ILO is a specialized agency of the United Nations
ILO-en-strap
Go to the home page
Site map | Contact us franšais | español
> GOVERNANCE - home > Employment protection legislation database - EPLex >

Afghanistan
 


Source and scope of regulations - 2013    

References Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: none


Reforms under process
There is an ongoing reform of the Labour Code. As of December 2013, no amendments have been adopted.


Types of employment contracts - 2013    

+ show references

Maximum probationary (trial) period: 3 month(s)

Remarks:
  • Art. 17(1) LC.

Fixed term contract (FTC):
  • FTC regulated: Yes
  • Valid reasons for FTC use: no limitation
    Remarks:
    • No reasons listed in the LC (see art. 14(2) LC).
  • Maximum number of successive FTCs: no limitation
    Remarks:
    • The LC does not provide for a maximum number of renewals. The only rules regarding renewals are contained in art. 14(2) LC. This provision provides that the term of the contract is one year and can be extended by mutual agreement. However, if after the expiry of the contract, the parties take no action within 1 month, the contract will be considered renewed with the same terms and conditions.
  • Maximum cumulative duration of successive FTCs: no limitation
    Remarks:
    • The LC provides for a maximum duration of one FTC: 1 year, however there is no limitation on the maximum cumulative duration of successive FTCs (art. 14(2) LC).

Substantive requirements for dismissals (justified and prohibited grounds) - 2013    

+ show references

Obligation to provide reasons to the employee: Yes
Remarks:
  • Art. 23(4) LC.


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

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


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


Workers enjoying special protection: pregnant women and/or women on maternity leave
Remarks:
  • Art. 28 LC prohibits any transfer or termination of employment during any paid leave period unless the undertaking has been dissolved. This means that dismissal is not permitted during maternity leave (90 days).
    However this protection does not cover the entire pregnancy period.


Procedural requirements for individual dismissals - 2013    

+ show references

Notification to the worker to be dismissed: no specific form required

Remarks:
  • Art. 23(4) LC provides for the employer's obligation to notify the employee of his/her dismissal within 1 month but does not specify the form of such notification.

Notice period:
    • tenure ≥ 6 months
      • 1 month(s).
    • tenure ≥ 9 months
      • 1 month(s).
    • tenure ≥ 2 years
      • 1 month(s).
    • tenure ≥ 4 years
      • 1 month(s).
    • tenure ≥ 5 years
      • 1 month(s).
    • tenure ≥ 10 years
      • 1 month(s).
    • tenure ≥ 20 years
      • 1 month(s).

    Pay in lieu of notice: No

    Notification to the public administration: Yes

    Remarks:
    • Art. 25(1) LC: The employer is required to provide a list of employees who have been dismissed on any legal ground (conduct, capacity, economic reasons - see "valid grounds") to the Ministry of Labour and Social Affairs or its provincial offices. This list which aims at assisting employees in job placement shall indicate the work experience, qualification, speciality, and skills of each employee.

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2013    

    + show references

    Definition of collective dismissal (number of employees concerned):
    The LC authorizes dismissal on the ground of "Suspension of activities for more than 6 months" and "Dissolution of the organization or reduction of the number of employees".
    In addition, the LC provides for specific procedural requirements in the event of the dismissal of "all or a group of employees" but does not specify the number of employees concerned.

    Remarks:
    • On the list of grounds for dismissal, see art. 23(1)(6) and (7) LC.
      On collective dismissal, see art. 149 LC.

    Prior consultations with trade unions (workers' representatives): No

    Notification to the public administration: Yes

    Remarks:
    • - Collective dismissals cannot be effected without the approval of the Ministry of Labour, Social Affairs, Martyrs and Disabled (MoLSAMD) (art 149(1) LC).
      - In case of long-term suspension of activities that results in closing down the undertaking, the employer must inform the MoLSAMD at least 3 months before (art. 149(2) LC)

      - In addition, the employer is required to provide a list of employees who have been dismissed on any legal ground (conduct, capacity, economic reasons - see "valid grounds") to the Ministry of Labour and Social Affairs or its provincial offices. This list which aims at assisting employees in job placement shall indicate the work experience, qualification, speciality, and skills of each employee.
      (Art. 25(1) LC)

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: Yes

    Remarks:
    • Art. 149(1): Government, NGOs, joint ventures and private entities are not authorized to dismiss all, or a group of employees without the approval of the Ministry of Labour, Social Affairs, Martyrs and Disabled (MoLSAMD) unless so authorized by statute.

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes

    Remarks:
    • Art. 23(3) LC (tbc)

    Priority rules for re-employment: Yes

    Remarks:
    • Art. 27 LC provides if an employer restarts activities after a period of suspension caused by unexpected events and resulting in terminations of employment, the employer must re-employ his/her previous employees in their respective units.

    Severance pay and redundancy payment - 2013    

    + show references

    Severance pay:
    Remarks:
    • There is no general right to severance pay upon termination of employment except when such termination is based on the following reasons:
      - cessation of activities for more than 6 months,
      - dissolution of the employer's business or downsizing,
      - criminal conviction which hinders the continuation of the work,
      - employee's refusal to be re-assigned to his/her previous position.
      Thus, employees who have been dismissed for other reasons (i.e conduct or capacity based reasons) are not entitled to severance pay.
      The amounts to be paid vary according to the length of service, as follow:
      - if the length of service is 1 year: one month' salary [not clear if it also applies to 6 and 9 months, this needs to be checked upon proper translation of the original text] ;
      - from 1 up to 5 years of service: 2 months' salary;
      - from 5 up to 10 years of service: 4 months' salary;
      - more than 10 years of service: 6 months' salary (art. 25(3) LC)
      Redundancy payment:
      Remarks:
      • See remarks under severance pay.
        Art. 25(3) LC provides for termination payment upon termination for economic reasons, namely
        - cessation of activities for more than 6 months,
        - dissolution of the employer's business or downsizing.
        The amounts to be paid vary according to the length of service, as follow:
        - if the length of service is 1 year: one month' salary [not clear whether this applies to 6 and 9 months, this need to be checked upon proper translation of the original text];
        - from 1 up to 5 years of service: 2 months' salary;
        - from 5 up to 10 years of service: 4 months' salary;
        - more than 10 years of service: 6 months' salary
      • tenure ≥ 6 months: 1 month(s)
      • tenure ≥ 9 months: 1 month(s)
      • tenure ≥ 1 year: 2 month(s)
      • tenure ≥ 2 years: 2 month(s)
      • tenure ≥ 4 years: 2 month(s)
      • tenure ≥ 5 years: 4 month(s)
      • tenure ≥ 10 years: 6 month(s)
      • tenure ≥ 20 years: 6 month(s)

      Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2013    

      + show references

      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.

      Source of additional information - 2013    

      + show references