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> GOVERNANCE - home > Employment protection legislation database - EPLex

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


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.

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 %

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.

Bulgaria - 2016    

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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).

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

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.

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

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)

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".

Greece - 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):
- 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

Hungary - 2011    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Sec. 100 (4) LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation (in lieu of reinstatement): min. 2 months' pay and max. 12 months' pay
(In addition the employee shall be reimbursed for the lost wages and compensated for any damages arising from such loss.)

Remarks:
  • Sec. 100 (4) and (6) LC

Reinstatement available: Yes

Remarks:
  • Sec. 100 LC:
    If the Court rules that the employment was unlawfully terminated, it must order reinstatement of the employee if he so requests. However, upon request of the employer and under certain conditions, the court can refrain from ordering reinstatement.

Preliminary mandatory conciliation: No

Remarks:
  • However, the parties can resort to extra-judicial conciliation provided it is so stipulated in a collective agreement (sec. 199/A LC).

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

Remarks:
  • Labour Courts have jurisdiction in the first instance over disputes arising from the employment relationship. Appeals are heard by regular courts. (Sec. 16 of Act LXVI of 1997 on the organisation and administration of courts)

    (http://ec.europa.eu/civiljustice/jurisdiction_courts/jurisdiction_courts_hun_en.htm)

Existing arbitration: No

Remarks:
  • No statutory provision nor information found.

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.

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

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

Luxembourg - 2012    

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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.

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).

Preliminary mandatory conciliation: No

Remarks:
  • Mandatory conciliation is only foreseen for collective disputes: 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).

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.

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.]

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.

Norway - 2017    

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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 will 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 no 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, Labour Courts exist but their jurisdiction is, essentially, confined to collective disputes of rights. They do not have jurisdiction over individual disputes.
    They are competent to hear disputes concerning the interpretation, application and validity of collective agreements, in cases of breach of agreements and of the contractual or statutory "peace obligation" and in cases of claims for damages resulting from such breaches. There are however, two exceptions:

    1) Individual workers 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.

    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. (See 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.
    (see Eurofound: Individual disputes at the workplace - alternative disputes resolution - link provided below under "source of additional information").

    - 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".

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.

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.

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.

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

Switzerland - 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) Ordinary dismissal constituting an abuse of rights:
- Compensation awarded by the judge cannot exceed 6 months' wages.
2) Dismissal with immediate effect, when there is no fair reason:
- In addition to the amount the worker would have earned if the notice period had been observed, the judge may award compensation which cannot exceed 6 months' wages.

Remarks:
  • 1) Ordinary dismissals constituting an abuse of rights:
    Art. 336a (1) and (2) CO. The amount of compensation must be assessed according to the rules of law and equity, in accordance with Art. 4 of the Civil Code (CC).
    2) Dismissals with immediate effect in the absence of fair reason: art. 337c CO.

Reinstatement available: No

Preliminary mandatory conciliation: No

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

Remarks:
  • According to Art. 343 CO, the procedure is to be conducted at a cantonal level. Depending on the canton, cases are either heard by a civil court or by a labour court.

Existing arbitration: Yes

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.

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).

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).

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