Introduction

1. In accordance with article 19 of the Constitution of the International Labour Organization, the Governing Body of the International Labour Office decided at its 251st Session (November 1991) to invite the governments of those member States which have not yet ratified the Termination of Employment Convention, 1982 (No. 158), to submit a report on this instrument, and to invite the governments of all member States to provide reports on the Termination of Employment Recommendation, 1982 (No. 166). (Endnote 1) The reports supplied in pursuance of that decision, together with those submitted in accordance with articles 22 and 35 of the ILO Constitution by the 24 States which have ratified Convention No. 158 (which entered into force on 24 November 1985), have enabled the Committee of Experts on the Application of Conventions and Recommendations, in accordance with its usual practice, to carry out a general survey on the effect given to the instruments under consideration, the first of its kind on these instruments.

Review of standards in the field of termination of employment

2. The traditional rules governing the contract of employment which developed in various countries during the nineteenth century were characterized by a formal symmetry of the rights of either party to terminate the contract of employment, by giving notice, without either party having to justify its decision. However, the consequences of this equivalence of rights differed widely for the parties: termination of the contract by the worker - exercising his fundamental right to protect his freedom of work - is in most cases merely an inconvenience for the employer, whilst the termination of the contract of employment by the employer could result in insecurity and poverty for the worker and his family, particularly during periods of massive unemployment. The disparity of the consequences of each party exercising its discretionary power to terminate the employment relationship led in many countries to a movement towards workers' protection. This development resulted in an extension of the period of notice; the payment of a severance allowance; efforts to restrict the employer's discretionary power to terminate the employment relationship for any reason or without reason by applying the concepts of the abusive exercise of a right and abusive termination of the employment relationship; and, more recently, the adoption of provisions requiring justification for the termination of the contract of employment by the employer as the employment situation became more difficult. (Endnote 2) These provisions were supplemented by measures to be applied in the event of workforce reductions for economic, technological, structural or similar reasons.

3. In a resolution adopted in 1950, the International Labour Conference noted the absence of international standards on the termination of contracts of employment and requested a report on national law and practice on the matter for consideration by the Conference. Following a number of studies carried out on the subject, in 1963 the Conference adopted the Termination of Employment Recommendation (No. 119), the first international labour instrument dealing specifically with this issue. This instrument recommended certain fundamental standards with regard to justification for termination, notice, the right to appeal, compensation and income protection, and included provisions concerning reduction of the workforce. It marked the recognition at the international level of the idea that workers should be protected against the arbitrary and unjustified termination of their employment relationship and against the economic and social hardship inherent in their loss of employment.

4. In 1974, the Committee on the Application of Conventions and Recommendations of the International Labour Conference, when considering the General Survey by the Committee of Experts on the Application of Conventions and Recommendations of reports on the application of Recommendation No. 119, (Endnote 3) acknowledged that this Recommendation had played an important role since its adoption in 1963 in encouraging protection against unjustified termination of employment, and thereby favouring the promotion of employment security which is an essential aspect of the right to work. (Endnote 4) The Committee concluded that the issue should be put before the Conference in order to draw up another suitable instrument taking into consideration new developments since the adoption of the Recommendation No. 119. At its 211th Session (November 1979), the Governing Body of the ILO decided to place on the agenda of the 67th Session, 1981, of the International Labour Conference an item on termination of employment at the initiative of the employer. Discussions at the Conference led to the adoption in 1982 of the Termination of Employment Convention (No. 158) and Recommendation (No. 166), which replaced the Termination of Employment Recommendation, 1963 (No. 119).

Content of the Convention and Recommendation

5. The substantive provisions of the Convention contain standards of general application and supplementary provisions concerning terminations of employment for economic, technological, structural or similar reasons which are also mandatory. The standards of general application consist of provisions on the justification for termination, procedures prior to or at the time of termination, the procedure of appeal against termination, the period of notice, and income protection in the event of termination of employment. As a basic principle, the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking. Several reasons are listed as grounds that shall not constitute valid reasons for termination, including union membership or participation in union activities outside working hours (or within working hours, with the consent of the employer); seeking office as, or acting or having acted in the capacity of, a workers' representative; the filing of a complaint or the participation in proceedings against an employer; race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; absence from work during maternity leave; and temporary absence from work because of illness or injury.

6. The Convention also provides for the right of a worker who considers his employment to have been unjustifiably terminated to appeal against that termination to an impartial body empowered to decide whether the termination was justified. In contrast with Recommendation No. 119, in order for the worker not to have to bear alone the burden of proving that the termination was not justified, the Convention has introduced a new provision on the burden of proof. In the procedure of appeal, provision is required to be made for one or the other or both of the following possibilities: the burden of proving the existence of a valid reason for the termination shall rest on the employer, or the competent appeal body shall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to procedures provided for by national law and practice.

7. A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period.

8. In order to ensure a certain level of income protection for a worker whose employment has been terminated, the Convention also provides that the worker shall be entitled to a severance allowance or other separation benefits, or benefits from unemployment insurance or other social security benefits, or a combination of such allowance and benefits.

9. In accordance with the supplementary provisions of the Convention concerning terminations of employment for economic, technological, structural or similar reasons, the employer who contemplates such terminations shall provide the workers' representatives concerned in good time with relevant information and give them an opportunity for consultation on measures to avert or minimize the terminations and measures to mitigate their adverse effects. The employer shall also notify the competent authority of such terminations as early as possible, giving relevant information.

10. Recommendation No. 166 sets forth a number of provisions supplementing those in the Convention. With respect to justification for termination, in addition to the reasons mentioned by the Convention, the Recommendation lists two further grounds which should not constitute valid reasons for termination: age (subject to national law and practice regarding retirement) and absence from work due to compulsory military service or other civic obligations.

11. With regard to the procedure prior to or at the time of termination, the Recommendation makes provision for appropriate written warning before a worker's employment is terminated for misconduct (of a kind that would justify termination only if repeated), as well as for appropriate instructions, written warning and a reasonable period of time for improvement before a worker's employment is terminated for unsatisfactory performance. A worker should be entitled to be assisted by another person when defending himself against allegations regarding his conduct or performance. The Recommendation also provides for notification in writing of a decision to terminate employment and, on request, a written statement of the reason for the termination.

12. A worker should be entitled to reasonable time off from work without loss of pay during the period of notice for the purpose of seeking other employment and to a certificate of employment specifying the dates of engagement and termination of employment and the type or types of work on which he was employed.

13. The Recommendation contains a number of more detailed provisions concerning terminations of employment for economic, technological, structural or similar reasons which provide useful suggestions for the application of the Convention. All parties concerned should seek to avert or minimize as far as possible such terminations and to mitigate the adverse effects of any terminations on the workers concerned; where appropriate, the competent authority should assist the parties in seeking solutions to the problems raised by the envisaged terminations of employment.

14. The employer should consult the workers' representatives when he contemplates the introduction of major changes in the undertaking that are likely to entail terminations, providing them for this purpose with all relevant information on the major changes contemplated and their effects.

15. The Recommendation proposes a number of measures which should be taken or considered with a view to averting or minimizing terminations of employment for economic and similar reasons. The selection by the employer of workers for termination for these reasons should be made according to criteria giving due weight to the interests of the undertaking and to the interests of the workers, and the workers affected should be given a certain priority of rehiring if the employer again hires workers with comparable qualifications. With a view to mitigating the effects of termination of employment, the Recommendation also envisages the promotion through suitable measures of the placement of the workers concerned in suitable alternative employment, retraining where appropriate, and income protection during any course of training or retraining.

Other relevant ILO instruments

16. In addition to these instruments which focus specifically on termination of employment, a number of ILO instruments, and in particular the basic instruments on the protection of human rights, provide protection in the area of employment security, for example in relation to protection against acts of anti-union discrimination (Endnote 5) or against discrimination in employment or occupation, (Endnote 6) maternity protection, (Endnote 7) the protection of workers' claims in the event of the insolvency of their employer, (Endnote 8) or part-time work. (Endnote 9) Other instruments, in particular those which apply to seafarers or migrant workers or those concerning social security, in one way or another touch upon employment protection. The Committee stresses the importance for industrial relations of the instruments on collective bargaining in the present context and also in the future.

Available information and arrangement of the survey

17. For this survey, information available to the Committee consisted of 202 reports received from 107 member States communicated under article 19 of the Constitution. In accordance with its usual practice, it also used the information contained in the reports on ratified Conventions communicated under articles 22 and 35 of the Constitution. The Committee also took into account the observations of a considerable number of employers' and workers' organizations. (Endnote 10) Whilst emphasizing the quality of many of the reports, the Committee regrets that it did not always receive adequate or in some instances any information regarding practical application, and in particular legal decisions, allowing it to evaluate the implementation of certain provisions. It thus endeavoured, following its usual practice, to supplement the information received by referring to legislation, official documents and other appropriate available sources.

18. In the interests of clarity the Committee has chosen to adhere fairly closely to the order of provisions as contained in the instruments. Thus, in the following chapters the Committee examines the definition and methods of implementation (Chapter I) and the scope of the instruments (Chapter II), the obligation for termination to be justified by a valid reason (Chapter III), procedure prior to or at the time of termination and procedure of appeal against termination (Chapter IV), the period of notice (Chapter V), income protection (Chapter VI) and, finally, supplementary provisions concerning terminations of employment for economic, technological, structural or similar reasons (Chapter VII). The final chapter concerns ratification prospects as well as certain difficulties of application mentioned in this respect by governments (Chapter VIII). The Committee will also make a few final remarks by way of a conclusion to its survey.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C003 Maternity Protection Convention, 1919
Conventions: C098 Right to Organise and Collective Bargaining Convention, 1949
Conventions: C103 Maternity Protection Revised) Convention, 1952
Conventions: C111 Discrimination (Employment and Occupation) Convention, 1958
Conventions: C135 Workers' Representatives Convention, 1971
Conventions: C141 Rural Workers' Organisations Convention, 1975
Conventions: C156 Workers with Family Responsibilities Convention, 1981
Conventions: C173 Protection of Workers' Claims (Employer's Insolvency) Convention, 1992
Conventions: C175 Part-Time Work Convention, 1994
Recommendations:R095 Maternity Protection Recommendation, 1952
Recommendations:R111 Discrimination (Employment and Occupation) Recommendation, 1958
Recommendations:R119 Termination of Employment Recommendation, 1963
Recommendations:R143 Workers' Representatives Recommendation, 1971
Recommendations:R149 Rural Workers' Organisations Recommendation, 1975
Recommendations:R165 Workers with Family Responsibilities Recommendation, 1981
Recommendations:R180 Protection of Workers' Claims (Employer's Insolvency) Recommendation, 1992
Recommendations:R182 Part-Time Work Recommendation, 1994