Chapter I. Definition and methods of implementation

Definition

19. Under Article 3 of the Convention, the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer, which restricts the substantive scope of the Convention to this method of terminating the employment relationship, to the exclusion of others. Under this definition, the instruments cover termination of the employment relationship - and not other business relations - at the initiative of the employer - and not at the initiative of the worker or as a result of a genuine and freely negotiated agreement between the parties.

20. Furthermore, while the term "termination" means termination of the employment relationship and not other interruptions, as for example suspension of the employment contract, it should be noted that such suspension, for example, due to illness or maternity, is directly related to termination of the employment relationship in so far as in some countries the worker is protected against termination during the period of suspension of the contract. (Endnote 1)

21. It should also be noted that the definition of termination given for the purpose of the Convention does not require countries to alter the terminology they use, provided that the substantive provisions in national law are applied to the persons covered by the instruments. (Endnote 2)

22. The manner in which the termination of an employment relationship is defined is of particular importance. If, instead of dismissal, the termination of the employment relationship though really at the initiative of the employer is wrongly labelled by him for example as resignation, breach of contract, retirement, modification of the contract, force majeure or judicial termination, the rules of protection governing termination might apparently seem not to apply; but the use of such terminology should not enable the employer to circumvent the obligations with regard to the protection prescribed in the event of dismissal. Certain changes introduced by the employer, in particular as concerns conditions of employment and which do not arise out of genuine operational requirements, might place the worker under pressure either to accept such changes or to give up his job or incur the risk of being sanctioned for having disregarded the employer's instructions. It is therefore necessary to be able to verify whether a situation does not constitute a disguised dismissal or a real termination of the relationship instigated by the employer in the sense of the Convention, since otherwise the worker concerned would de facto or de jure be unduly deprived of the protection provided by the Convention. (Endnote 3)

Methods of implementation

23. Article 1 of the Convention stipulates that "the provisions of this Convention shall, in so far as they are not otherwise made effective by means of collective agreements, arbitration awards or court decisions or in such other manner as may be consistent with national practice, be given effect by laws or regulations". (Endnote 4) Article 1 applies to all the provisions contained in the Convention. (Endnote 5)

24. The Convention leaves to the ratifying State the choice between the different methods of implementation in accordance with national practice, taking account of national differences in the regulation of relations between employers and workers, thus affording considerable flexibility in applying the instrument. If one or more provisions of the Convention are not applied or are applied only partially by means of collective agreements, judicial decisions or other methods, the ratifying State has the obligation of implementing the provision(s) through legislation. (Endnote 6)

25. It should be noted that the methods to which reference is made in Article 1 of the Convention are not equally suitable for giving effect to the Convention in all fields and for all the persons concerned. Thus, for example, although the application in this field of common law, custom or practice results in the enunciation of certain principles for specific cases, such as the right to damages for breach of contract in the event of termination without notice where the worker is not guilty of serious misconduct (wrongful dismissal), they cannot provide the full scope of the protection prescribed by the Convention. Some of the provisions of the Convention which concern, for example, the protection of income or measures in the event of collective termination, generally presuppose the existence of legislative standards and administrative machinery. In countries where there is no legal protection and where collective agreements are not of general application, substantial numbers of workers may be denied the protection prescribed by the Convention, although the scope of the latter is general and, unless certain flexibility clauses are applied, covers all employed persons. (Endnote 7)

26. Although the substantive scope of the Convention is determined by the definition contained in Article 3, it should be pointed out that its provisions relate not only to labour law, but also to such other areas as human rights, appeals procedures before judiciary bodies, social security and employment. This is reflected in the sometimes detailed sources of law mentioned by governments. (Endnote 8)

27. In the large majority of the countries examined, termination of employment is regulated by legislation, frequently in laws of general scope, such as labour codes, (Endnote 9) labour acts (Endnote 10) or civil codes, (Endnote 11) and also in special legislation dealing for example with employment (Endnote 12) or individual employment relationships, (Endnote 13) or in legislation specifically concerned with termination of employment (Endnote 14) or even in constitutional provisions. (Endnote 15) In most cases, several texts must be taken together for an overall view of the situation, (Endnote 16) including for example provisions respecting labour relations, protection of workers' income in the event of unemployment, as well as constitutional provisions, in particular as regards non-discrimination or equality. (Endnote 17)

28. In many cases, collective agreements supplement basic legislative provisions. (Endnote 18) In some countries they are extended to a large number of employees by a declaration of general application when they are concluded between the central organizations of employers and workers. (Endnote 19) Collective agreements or individual contracts may not establish less favourable provisions for workers than those contained in the legal provisions on termination of employment. (Endnote 20)

29. Collective agreements are still, in some countries, the main source of protection for workers against termination of employment. (Endnote 21) Their scope is often limited to a part of the workforce, with the rest being subject to the principles of common law, custom and practice, as in the United States. In Canada, legislation introducing a minimum statutory notice period in the event of termination of employment has been adopted both at the federal and provincial levels. The United States, except the State of Montana, have not adopted any general legislation against unjustified dismissal; collective agreements regulate this matter for some workers, with the rest being subject to common law. (Endnote 22) However, it should be noted that in this country constitutional or legislative provisions on the protection of human rights and protection against unfair labour practices, which are of general application, have provided protection against termination of employment on grounds considered to be unjustified, not only for workers covered by collective agreements, but also for other workers. Furthermore, case-law has moved towards the protection of workers. (Endnote 23) This is also the case in Canada. In other countries, such as Sweden or Italy, basic collective agreements negotiated between the central organizations of employers and workers have been supplemented or replaced by legal provisions. In New Zealand, legislation on individual contracts has replaced the previous system based on collective agreements and arbitration awards. (Endnote 24) The Committee notes that the observations made by the New Zealand Council of Trade Unions (CTU) draw attention to certain gaps in the law as regards equality of protection and access to remedy procedures, advance notice, consultation prior to collective dismissals and compensation. The CTU states in particular that the Act emphasizes the negotiation of employment contracts by individuals or isolated groups and places barriers in the way of effective collective action. According to the CTU, since 1991 workers have been less able to ensure that their employment contracts make provision for these issues.

30. As regards the works rules mentioned among the methods of implementation in Paragraph 1 of Recommendation No. 166, they establish enterprise regulations and procedures which often cover disciplinary sanctions, including termination, as well as staff reductions in some cases. As in the case of collective agreements, it may prove difficult to rely on such rules to give effect to the Recommendation when they only cover the enterprise to which they apply. The situation would be rather different in the case of standard rules, of which each enterprise has to apply the minimum standards.

31. Mention should also be made of codes of practice adopted by some countries concerning equality of opportunity and treatment in employment, or labour relations in general, which deal with various aspects of the protection of employment security. (Endnote 25)

32. Case-law plays a fundamental role, particularly where texts are of a more general nature or scope as regards termination of employment. In the absence of explicit provisions, judicial decisions may also establish certain general principles of law on particular questions in many of the countries.

33. Some countries adopt detailed regulations to apply standards on labour matters, including termination of employment. In Venezuela, for example, the Organic Labour Act provides that in the event of conflicting laws, labour law, whether substantive or procedural, prevails. In case of doubt concerning the application of various provisions that are in force, or in the interpretation of a particular provision, the one most favourable to the worker is applied. Binding constitutional and legal provisions are supplemented, for the resolution of individual cases, by the following, in order: (a) the collective labour agreement or arbitration award, where applicable; (b) the contract of employment; (c) the principles underlying labour legislation, as explicitly or implicitly contained in constitutional declarations, the Conventions and Recommendations adopted by the International Labour Organization and national case-law and jurisprudence; (d) custom and practice, in so far as they do not conflict with the above legal provisions and principles; (e) the universally recognized principles of labour law; (f) general legal standards and principles; and (g) equity. (Endnote 26) In Belarus, the Labour Code provides that, when the Republic has adhered to an international treaty (agreement or Convention) which establishes rules that are different from those prescribed by the Code, the rules of the treaty (agreement or Convention) are applied. (Endnote 27) In Ecuador, in the event of doubt concerning the scope of the provisions of the Labour Code, the courts shall apply them in the manner most favourable to the workers. (Endnote 28) The same principle applies in Brazil.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Endnote 23

Endnote 24

Endnote 26

Endnote 27

Endnote 28

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Recommendations:R119 Termination of Employment Recommendation, 1963
Survey reference:251995G03 General Survey 1995
Survey reference:251995G04 General Survey 1995, para. 83-85