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Tajikistan
 


Source and scope of regulations - 2019    

References
  • Labour Code of the Republic of Tajikistan as last amended by Law #1329 of 23.07.2016
    Date: 08 Jan 2012; view website » (view in NATLEX »)
Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: none
Remarks:
  • Update as of 2016:
    Art. 9(2) LC clarifies the scope of workers and employers the Labour Code applies to. The factual information remains the same – there are no categories excluded from the LC:
    “Employees, including employees of organizations located on the territory of the Republic of Tajikistan, owners of property whose participants or shareholders are foreign individuals or legal entities;
    - Employers, including organizations located on the territory of the Republic of Tajikistan, the owners of property whose participants or shareholders are foreign natural or legal persons.”

Types of employment contracts - 2016    

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

Remarks:
  • Art. 28(1) LC.

Fixed term contract (FTC):
  • FTC regulated: Yes
    Remarks:
    • Update as of 2016: Modalities of FTCs are prescribed in Art. 25 LC.
      - Art. 25(6) states that the LC prohibits fixed term employment contract to evade guarantees and compensations provided for workers.
      - Further, Art. 25 (7) states that after the end of the FTC, unless either of the parties ask for termination of labour relationships, the contract will be considered non-fixed term.
  • Valid reasons for FTC use: objective and material reasons
    Remarks:
    • Art. 25 LC states that fixed term contracts (FTCs) may be concluded for at least one year, except in the cases of the replacement of a temporary absent employee, for the performance of a specific task or for performing a seasonal work.
      Fixed term contracts can be concluded in cases where contracts for an indefinite period cannot be concluded with regard to the nature of the work or the conditions of its execution, or the interests of the employee, as well as in the cases stipulated by law.
  • Maximum number of successive FTCs: no limitation
  • Maximum cumulative duration of successive FTCs: 1 year(s)
    Remarks:
    • Update as of 2016:
      Now, Art 25(1) LC provides that FTCs shouldn’t be for more than a year unless the contract was for seasonal work (which can be up to 6 months).

Substantive requirements for dismissals (justified and prohibited grounds) - 2016    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Art. 45 (1) LC states that termination must be justified by the employer. It adds that employers must in written form let the worker know about employers' intentions to terminate the labour contract.


Valid grounds (justified dismissal): worker's capacity; worker's conduct; economic reasons
Remarks:
  • Art. 42 LC lists the following valid reasons for the termination of employment of a contract of an indefinite duration:
    1) liquidation of the organization; termination of the activities of the employer; downsizing or staff;
    2) a mismatch of the employee position or work because of poor training, or health status, which are preventing the continuation of this work;
    3) systematic failure of a culpable employee without good reason in the performance of job duties assigned to him/her by the labour agreement or by the internal labour regulations, if an employee previously employed disciplinary action;
    4) absenteeism (including the absence of more than three hours during the day) without a good reason;
    5) absence from work for more than four consecutive months due to temporary disability, not including maternity leave, unless the law is set longer-term preservation of jobs (positions) with a certain disease. For employees unable to work due to injury or occupational disease, work place (position) is maintained until rehabilitation or establishment of invalidity;
    6) coming to work drunk, of under drugs or toxic substances;
    7) committing theft in the workplace
    8) termination of employment contract (contract) with the part-taking in connection with another employee who is not a part-time, and because of restrictions on moonlighting;
    9) termination of employment contract (contract) with the head of the organization in connection with the change of ownership;
    10) single gross violation of labour law by heads the organization (separate its divisions) and their deputies;
    11) guilty of committing an employee, directly serving the financial and commodity values, actions, giving rise to loss of confidence in him by the employer;
    12) Commission employees who perform educational functions and who commuted an immoral act that is incompatible with the continuation of this work;
    13) violation of statutory procedures and rules for employment.
    Laws, statutes and regulations on discipline may also provide other additional grounds for termination of employment (contract) by the employer.
    Termination of the employment agreement (contract) on the grounds referred to in paragraph 1 (except when liquidation), in paragraph 2, paragraph 2 of Article 53 of the Labour Code will be permitted if the employer can not transfer the employee with his or her consent to another job.
    The termination of employment is not allowed during the period of temporary disability (other than dismissal under paragraph 5 of this article) and the period when the employee is on leave, except in cases of the liquidation of the organization, or the termination of the activities of the employer.


Prohibited grounds: pregnancy; race; colour; sex; religion; political opinion; social origin; age; place of residence; ethnic origin
Remarks:
  • Prohibited grounds are: ethnic origin, race, colour, sex, age, religion, political opinion, place of birth, national extraction or social origin, pregnant women and women with children under the age of three years, single mothers if they have a disabled child under sixteen years.

    Art. 7 LC - Provision on non discrimination.
    Art. 215 LC - Restrictions on termination of employment contracts with women and other persons with family responsibilities.


Workers enjoying special protection: pregnant women and/or women on maternity leave
Remarks:
  • Art. 215 LC provides for a protection of the termination of employment for pregnant women and women with children under the age of three years, single mothers if they have a disabled child under sixteen years, except for cases of complete liquidation of the organization, when the termination of the employment contract (contract) is permitted ,however they should be assisted by the government agencies with finding a suitable work and employment.


Procedural requirements for individual dismissals - 2016    

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Notification to the worker to be dismissed: written

Remarks:
  • Art. 45 LC

Notice period:
Remarks:
  • Art. 45 (1) LC: Employer must in written form let the worker know about employers' intentions to terminate the labour contract.
    - The worker should be notified no less than two months prior to the termination of the contract if the reason for that termination is the liquidation of the organization or the termination of the activity of the employer (individual, reduction in the number or staff of employees);
    - The worker should be notified no less than a month prior to the termination of the contract if the reason for that termination is due to worker’s lack of qualifications or for health reasons.
    • tenure ≥ 20 years
      • economic dismissal - 2 month(s).
      • dismissal based on worker's capacity - 1 month(s).

    Pay in lieu of notice: Yes

    Remarks:
    • In this case according to the Art. 45 LC the employee shall be paid the compensation in the amount not lower than the average daily wage for each day remaining before the expiration.

    Notification to the public administration: Yes

    Remarks:
    • Update as of 2016: Art. 45 (4) LC states that the employer must notify relevant authorities on labour on impending dismissal of employees by indicating their qualification and salary.

    Notification to workers' representatives: Yes

    Remarks:
    • Update as of 2016: Art. 44 LC: Workers representatives should be notified at least 2 weeks before the termination of the contract.

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: Yes

    Remarks:
    • Update as of 2016: Art. 44 LC does not clearly state that the employer cannot proceed with the termination of the contract without workers representatives' approval. The article, however, sets procedural clarity for notification/coordination between the parties.
      The employer must notify workers representatives two weeks in advance (Art 44(1)); the workers representatives must reply back in 10 days (Art 44 (2)); the employer has a right to terminate the contract not later than one month after receiving the agreement of the workers representatives.
      So technically the employer should get the agreement from workers representatives. However, it does not say what happens if workers representatives do not agree.

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2016    

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    Definition of collective dismissal (number of employees concerned):
    No quantitative definition of collective dismissal in the Labour Code.

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • Art. 37 LC provides for a duty of employers to prevent massive layoffs of workers, and for prior consultations with trade unions. It states that with the threat of mass dismissals of workers the employer is required to work in consultation with the representative body of people in the organization and the appropriate body for labour and employment, and to take special measures for the following:
      1) the restriction or suspension of admission of new employees, the dismissal of part-time ones;
      2) limit the use of overtime;
      3) changes in working conditions;
      4) the temporary suspension of production;
      5) the gradual release of employees;
      6) other activities, in case they are provided for in collective agreement.

    Notification to the public administration: Yes

    Remarks:
    • Art. 49 LC states that the employer shall inform the relevant Employment Service body on any forthcoming dismissal of employees.

    Notification to workers' representatives: Yes

    Remarks:
    • Art. 44 LC. See above: Prior consultations with trade unions (workers' representatives).

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): Yes

    Remarks:
    • In the case of termination of employment in connection with changes in technology, production and labor, process of reducing the amount of work that resulted in changes in the number of (state) employees, or the changing nature of work, Art. 43 LC provides for preferential rights to remain at work for employees with higher skills and productivity.

      In case of equal qualifications and productivity, preferred employees are:
      - Workers with two or more dependents;
      - Persons in a family where there are no other employees with an independent income;
      - Workers with long experience in the organization;
      - Workers, who increased their skills on the job by the relevant specialty in higher and secondary special educational institutions, and individuals who graduated from higher and secondary specialized schools, vocational schools, and who worked in that field for two years after graduation;
      - Persons who received occupational injury or illness in the organization;
      - Invalids of the Great Patriotic War, veterans of the Great Patriotic War and persons equated to them;
      - Persons who received or suffered radiation sickness and other diseases associated with increased radiation caused by the consequences of accidents at nuclear facilities; disabled workers because of the accidents at nuclear facilities; participants of liquidation of these accidents and disasters; as well as individuals evacuated or displaced from these areas, and to other persons equal to that category;
      - Inventors.

      Collective bargaining agreements may provide for other categories of preferred workers.

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): No

    Remarks:
    • Note - update as of 2016:
      Article 338 (Health and safety section) states that the employer is responsible for retraining for sustainable labour.

    Priority rules for re-employment: No

    Severance pay and redundancy payment - 2016    

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    Severance pay:
    Remarks:
    • Update as of 2016: Article 51 LC states:
      The employee is paid a one-time severance pay upon termination of the employment contract: at the initiative of the employer and in circumstances beyond the control of the parties.
      The amount of the severance pay cannot be lower than the size of the employee’s three average monthly salaries.

      Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2016    

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      Compensation for unfair dismissal - free determination by court: Yes

      Remarks:
      • Art. 206 LC

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

      Reinstatement available: Yes

      Remarks:
      • Update as of 2016: Art. 206 LC : concerns only individual cases in the aftermath of conciliation process. No moral damages or additional costs are in the new edition. It states:
        “(2) An employee who has been reinstated in his previous job is paid the average wage for the entire time of the forced absenteeism (suspension from work) or the difference in wages during the time the underpaid work is performed.
        The decision of the body for the consideration of an individual labor dispute about the restoration of an employee in a previous job is subject to immediate execution. If the employer delays the execution of the decision on reinstatement, the body for the consideration of an individual labor dispute shall decide on the payment to the employee of the average wage or wage difference during the delay in the execution of the decision.”

      Preliminary mandatory conciliation: No

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

      Existing arbitration: Yes

      Remarks:
      • Art. 321 LC. Arbitration is for collective disputes.