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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.

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).

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).

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

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).

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

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).

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.

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.

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)

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)

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.

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.

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.

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.

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.