individual employment contract to stipulate that future disputes shall be made subject to arbitration”. Source: Jenny Julén Votinius, Sweden, in ILO (eds. Ebisui, M; Cooney, S; Fenwick, C), 2016, Resolving Individual Labour Disputes, A comparative overview, at pp.255-256. Available at: http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_488469.pdf

    Ch.1. sec.3 of the Labour Disputes Act (1974:371): “Disputes to be dealt with under this Act may by agreement be referred for determination by an arbitrator instead. However, this shall not apply to cases referred to in Section 31, first or third paragraph, of the Employment (Co-determination in the Workplace) Act (1976:580). Nor shall any agreement that was concluded prior to the dispute whereby any dispute should be determined by an arbitrator without reservation of the right of the parties to challenge the arbitral award be applied in disputes concerning the right of association or in disputes under
    – the Prohibition of Discrimination of Employees Working Part Time and Employees with Fixed-term Employment Act (2002:293); or
    – the Discrimination Act (2008:567). (SFS 2008:574)”.

    Sec. 31 of the Employment (Co-determination in the Workplace) Act (1976:580): “Where an employer, employee or organisation bound by a collective bargaining agreement has committed a gross breach of such an agreement or of this Act and where such provisions have a fundamental significance on the contractual relationship as a whole, a court may, upon motion of the other party, declare that a collective bargaining agreement by which the parties are bound is no longer applicable to such parties.

    Where a collective bargaining agreement has been concluded by several parties on either side or on both sides and where a declaratory judgment has been made under the first paragraph of this Section in respect of only some of them, any other party may, within three weeks thereafter, terminate the agreement on its own behalf with immediate effect.

    Where a court determines that particular actions are contrary to a collective bargaining agreement or to this Act, it may, upon application, release an employer, employee or organisation from its obligations under the collective bargaining agreement or this Act, to the extent it cannot be reasonably required that such obligations be fulfilled (SFS 1977:532)”.

Length of procedure: 6 month(s)

Remarks:
  • Statistics for 2002.
    This figure refers to all the cases brought to the labour court acting as a first instance.
    http://www.eurofound.europa.eu/eiro/2004/03/tfeature/se0403102t.htm

Switzerland - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Are there legal limits?:

Remarks:
  • Art. 336a CO provides that
    1. A party who terminates the employment relationship unlawfully shall pay a compensation to the other party.
    2. The court shall determine the compensation taking due account of all the circumstances, though the compensation shall not exceed an amount equivalent to six months' salary for the employee. (...)
    3. Where termination is unlawful pursuant to Article 336 paragraph 2 letter c (i.e. in the context of collective dismissals where the prior consultation procedure has not been respected), compensation may not exceed two months' salary for the employee.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):

Remarks:
  • 1) Unfair dismissals (for ordinary dismissals):
    Art. 336a CO (see above).

    2) For dismissals with immediate effect in the absence of fair reason:
    Art. 337c CO provides that where the employer dismisses the employee with immediate effect without good cause, the employee is entitled to damages in the amount he would have earned had the employment relationship ended after the required notice period or on expiry of its agreed duration. The court may order the employer to pay the employee an amount of compensation determined at the court's discretion taking due account of all circumstances; however, compensation may not exceed the equivalent of six months' salary for the employee.

Reinstatement available: No

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • Art. 34 du Code de procédure civile (2008)

Existing arbitration: Yes

Syrian Arab Republic - 2013    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Dismissal based on prohibited reasons:
If the court deems that reinstatement is impossible, unpractical or inappropriate, it shall order compensation equal to 2 months' wages for each year in service, provided that the total amount does not exceed 200 times the minimum wage.

2) Unfair disciplinary dismissal:
When the employer fails to prove that the worker committed any of the acts entailing summary dismissal referred to in art. 64, the worker is entitled to compensation equal to 2 months' wages for each year of service, provided that the total amount does not exceed 150 times the minimum wage.

Remarks:
  • - Dismissal based on prohibited reasons: see art. 67
    - Unfair summary dismissal: see art. 65 LL

    See also art 208(d) which provides that: If the worker brings a dismissal dispute to court, the court shall, during litigation, order the employer to pay the worker 50% of his/her monthly wage, provided that such payment does not exceed the minimum wage payable for his occupation and does not exceed one year.

Reinstatement available: Yes

Remarks:
  • Art. 209 LL: the employer shall be ordered to pay compensation to the worker unless he or she accepts to reinstate the worker.

    However, under art. 67 LL, if the unfair dismissal was based on prohibited grounds (i.e trade union activities, lodging a complaint against the employer, discriminatory grounds...), the court shall order the reinstatement of the worker in addition to his/her full wages for the entire interruption period.
    If the court deems that reinstatement is impossible, unpractical or inappropriate because the employer refuses to reinstate the worker or the worker refuses to resume work, it shall order compensation in lieu of reinstatement except if the dismissal was connected to the worker's trade union activities or electoral activities.

Preliminary mandatory conciliation: No

Remarks:
  • No preliminary mandatory conciliation.
    However, under art. 208 LL, in the event of a dismissal dispute, the worker or the trade union concerned may, upon request of the worker, solicit mediation by the Directorate of Social Affairs and Labour, within ten days of being notified the dismissal or dismissal notice.
    The directorate acts as a mediator between the employer and the worker, and attempts to settle the dispute within no later than one month. If mediation fails, the worker is entitled to go to court.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Article 205 LL: A primary civil court shall be created in each governorate by decision of the Minister of Justice and shall consist of:
    1) A primary magistrate appointed by the Minister of Justice (chairman)
    2) A representative of the trade union association, appointed by the executive bureau of the GFTU (member).
    3) A representative of employers, appointed by the Federation of Chambers of Industry, Commerce, Tourism or Cooperatives (as the case may be) to examine labour disputes between workers and employers (member).

Existing arbitration: Yes

Notes / Remarks
In June 2013, the minimum wage in Syria is around SYP 9765 (around 152 USD) [Source: Doing Business - World Bank]

Tajikistan - 2015    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 197 LC

Compensation for unfair dismissal - Are there legal limits?: No

Reinstatement available: Yes

Remarks:
  • In the event of termination without legal justification or in breach of the order of dismissal or unlawful transfer to another job the employee must be reinstated in his/her previous job at the same workplace. In reaching a decision on reinstatement the court is considering the labor dispute, and can order employer to pay the employee the average monthly wage for the time of enforced idleness, or the difference in pay for run-time paid job, as well as possible compensation for moral damages and additional costs of the appeal or of the transfer or dismissal. (art. 197 LC)

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts

Existing arbitration: Yes

Remarks:
  • Labour arbitration exists for both individual and collective labour disputes. Article 209 LC contains provisions on labour arbitration. The structure of labor arbitration may include parliamentarians, representatives of trade union bodies, labor and employment experts - experts and other persons, and its composition is determined by the parties. Labor arbitration decisions are binding unless the parties previously entered into an agreement about this. If the conciliation commission and labor arbitration are not able to resolve the differences of the parties, the reasons must be in writing communicated to the union.

Tanzania, United Republic of - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 40(1)c) ELRA (see below: minimum 12 months' pay).

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
-In case of unfair dismissal, the labour court or an arbitrator may order the employer to pay compensation to the worker of not less than twelve months' remuneration.
- Where an order of reinstatement or re-engagement is made by an arbitrator or court and the employer decides not to follow it, the employer shall pay compensation of twelve months wages in addition to wages due and other benefits from the date of unfair termination to the date of final payment.

Remarks:
  • Art. 40(1)c) ELRA.

Reinstatement available: Yes

Remarks:
  • Art 40(1)a) ELRA: If the labour court or an arbitrator finds the dismissal unfair, the court or the arbitrator may order the employer to reinstate the employee from the date the employee was terminated without loss of remuneration during the period
    that the employee was absent from work due to the unfair
    termination. They can also order the employer to re-engage the employee on any terms by them decided (art. 40(1)c) ERA).

Preliminary mandatory conciliation: No

Remarks:
  • No preliminary mandatory conciliation as such.
    However, the ELRA provide for an optional preliminary mediation: an employee who wishes to contest a dismissal may refer the dispute to the Commission for Mediation and Arbitration established under section 12 of the Labour Institutions Act of 2004 (No. 7). The Commission will appoint a mediator to mediate the dispute, decide the time, date and place of the mediation hearing and advise the parties of this. (art. 86(3) ELRA). The mediator should resolve the matter within thirty days of the referral or longer if the parties agree to it. Where the mediator fails to resolve the complaint within the agreed upon period of time, it is referred to either arbitration or to the Labour Court. The Labour Court may refuse to hear a complaint if the complaint has not been referred to mediation, if the mediation has not been conducted according to the ELRA, or if the application is not urgent (art. 94(2) ELRA).

Competent court(s) / tribunal(s): labour court

Remarks:
  • Where the mediator fails to resolve the complaint within the agreed upon period of time, it is referred to either arbitration or to the Labour Court (see art. 40 ELRA: remedies for unfair termination to be awarded by the Labour Court or an arbitrator).
    The Labour Court means the Labour Division of the High Court established under section 50 of the Labour Institutions Act, 2004 (art. 4 ELRA).
    The Labour Court which has exclusive jurisdiction over the application, interpretation and implementation of provisions of the ELRA, may refuse to hear a complaint if the complaint has not been referred to mediation, if the mediation has not been conducted according to the ELRA, or if the application is not urgent (art. 94 ELRA).

Existing arbitration: Yes

Remarks:
  • In the event the mediator fails to resolve the dispute, it is referred to either arbitration or to the Labour Court (art. 86(7) ELRA)
    For the purposes of arbitration, a dispute is defined to include a complaint over the fairness or lawfulness of an employee's termination of employment (Art. 88(1)b) ELRA).

Thailand - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 49 ALC: If the labour court rules that the dismissal was unfair but considers that the cooperation between employer and employee has been disrupted beyond repair, the court may fix an amount of damages as compensation to be paid by the employer in lieu of reinstatement by taking into consideration the age of the employee, the length of service, the hardship of the employee at the time of dismissal, the cause of the dismissal and the compensation the employee is entitled to receive.

Reinstatement available: Yes

Remarks:
  • Art. 49 ALC: If the labour court considers that an employee has been unfairly dismissed, it may order reinstatement at the level of remuneration applying at the time of dismissal.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 38 ALC provides that "when the plaintiff and the defendant appear in court, the labor court shall mediate the parties to reach an agreement or a compromise". If the parties fail to reach an agreement or a compromise, the labor court shall proceed with the trial.

Competent court(s) / tribunal(s): labour court; administrative body

Remarks:
  • - Disputes regarding termination of employment must be brought before a labour court (see arts. 8 and 49 ALC)
    - However, if an employee was dismissed following an unfair practice (i.e termination on the grounds of trade union activities or membership), he may file a complaint with the Labour Relations Committee within 60 days of the violation (art. 124 LRA). This Committee will issue an award and an order within a further 90 days, The employee can also file a criminal complaint against the employer, but only after the Labour Relations Committee has passed an arbitration award and the employer has failed to comply with the Committee's order. (art. 127, LRA). An employer who violates the prohibition of termination of employment contained in the LRA (art. 121, 122 and 123 LRA on unfair practices) shall be liable to a term of imprisonment not exceeding 6 months and/or to a fine not exceeding ten thousands Baths (see arts. 158 and 159 LRA)
    [The Labour Relations Committee is established within the Ministry of Labour and Social Welfare (art. 8, LRA) to settle particular labour disputes with an award. It is composed of between eight and 14 members, three of whom must be employers' representatives and three employees' representatives (art. 37, LRA).]

Existing arbitration: No

Remarks:
  • No information found.

Tunisia - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See art. 23bis LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- If the dismissal is not justified by a genuine and serious reason, compensation varies from one or two months' salary for each year of service, up to a maximum of three years' salary (art. 23bis LC).
The existence and the extent of the employee's losses are determined by the court, taking into account the worker's qualifications, his or her length of service in the firm, age, remuneration, family situation, the impact of dismissal on his or her retirement, compliance with the specified procedures and any special circumstances.
- If the dismissal is justified by a genuine and serious reason, but has been effected without observing the procedures prescribed by the law or by collective agreements, the dismissal is considered unfair (abusif"), but the amount of damages is limited to an amount between one and four months' salary (art. 23bis LC).
- The amount of damages for unfair termination of a contract of employment for a specified period corresponds to the payment due for the remaining contract period or for the remaining work left to perform (art. 24 LC).
______________
L'article 23bis du Code du travail dispose qu' "En cas de licenciement abusif, le préjudice donne lieu à des dommages-intérêts dont le montant varie entre le salaire d'un mois et celui de deux mois pour chaque année d'ancienneté dans l'entreprise sans que ces dommages-intérêts ne dépassent dans tous les cas le salaire de trois années. L'existence et l'étendue du préjudice résultant de ce licenciement sont appréciées par le juge compte tenu notamment de la qualification professionnelle du travailleur, de son ancienneté dans l'entreprise, de son âge, de son salaire, de sa situation familiale, de l'impact du dit licenciement sur ses droits à la retraite, du respect des procédures et des circonstances de fait. Toutefois, dans le cas où il s'avère que le licenciement a eu lieu pour une cause réelle et sérieuse mais sans respect des procédures légales ou conventionnelles, le montant des dommages- intérêts varie entre le salaire d'un mois et celui de quatre mois."

Reinstatement available: No

Remarks:
  • A worker who is unfairly dismissed cannot claim to be reinstated into the enterprise. Compensation is the only remedy for unfair dismissal (art. 23 LC).
    However, article 21-13 of the Labour Code provides for the possibility of re-employment of workers whose employment contracts have been terminated as a result of the loss of their jobs for economic reasons.
    __________
    Un travailleur licencié injustement ne peut prétendre être réintégré dans l'entreprise. L'indemnisation est le seul recours en cas de licenciement abusif (art. 23 LC).
    Toutefois l'article 21-13 du Code du travail prévoit la possibilité du ré-embauchage des travailleurs dont les contrats de travail auront été résiliés du fait de la suppression de leurs emplois pour des raisons économiques.

Preliminary mandatory conciliation: Yes

Remarks:
  • Preliminary mandatory attempt of conciliation before the Labour Court (Conseil de prud'hommes): art. 207 LC.
    ________________
    Tentative de conciliation préalable obligatoire auprès du Conseil de Prud'hommes (Art. 207 du Code du travail)-

Competent court(s) / tribunal(s): labour court

Remarks:
  • A specialized labour court (Conseil de prud¿hommes) which is of tripartite composition has jurisdiction over individual labour disputes. Appeals against its decisions are heard by the ordinary Courts of Appeal (arts. 183 and 221 LC).
    __________
    Un Conseil de prud'hommes spécialisé, de composition tripartite, est compétent pour les conflits individuels du travail. L'appel des jugements des conseils de prud'hommes rendus en premier ressort est porté devant les cours d'appel (art. 183 et 221 du Code du travail).

Existing arbitration: No

Turkey - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- Termination not justified by a valid reason (employee falling within the scope of the job security provision (Art. 18 LA): reinstatement is the remedy, compensation shall be not less than 4 month's wages and not more than 8 month's wages if the employer does not respect the re-employment order and do not re-employ the dismissed employee (+ additional indemnity of up to 4 months for the period of time between notice of termination and the court ruling + severance pay);
- Abusive termination (abuse of the right to terminate with notice employees not covered by the job security provision): 3 times the wages of the notice period(max. 24 weeks for workers with more than 3 years' seniority);
- Discriminatory dismissal (violation of the general principle of equal treatment in terminating the employment relationship): compensation shall be up to 4 month's wages;
- Termination due to trade union membership or participation in trade union's activities: see Art. 25 Law No. 6356 on Trade Unions and Collective Agreements.

Remarks:
  • - Termination not justified by a valid reason: Art. 21 LA
    - Abusive termination: Art. 17 LA
    - Discriminatory dismissal: Art. 5 LA
    - Termination due to trade union membership or participation in trade union's activities: Art. 25 of Law No. 6356 on Trade Unions and Collective Agreements (2012).

    In addition in the event of illegal breaking of the contract (summary dismissal), employees covered by the job security provision are entitled to the same compensation as for termination not justified by a valid reasons (art. 25 LA) while employees excluded from the job security provision will not be entitled to reinstatement but only to compensation for the notice period not observed.

Reinstatement available: Yes

Remarks:
  • Art. 21 LA: If the court or the arbitrator concludes that termination is not justified by a valid reasons, the employer shall reinstate the employee. Reinstatement is only available (and mandatory) for employees covered by the job security provision. In practice, the employer has the right to choose between reinstatement and compensation. Accordingly, after the court’s decision on the invalidity of the termination, if the employer does not re-employ the worker within one month, the employer becomes liable to pay a compensation equal to minimum four and maximum eight months of wage to worker.

    Discriminatory dismissal can give right to reinstatement for employees covered by the job security provision. Art 18 LA clearly provides that the following issues shall not constitute a valid reason for termination namely: "race, color, sex, marital status,…and similar reasons”. Besides, according to the Law No 6356, dismissal based on trade union membership or activities do give right to reinstatement even if the worker is not covered by the job security provision of the LA. (Art 25 (5)).

Preliminary mandatory conciliation: Yes

Remarks:

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 20 LA: The employee who alleges that no reason was given for the termination of his employment contract or who considers that the reasons shown were not valid shall be entitled to lodge a complaint against that termination before the Labour Court within one month of receiving the notice of termination.
    See also the Labour Court Act (No. 5521 of 1950) which establishes jurisdiction of the labour courts over individual disputes arising from the individual employment contracts or any claims under the Labour Act.

Existing arbitration: Yes

Remarks:
  • According to Art. 20 LA which applies to employees covered by the job security provision, the parties can refer the dispute concerning unjustified termination to private arbitration if they so agree.

Length of procedure:

Remarks:
  • No specific period stipulated under the amended Art. 20 LA (amended by Law No. 7036 of 2017). It is just stipulated under Art 20 that the case shall be concluded promptly.

Turkmenistan - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Art. 56 LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Art. 56 LC: The judge is free to decide on compensation for unfair dismissal, whose amount cannot be less than three-month wages.

Reinstatement available: Yes

Remarks:
  • Art. 56 LC

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): ordinary courts

Existing arbitration: No

Remarks:
  • Art. 370 LC established the order of creating a commission for labour disputes (collective).

Uganda - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Free determination (not by the Labour Cout but) by the Labour Officer:
    Art. 78 EA provides that an order of compensation to an employee who has been unfairly terminated may include additional compensation at the discretion of the labour officer, while taking into consideration, a range of listed factors in each case.

    Note: Labour officers in Uganda are legally empowered to engage in labour inspection activities including securing the enforcement of legal provisions relating to conditions of work, supplying technical information and advice to employers and employees and bringing to the notice of the Minister defects or abuses not specifically covered by existing legal provisions. According to the National Employment Policy for Uganda 2011, labour officers also arbitrate between workers and employers on undesirable working conditions. Much of a labour officer’s time (particularly at the district level) is devoted to dispute resolution at the expense of labour inspection activities. Source: ILO Labour Adminstration Dep.: https://www.ilo.org/labadmin/info/WCMS_209370/lang--en/index.htm

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation for unfair dismissal includes a basic compensation of 4 weeks' wages + additional compensation at the discretion of the labour officer which shall not be less than one month's wages and more than 3 months' wages (= minimum 2 months' wages and maximum 4 months' wages in total)

Remarks:
  • Art. 78 (1) EA.

Reinstatement available: Yes

Remarks:
  • Art. 71 (5) a) and (6) EA: in the event of unfair dismissal, the employee shall be reinstated or re-employed unless a) the employee does not wish to be reinstated, b) continuation of the employment relationship would be intolerable, c) it is not reasonable practical to do so, or d) the dismissal unfair only because the employer did not follow a proper procedure.

Preliminary mandatory conciliation: No

Remarks:
  • Conciliation is foreseen in the legislation; it is however not compulsory.
    According to art. 93(2) EA, a labour officer is competent to hear and to settle by conciliation or mediation a complaint concerning infringement of the provisions of the Act, or breach of obligations owed under the Act by either party to an employment contract.
    In addition, art. 8 of the Labour Disputes (Arbitration and Settlement) Act (2006) provides that one of the ways available to the labour officer to deal with a complaint is "to meet with the parties and endeavour to conciliate and resolve the dispute".

Competent court(s) / tribunal(s): labour court; administrative body

Remarks:
  • - Pursuant to Art. 71(2) EA, a complaint of unfair termination shall be lodged to the labour officer within 3 months from the date of dismissal. The Labour officer is competent to order remedies for unfair dismissal (reinstatement or compensation)
    According to art. 91 EA, appeals against the decisions of labour officer are heard by the Industrial Court.
    - Disputes concerning unjustified summary dismissals are heard by the labour officer, as provided in art. 70 EA.
    - In addition, any tort claim arising out of the employment relationship shall be brought before ordinary courts. (art. 93(6) EA)

Existing arbitration: No

Remarks:
  • No information found on separate alternative individual labour dispute resolution mechanisms. However, according to art. 93(2), the labour officer may settle by conciliation or mediation a complaint concerning infringement of the provisions of the Act, or breach of obligations owed under the Act by either party to an employment contract.

Notes / Remarks
Complaints of unfair dismissals are only available to employees who have employed for at least 13 weeks before the date of the dismissal (art. 71 EA)

United Arab Emirates - 2013    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 123 FLLR.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Maximum 3 months' wages calculated on the basis of the worker's last wages.

Remarks:
  • See art. 123 FLLR

Reinstatement available: No

Remarks:
  • The FLLR does not provide for reinstatement.
    However, some sources state that the dismissal of a UAE national employee in violation of the terms of the Ministerial Decision No 176 of 2009 may entail reinstatement although not expressly provided in that Decision. Art. 3 of that Decision sets out the consequence of a violation of the Decision as follows: if the Ministry of Labour considers that the termination of the UAE national was unlawful it will inform the employer as which will then have 15 days to resolve the dispute with the UAE employee according to the directives of the Ministry. If the employer fails to resolve the dispute within this period, the matter is referred immediately to the relevant court and the Ministry will put stop issuing new labour permits (requested by the employer) until the court renders a final judgment in the matter.
    (see for instance, Latham & Watkins, "Employment Issues in the United Arab Emirates", October 2009, p.4, available at: http://www.lw.com/upload/pubContent/_pdf/pub2801_1.pdf)

Preliminary mandatory conciliation: Yes

Remarks:
  • See art. 6 FLLR: the dispute shall be first brought to the
    Labour Department which handles a conciliation process. If no amicable settlement is reached, the Labour Department will refer the dispute to the Court within 15 days from the date of submission.

Competent court(s) / tribunal(s): ordinary courts

Existing arbitration: No

Remarks:
  • Arbitration is not available for the settlement of individual disputes. However, in the event of a collective dispute, if no settlement is reached before the Labour Department during the mediation process, the dispute is then referred to the Conciliation Board which shall issue a decision on the dispute. The decision of the Conciliation Boards can be appealed before The Supreme Arbitration Committee (see arts. 158-161 FLLR)

Length of procedure: 1 year(s)

Remarks:
  • Info found in secondary sources:
    In case of an individual labour dispute, the conciliation phase before the Ministry of labour generally takes 2-4 weeks.
    When the case is referred to the Court of first instance, it generally takes one year to be adjudicated.
    If the employee appeals the decision of the Court of Instance and goes to the Court of Cassation, the process is longer: generally additional 2 years.
    (See: The International Comparative Legal Guide to: Employment & Labour Law 2011, "United Arab Emirates", (Chap. 32) by Alfridi & Angel, available at: http://www.iclg.co.uk/khadmin/Publications/pdf/4385.pdf

United Kingdom - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Section 123.1 Employment Rights Act states that: Subject to the provisions of this section and sections 124 [F1, 124A and 126] , the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

    New in 2013: As per the Enterprises and Regulatory Reform Act, 2013 (art. 15), the Secretary of State may propose the amendments to the art. 124 of the Employment Rights Act, so as to decrease or increase the amount of the compensation for unfair dismissal.

Reinstatement available: Yes

Remarks:
  • Sec. 112, 111, 114, 115 ERA: If the Employment Tribunal is satisfied that the dismissal is unfair, it shall first consider to issue an order of reinstatement or re-engagement. However, if no such order is made (i.e because the employee does not wish to be reinstated or it is not practicable for the employer), the tribunal shall make an award of compensation for unfair dismissal.
    In practice, reinstatement or re-engagement is rarely ordered. According to the latest statistics of the Employment Tribunal (April 2011 - March 2012), in only 0.1 % of all cases of unfair dismissals upheld (excluding dismissed cases) were reinstatement or re-engagement orders issued.

Preliminary mandatory conciliation: Yes

Remarks:
  • Sec. 18 (A) Employment Tribunal Act: “Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to Advisory, Conciliation and Arbitration Service (ACAS) prescribed information, in the prescribed manner, about that matter. (2)On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.
    (3)The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.
    (4)If—
    (a)during the prescribed period the conciliation officer concludes that a settlement is not possible, or
    (b)the prescribed period expires without a settlement having been reached,
    the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant.
    (5)The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period….
    (7) A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases.
    The cases that may be prescribed include (in particular)—
    • cases where the requirement is complied with by another person instituting relevant proceedings relating to the same matter;
    • cases where proceedings that are not relevant proceedings are instituted by means of the same form as proceedings that are;
    • cases where section 18B applies because ACAS has been contacted by a person against whom relevant proceedings are being instituted.”

Competent court(s) / tribunal(s): labour court

Remarks:
  • Sec. 111 ERA: The Employment Tribunal Act has jurisdiction over complaints of unfair dismissal.
    New as of 6 April 2012 The Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 added unfair dismissal to the kinds of claim which can be heard solely by an employment judge in the employment tribunal, rather than by three panel members as was previously required.

    Alternatively employees may also sue employers for breach of contract/wrongful dismissal in civil courts. However civil courts do not have jurisdiction over claims of unfair dismissal as defined by the ERA.

Existing arbitration: Yes

Remarks:
  • Voluntary arbitration scheme for unfair dismissal claims through ACAS (Advisory, Conciliation and Arbitration Service).

United States - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • The existence and the extent of compensatory damages for discriminatory dismissals depends on the applicable statutory provisions (see below).

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Discriminatory dismissals complaints filed with the EEOC:
a) Discriminatory dismissals on account of race, color, national origin, sex (including pregnancy), religion, disability, or genetic information and age: back pay (in lieu of reinstatement or for the period from judgment until reinstatement), as well as attorney's fees and other costs. A two-year statute of limitations applies to the recovery of back pay.
b) Compensatory and punitive damages may be awarded by the Court in cases involving intentional discrimination based on a person's race, color, national origin, sex (including pregnancy), religion, disability, or genetic information (but not age).
There are caps on the amount of compensatory and punitive damages a employee can recover which vary according to the size of the employer as follows:
* $50,000 for employers with 15-100 employees;
* $100,000 for employers with 101-200 employees;
* $200,000 for employers with 201-500 employees; and
* $300,000 for employers with more than 500 employees.

c) For age discrimination under the ADEA, the employee is entitled liquidated damages in an amount equal to lost wages in cases of "wilful violation" in addition to reinstatement and back pay.

2) Under the NRLA, available remedies for unlawful dismissal do not include compensation in lieu of reinstatement. Reinstatement is the ordinary remedy but it can be refused by the employee. The employee will always be entitled to back pay which accrues from the time of the discriminatory discharge until such time as the employer makes a valid offer of reinstatement but is reduced by any interim earnings of the worker on a quarterly basis.

3) No compensation in lieu of reinstatement under OSHA for retaliatory discharge. Available remedies only include reinstatement and back pay.
4) Under the FMLA, available remedies include liquidated damages equal to the amount of any compensation lost or denied in addition to reinstatement, back pay, and reasonable attorney's fees and other costs.
5) Under SOX, available remedies include reinstatement, back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney's fees.
6) Under The Jury System Improvements Act of 1978, available remedies for violations of this law include back pay and reinstatement as well as imposition of a civil penalty of up to $5,000 dollars on the employer and reasonable attorney fees.
7) Under the WARN, if the employer does not provide the requisite advance 60 days' notice, the employer must provide a day's wages for each day notice was not given.

Remarks:
  • Specific legal provisions referred to are listed below:
    1- a):
    *CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
    *ADA: [sec. 107], 42 U.S.C. 12117, referring to enforcement provisions of the CRA.
    * GINA: [sec. 207] referring to enforcement provisions of the CRA.
    * AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
    b) Compensatory and punitive damages for unlawful intentional discrimination: introduced by The Civil Rights Act of 1991 amending CRA Title VII and the ADA, see [sec. 1977A], 42 U.S.C. sec. 1981a. See also GINA [sec. 207(a)2)].
    c) Age discrimination: ADEA [sec. 7] 29 U.S.C. sec. 626 (b): liquidated damages in an amount equal to lost wages in cases of "wilful violation".
    2) NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
    3) OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
    4) FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
    5) SOX: [sec. 806] 18 U.S.C § 1514A
    6) JSIA: 28 U.S.C sec. § 1875
    6) WARN: 29 U.S.C. sec. 2104

    Please note that where common law actions based on contract or tort are successful, these will attract the usual remedies available for actions in such suits. Litigants may be awarded equitable relief such as reinstatement and back pay, monetary damages such as reimbursement for lost wages, compensatory damages for pain and suffering and punitive or exemplary damages where the employer is found to have acted maliciously.

Reinstatement available: Yes

Remarks:
  • - Reinstatement is always available under the anti-discrimination laws:
    * CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
    * ADA: [sec. 107], 42 U.S.C. 12117
    * GINA: [sec. 207]
    * AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
    * NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
    * OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
    * FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
    * SOX: [sec. 806] 18 U.S.C § 1514A
    * JSIA: 28 U.S.C sec. § 1875

    However, infringement by the employer of the WARN Act notice provisions does not entail reinstatement: 29 U.S.C. sec. 2104.

    Please note that reinstatement may be awarded where common law actions based on contract or tort are successful.
    In general, the reinstatement is provided as a remedy for breach of a collective agreement or the violation of a constitutional liberty, rather than a remedy for the breach of an individual contract of employment.

Preliminary mandatory conciliation: Yes

Remarks:
  • Although there is no general requirement for mandatory conciliation in unlawful discharge cases, the EEOC, which enforces Title VII, the ADA, the ADEA, and GINA, uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. Only once this process is exhausted, will the EEOC issue a charging party a "right to sue letter" which permits her/him to proceed in federal court on the claim ([CRA Title VII sec. 706], 42 U.S.C. sec. 2000e-5).
    There is no preliminary mandatory conciliation before the NLRB, however cases can always be settled at any point during the investigation or the litigation process through private settlement or board settlement.

Competent court(s) / tribunal(s): ordinary courts; administrative body

Remarks:
  • 1) the Equal Employment Opportunity Commission (EEOC), receives and investigates complaints of discrimination. Where investigation reveals reasonable cause to believe that a complaint is true, the EEOC uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. If no settlement is reached, the EEOC may either file a civil action in federal court or notify the complainant, who may, within 90 days of such notice, proceed to federal court ([CRA, Title VII, sec. 706], 42 U.S.C. sec. 2000e-5).

    2)The National Labor Relations Board (the NLRB or the Board) receives and investigates complaints filed by unions, employers and workers. If, upon investigation of the charge, a threshold of merit is found, the General Counsel may issue complaint. A hearing is held pursuant to the complaint before an Administrative Law Judge (ALJ) regarding the allegations of the complaint, and the ALJ provides a recommended decision and order in the matter. The decision of the ALJ becomes final unless exceptions are filed by either of the parties. If exceptions are filed, the ALJ's decision is subject to review by the Board which issues a final order in the matter ([NLRA, sec. 10(c)],29 U.S.C sec. 160(c)). A person aggrieved by a final order of the Board may obtain review of the order in a United States court of appeals in the appropriate circuit or in the United States Court of Appeals for the District of Columbia ([NLRA, sec. 10(f)], 29 U.S.C sec. 160(f)).

    3) Under the OSHA complaints shall be made to the Secretary of Labour who will investigate it. if merit is found, he or she will bring an action in federal court against the employer ([sec. 11(c)(2)], 29 U.S.C, sec. 660(c)(2)).

    4) Under SOX, an employee who believes s/he has been discharged in violation of this subsection may file a complaint with the Secretary of Labor and, if no final decision is made on the complaint within 180 days, may bring an action in federal district court assuming the delay was not due to bad faith of the employee (18 U.S.C. sec. 1514A (b)(1))

    5) Complaints alleging violation of the WARN Act are heard by the United States district courts (29 U.S.C sec. 2104)

    In addition, the employee can bring common law actions based on contract or tort.

Existing arbitration: Yes

Remarks:
  • For employees represented by a union, the collective-bargaining agreement setting forth terms and conditions of employment almost always contains a grievance and arbitration clause. An employee who believes s/he has been discharged in violation of the collective-bargaining agreement may file a grievance with the union and the union may proceed to arbitration on behalf of the employee if the matter is not resolved through the grievance process.

Length of procedure: 120 day(s) (statutory)

Remarks:
  • - Under CRA Title VII, the EEOC is charged to reach a determination in regard to charges filed "as promptly as possible and, so far as practicable, not later than 120 days from the filing of the charge" ([sec. 706(b)], 42 U.S.C.A. Sec. 2000e-5 (b)). However, if the Commission issues the charging party a "right to sue" letter he or she may proceed to federal district court within 90 days of such notice and so the length of the procedure is dependent on whether the individual proceeds to federal court.

    - Under the NLRA, there is no statutory time frame for the conclusion of the NLRB's investigative and adjudicatory process. The duration of the process depends in part on whether exceptions are filed with the Board to the decision of the ALJ and whether final orders of the Board in such cases are appealed to federal court.

Uzbekistan - 2019    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 112 LC

    However, when awarded a compensation consists of:
    a compulsory payment during the period of forced absence ;
    compensation for the additional costs associated with the appeal of the termination of the contract or transfer (expert advice, the cost of case management, etc.);
    compensation of moral damages. The amount of compensation for moral damage is determined by the court with the assessment of the actions of the employer, but may not be less than the monthly salary of the employee. (Article 275 LC)

Reinstatement available: Yes

Remarks:
  • Art. 111 LC states that in cases of illegal termination of the contract or illegal transfer to another job the employee must be restored to the previous work by the employer, the court or other competent authority.

Preliminary mandatory conciliation: No

Remarks:
  • Art. 260 LC states that Individual labour disputes are considered by the commissions for labour disputes, or by the district (city) courts.

Competent court(s) / tribunal(s): ordinary courts

Existing arbitration: No

Venezuela, Bolivarian Republic of - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Article 142 (c) OLL provides that “in case of termination of the working relationship, whatever the cause is, benefits will be calculated on the basis of 30 days per year of work or fraction over six months calculated by reference to the last salary”. However the application of this provision raises some difficulties in practice. Article 6 of the Immunity Decree No. 3.708 establishes that in case of unjustified dismissal the worker will be able to opt for reinstatement. Article 9 provides that the employers who does will be sanctioned on the basis of Article 531 (violation of worker’s immobility), Article 532 (disregard of a public worker’s order) or Article 538 (causes of arrest - including disregarding the obligation of reinstatement) OLL.

Reinstatement available: Yes

Remarks:
  • Reinstatement remains always an option in cases of dismissal. See e.g. Article 90 OLL, which provides that “The judge will have to orally decide on the substance and declare if there should or not be reinstatement and payment of back wages”.
    See also the Organic Labour Procedure Law (OLPL), Art. 187. Moreover, under Article 191 OLPL, employers with less than 10 employees are not obliged to reinstatement.
    HOWEVER, the above mentioned rules do not apply to workers covered by the Immunity Decree 3.708, namely: all workers covered by the Labour Code except managers and seasonal workers. Under the immunlity decree, prior to any dismissal, the employer must request authorization from the Labour Inspector who will only grant it if there is a just cause. If the employer fails to do so or the dismissal is consider unjustified, the Labour Inspect will order reinstatement.
    ____________
    In Spanish:
    Decisión del procedimiento - Artículo 90 OLL:
    "El Juez o Jueza de Juicio deberá decidir de manera oral sobre el fondo de la causa y declarar con o sin lugar la solicitud de reenganche y el pago de los salarios caídos."
    Artículo 187 OLPL: "Cuando el patrono despida a uno o mas trabajadores deberá participarlo al Juez de Sustanciación, Mediación y Ejecución de su jurisdicción, indicando las causas que justifiquen el despido, dentro de los cinco (5) días hábiles siguientes; de no hacerla se le tendrá por confeso, en el reconocimiento que el despido lo hizo sin justa causa. (...)"
    Artículo 191 OLPL:"Los patronos que ocupen menos de diez (10) trabajadores, no estarán obligados al reenganche del trabajador despedido, pero sí al pago de las prestaciones e indemnizaciones a que refiere la Ley Orgánica del Trabajo, cuando el despido obedezca a una justa causa que en todo caso será objeto de calificación por el Tribunal competente."

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 422 OLL determines as a part of the procedure in case of dismissal of a worker protected by employment stability - i.e. most of them - a conciliation phase.
    Art. 133 of OLPL: preliminary mandatory conciliation before the Judge.
    ______________
    In Spanish:
    Artículo 422 OLL: "Cuando un patrono o patrona pretenda despedir por causa justificada a un trabajador o trabajadora investido o investida de fuero sindical o inamovilidad laboral, trasladarlo o trasladarla de su puesto de trabajo o modificar sus condiciones laborales, deberá solicitar la autorización correspondiente al Inspector o Inspectora del Trabajo, dentro de los treinta días siguientes a la fecha en que el trabajador o trabajadora cometió la falta alegada para justificar el despido, o alegada como causa del traslado o de la modificación de condiciones de trabajo, mediante el siguiente procedimiento: (...)"
    Art. Artículo 133 OLPL: "En la audiencia preliminar el Juez de Sustanciación, Mediación y Ejecución deberá, personalmente, mediar y conciliar las posiciones de las partes, tratando con la mayor diligencia que éstas pongan fin a la controversia, e través de los medios de auto composición procesal. Si esta mediación es positiva, el Juez dará por concluido el proceso, mediante sentencia en forma oral, que dictará de inmediato, homologando el acuerdo de las partes, la cual reducirá en acta y tendrá efecto de cosa juzgada."

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 13 OLPL: labour jurisdiction is exercised by Labour Courts, in conformity with this law.
    _____________
    In Spanish:
    Artículo 13 OLPL: "La jurisdicción laboral se ejerce por los Tribunales del Trabajo, de conformidad con las disposiciones de esta Ley."

Existing arbitration: Yes

Remarks:
  • The OLPL provides for the possibility to refer the dispute to arbitration in the course of the legal proceedings before the judge.
    Art. 133 OLPL and 135-149 OLPL.

    NOT APPLICABLE to workers covered by the Immunity Decree.

Viet Nam - 2012    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Compensation in lieu of reinstatement requested by the employee: severance pay + loss of wages during the absence from work caused by the dismissal + plus at least two months' wages.

2) Compensation in lieu of reinstatement requested by the employer: severance pay + loss of wages during the absence from work caused by the dismissal + plus at least two months' wages + an agreed additional amount of compensation.

3) Compensation, in addition to reinstatement: loss of wages during the absence from work caused by the dismissal + plus at least two months' wages.

Remarks:
  • Art. 41 (1) LC

Reinstatement available: Yes

Remarks:
  • Art. 41 (1) LC: reinstatement is mandatory unless the worker does not want to return to work.

Preliminary mandatory conciliation: No

Remarks:
  • See art. 158, 162- 166 LC.
    Preliminary mandatory conciliation by the Labour Conciliatory Council is prescribed prior the judicial settlement of an individual labour dispute (art. 162- 165 LC) and collective disputes (art. 168-170 LC).
    However, disputes concerning disciplinary dismissal or unilateral termination of the employment contract can be settled directly by the Court without having to go trough the conciliation process. (art. 166 (2) LC).

Competent court(s) / tribunal(s): ordinary courts

Remarks:
  • Art. 166 LC

Existing arbitration: No

Remarks:
  • Not applicable to individual labour disputes. However, compulsory arbitration is foreseen for the settlement of collective labour disputes : art. 170-172 LC.

Yemen - 2013    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Max. 6 months' wages in the event of arbitrary dismissal.

Remarks:
  • Art. 39 LC. The worker is also entitled to such compensation if he or she unilaterally terminates the contract without notice due to the misconduct of the employer (i.e assault, commission of morally offensive acts, employer's negligence in the event of serious threat to the worker's safety...) in accordance with art. 36(2) LC.

Reinstatement available: No

Remarks:
  • No provision on reinstatement in the LC.

Preliminary mandatory conciliation: Yes

Remarks:
  • See art. 129 LC:
    1. Both parties to a dispute or their representatives shall meet in order to attempt to settle the dispute amicably through negotiation for a maximum period of one month.
    2. If amicable settlement fails, the matter shall then be referred to the Ministry which shall summon the parties with a view to settling the dispute within a period not exceeding two weeks as from the date of referral.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Labour disputes are first settled by the Arbitration Committee. Appeals of the committee's award are heard by the Labour Division of the competent Court of Appeal (see arts. 132, 140 LC)

Existing arbitration: Yes

Remarks:
  • Labour disputes shall be settled in first instance by the Arbitration Committee (art. 132 LC).
    See also art. 39 on compensation to be awarded by the Arbitration Committee in the event of arbitrary dismissal.

Length of procedure: 40 day(s) (statutory)

Remarks:
  • Art. 137(1) LC: Within ten days of the date of submission of a case, the chairman of the Arbitration Committee shall call a meeting to examine the dispute.
    Art. 137(2) LC: The Arbitration Committees shall complete the examination of the cases submitted to them and shall deliver their awards within 30 days of the date of the first hearing.

    In addition, the parties can appeal the Committee's award within one month at the most of the date of notification of the award. The date date for the first hearing must be set within 15 days of the date of the petition for appeal and the Labour Division shall issue a final decision within 30 days of the date of its first hearing (art. 139 LC).

Zambia - 2019    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • Sec. 85A ILRA: The Industrial Relations Court may award damages or compensation for loss of employment.
    See also sec. 108 ILRA on discriminatory dismissals and 5 (5) ILRA on dismissal in connection with trade union activities.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
When the competent labour officer decides that the circumstances of the case do not warrant summary dismissal, the employee so dismissed in entitled to "payment of severance benefits" of not less than 2 months basic pay for each completed year of service" (MWCEGO sec. 12(3) and MWCESO: sec. 11(3)).

Reinstatement available: Yes

Remarks:
  • See sec. 85A ILRA and 108 ILRA.
    - Sec. 85A ILRA (general powers of the Industrial Relations Court): The Court may "make an order for reinstatement, re-employment or re-engagement".
    - Sec. 108(3)b) ILRA (discriminatory dismissals): "The Court shall, if it finds in favour of the complainant:
    a) grant to the complainant damages or compensation for loss of employment;
    b) make an order for re-employment or reinstatement in accordance with the gravity of the circumstances of each case"

Preliminary mandatory conciliation: No

Remarks:
  • No preliminary mandatory conciliation.
    However, optional conciliation is foreseen in rule 46 of the Industrial Relations Courts Rules (annexed in the ILRA) which states that:
    "In exercising its powers under these Rules, the Court may, whether by adjourning any proceedings or otherwise, use its best endeavours to ensure that, in any case in which it appears to the Court that there is a reasonable prospect of agreement being reached between the parties, they are enabled to avail themselves of the services of conciliation officers or of other opportunities for conciliation".

Competent court(s) / tribunal(s): labour court

Remarks:
  • See sec. 85 (4), 85A and 108 ILRA.
    The Industrial Relations Court has jurisdiction over matters specified under the ILRA, such as termination on the grounds of trade union membership or activity and on discriminatory grounds which shall be made within 30 days of the termination (sec. 108 ILRA).
    According to sec. 85(4), ILRA, the court also has jurisdiction to "hear and determine any dispute between any employer and an employee notwithstanding that such dispute is not connected with a collective agreement or other trade union matter". Complaints must be made within 30 days of the event complained of, unless leave is obtained (sec. 85 ILRA).

Existing arbitration: No