Chapter III. Obligation for termination of employment to be justified by a valid reason

Introduction

75. Article 4 of the Convention provides that "the employment of a worker shall not be terminated unless there is a valid reason for such termination". Article 5 of the Convention (Endnote 1) lists a number of reasons that do not constitute valid reasons for termination of employment. Article 6 of the Convention (Endnote 2) refers more specifically to temporary absence from work because of illness or injury as not constituting a valid reason for termination of employment.

76. The need to base termination of employment on a valid reason is the cornerstone of the Convention's provisions. The adoption of this principle removes the possibility for the employer to unilaterally end an employment relationship of indeterminate duration by means of a period of notice or compensation in lieu thereof. It should be noted here that the question of termination of employment for a valid reason is distinct from that of a worker's right to a period of notice and a severance allowance. The Convention requires that there be a valid reason for termination of employment, whether it is terminated following a period of notice or not. In other words, giving the worker a period of notice does not exempt the employer from stating his reasons for terminating the employment. National laws and practices that only require a valid reason for termination of employment where there is no period of notice (this is generally in the case of serious misconduct) and that do not require justification for termination of employment when notice has been given are not in accordance with the Convention.

77. The Committee wishes to emphasize that the obligation to justify termination of employment with a valid reason only applies to the employer in this Convention. A worker's freedom to end an employment relationship of indeterminate duration, subject to an obligation to give notice, is a basic guarantee of the freedom of labour protected by the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105). (Endnote 3)

78. Under the Convention, the reasons that may be given are those "connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service". Given the general nature of the terms used, the definition of valid reasons in Article 4 of the Convention falls somewhere between the more concise definitions included in some legislation and the more precise definitions contained in other texts, which list the various valid reasons for termination. It is largely consistent with the definition used in a number of countries where the concepts of the capacity and conduct of the worker and the operational requirements of the undertaking, establishment or service are in keeping with most of the specific reasons considered as valid for the termination of employment in certain legislation.

79. During the preparatory work, the Office indicated that for reasons connected with the capacity or conduct of the worker to be considered as valid, they must have a bearing on the work of the worker or the working environment. (Endnote 4) It was also specified that Article 1 of the Convention on methods of implementation applies to the whole of the instrument (Endnote 5) and that it therefore also applies to Article 4. In other words, the definition or interpretation of valid reasons is left to the methods of implementation referred to in Article 1, subject of course to the requirement that it must be in conformity with Article 4.

The need for a valid reason

80. Often under the impetus of the adoption by the Conference of the Termination of Employment Recommendation, 1963 (No. 119), since the 1960s numerous countries all over the world have adopted legislation protecting workers against termination of employment without valid reason. Today a large number of countries provide protection for workers against unjustified termination of employment.

81. The legislation of some countries details reasons that are considered to be justified for termination of employment. (Endnote 6) The reasons given are usually connected with the conduct or capacity of the worker, or with the operational requirements of the undertaking. (Endnote 7) In other countries, legislation uses the same or similar terms to those of the Convention. (Endnote 8) In yet other countries, legislation is less specific, requiring, for example, a "valid reason" or "real and serious grounds". (Endnote 9) It is primarily the bodies responsible for applying these provisions which have accumulated a body of case-law in this field which is sometimes extensive. (Endnote 10) This is also the case in countries where measures of redress are provided for terminations of employment without legitimate reason that are considered to be wrongful (abusifs). (Endnote 11)

82. Sometimes the powers conferred on the competent authorities to permit certain forms of termination of employment can only be exercised if criteria are invoked to justify them. (Endnote 12) If legislation does not explicitly lay down the criteria whereby the administrative authorities may grant or refuse authorization, thus leaving them a fairly wide margin of judgement, it appears that in practice authorization is only granted if the employer can justify termination. The justification should be based on a reason connected with the conduct or capacity of the worker or operational requirements.

83. In some countries, the legislation requires a valid reason for termination of employment, but only in the case of termination of employment without notice and not in the case of termination of employment with notice. (Endnote 13) In others, the concept of the abusive exercise of a legal right laid down in civil law may offer a certain amount of protection. (Endnote 14) This concept has been systematically applied in Japan, where civil courts have established that, in the case of termination of employment with notice, the employer must cite a pressing reason, often termed just or reasonable cause, for termination of the employment relationship. This means that where the termination of employment is not objectively reasonable or socially acceptable, it is deemed to be an abuse of the right to terminate employment, and is therefore null and void. It should be noted that when a firm system of rules limiting the discretionary exercise of the right of dismissal is developed through case-law on the basis of the concept of the abusive exercise of a legal right, this system should cover all the valid reasons for termination of employment encompassed by Article 4 of the Convention; otherwise, a system of protection based only on the concept of the abusive exercise of a legal right would be unlikely to give full effect to the principle set out in Article 4. (Endnote 15) In a number of these countries, specific provisions or case-law protects workers against termination of employment for particular reasons. (Endnote 16) The Government of Greece has stated that, whilst most workers are not protected by specific provisions and may have their employment terminated without reason, the case-law applied by the courts, based on section 281 of the Civil Code, has declared wrongful (resulting in their invalidity) terminations of employment for reasons such as the filing of a complaint for alleged violation of laws or regulations, political opinion, dismissal during the period preceding call-up for military service, age or family responsibilities.

84. In one country, different provisions are applied to wage-earners and salaried employees. With regard to wage-earners, the law considers termination of employment to be abusive when it is carried out for reasons not linked to any of the valid reasons provided for in the Convention. In the case of salaried employees, reference is made to the general concept of the abusive exercise of a legal right. (Endnote 17)

85. In the United States, the doctrine whereby the employment relationship is considered to be at the will of the parties has been eroded by exceptions established by Congress, state legislatures and the courts, to the point where, according to the Government, it only applies to a small number of terminations of employment. If the termination of employment comes under one of the recognized exceptions, the employer is no longer free to terminate the employment relationship at will and may be liable to be sued for wrongful dismissal. Approximately 20,000 cases are currently under examination by the courts. Since the 1970s, state courts have increasingly restricted the right of employers to terminate employment at will through the application of common law principles. In wrongful dismissal cases they have created exceptions, based on public policy, implied contract, good faith and fair dealing, and tort. (Endnote 18) Furthermore, in this country collective agreements often contain clauses that provide that employees will not be discharged except for "just cause" and establish grievance and arbitration procedures. Over the years, arbitrators have also drawn up a set of relatively coherent rules regarding termination of employment.

Reasons for termination of employment

86. Under Article 4 of the Convention, valid reasons for the termination of employment must be connected with the capacity or conduct of the worker, or be based on the operational requirements of the undertaking, establishment or service.

87. Before looking at the various reasons outlined in the Convention and their application, it should be mentioned here that, depending on the reason invoked, the applicable provisions of legislation or collective agreements, both substantive and procedural, may differ. For example, incompetence or unsatisfactory performance, which may be caused by a lack of skills or natural ability, constitutes a reason for termination connected with the capacity of the worker; on the other hand, if the employer invokes professional misconduct, such as the worker's bad faith or negligence in his work, the classification of the termination of employment will usually change. Instead of termination of employment on the grounds of the capacity of the worker, it will be based on the conduct of the worker and may lead to disciplinary action.

88. The more general the terms used in the applicable provisions, the more the definition of valid reasons for termination of employment depends on how these provisions are interpreted by the bodies that apply them (courts, industrial tribunals, arbitrators or other bodies). To understand the extent to which the reasons considered in practice as justifying termination of employment correspond to the valid reasons covered by the Convention, it is therefore important for countries which ratify the Convention to communicate the decisions which form the basis of case-law or to provide relevant information on how the provisions are applied in practice.

Reasons connected with the conduct of the worker

89. Article 4 of the Convention refers expressly to termination of employment "connected with the conduct of the worker". Traditionally, a worker's improper behaviour is treated as misconduct and can result in termination of employment if it is considered to be sufficiently serious. Reasons for termination of employment connected with the conduct of the worker can be constituted either by professional misconduct, which may lead to disciplinary action and termination of employment, or improper behaviour.

90. The types of conduct for which a worker may be dismissed are frequently referred to in legislation in general terms such as "misconduct" or "breach of discipline", but more precise definitions can also be found. Misconduct, when defined, can belong to one of two categories: the first usually involves inadequate performance of the duties the worker was contracted to carry out; the second encompasses various types of improper behaviour. The first category may include such forms of misconduct as neglect of duty, violation of work rules (particular mention is sometimes made of rules related to safety and health), disobedience of legitimate orders and absence or lateness without good cause. The second category includes in particular disorderly conduct, violence, assault, using insulting language, disrupting the peace and order of the workplace, turning up for work in a state of intoxication or under the influence of narcotic drugs, or the consumption of alcohol or drugs at the workplace, various acts displaying a lack of honesty and trustworthiness, such as fraud, deceit, breach of trust, theft and various disloyal activities (such as divulging trade secrets or undertaking activities in competition with the employer) or causing material damage to the property of the undertaking. Certain forms of misconduct, such as absence or lateness without good cause or turning up for work in a state of intoxication, often have to be habitual or repeated if they are to warrant dismissal.

91. In several countries, legal provisions differentiate between various degrees of misconduct; one of these is serious misconduct, which gives rise to summary dismissal (in some countries subject to the condition that the misconduct must be such as to make it impossible to permit even temporary continuation of the employment relationship), and the other is misconduct of a less serious nature, which may lead to termination of employment with notice. In some countries, legislation only envisages one category of misconduct, namely misconduct that justifies termination of employment without notice. (Endnote 19)

92. In some cases, behaviour outside the workplace can affect the continuation of the contract of employment, in particular with respect to behaviour that has resulted in the imprisonment of the worker. (Endnote 20) In the case of a worker serving a sentence of imprisonment, the Committee is of the opinion, as it stated in its General Survey of 1974 on Recommendation No. 119, that unless the interruption of the employment is likely to be so long as to rule out the maintenance of the employment relationship, it would be desirable to seek, where possible, merely to suspend the relationship and retain the worker's job for him with a view to helping him to return to normal life after his sentence is served. (Endnote 21)

93. Given that termination of employment is the most serious disciplinary measure that a worker can suffer for reasons related to his conduct, in cases where legislation grants the employers a certain amount of leeway, it is important that, taking into account the nature of the misconduct, the employers do not fail to consider all other possible forms of disciplinary action before applying this measure of last resort.

Reasons connected with the capacity of the worker

94. A lack of capacity, or aptitude, on the part of a worker can take two forms. It can result from a lack of the skills or qualities necessary to perform certain tasks, leading to unsatisfactory performance. Lack of capacity is therefore distinct from bad conduct, for which it is necessary to demonstrate a certain degree of "guilt" on the part of the worker. Poor work performance not caused by intentional misconduct, as well as various degrees of incapacity to perform work as a result of illness or injury, are also covered by the concept of the capacity of the worker.

95. As in the case of misconduct, (Endnote 22) the worker can be offered some safeguards with regard to termination of employment for reasons connected with capacity, such as careful assessment of his work, warning him about the possible consequences if the quality of his work does not improve, and allowing him to demonstrate his skills and to improve his work performance. With respect to absence from or incapacity to work due to illness or injury, protective measures are often adopted and are more extensive if the injury or illness is of an occupational nature. Article 6 of the Convention mentions the case of absence from work because of illness or injury as not constituting a valid reason for termination of employment. This question is examined below. (Endnote 23)

Reasons based on the operational requirements of the undertaking, establishment or service

96. The concept of the "operational requirements" of the undertaking is not defined in the Convention or the Recommendation. The report presented by the Office for the first discussion at the Conference stated that these reasons "generally include reasons of an economic, technological, structural or similar nature. Dismissals resulting from these reasons may be individual or collective and may involve reduction of the workforce or closure of the undertaking". (Endnote 24) In its General Survey of 1974 on Recommendation No. 119, the Committee pointed out that reasons relating to the operational requirements of the undertaking were generally defined by reference to redundancy or reduction of the number of posts for economic or technical reasons, or due to force majeure or accident. (Endnote 25)

97. In one country, the following reasons are given as examples: rationalization or modernization of undertakings, establishments or services, a fall in production, changed market or economic conditions requiring the dismissal of one or more workers and failure of the worker to adapt to the work or technique. (Endnote 26) In France, it has been ruled that a termination of employment is not for an economic reason if it is the result of a reorganization that has not been carried out in the interests of the undertaking. (Endnote 27)

98. Reasons related to the operational requirements of the undertaking, establishment or service could also be defined in negative terms as those necessitated by economic, technological, structural or similar requirements which are not connected with the capacity or conduct of the worker. Sometimes specific conditions and procedures apply to termination of employment for these reasons, such as the employer's obligation to prove that the termination of the contract of employment is dictated by operational requirements when he invokes this reason, or a restriction on the number of workers whose employment can be terminated for this reason within a year, (Endnote 28) or the obligation to take social factors into account. (Endnote 29)

Prohibition of termination of employment for certain reasons

99. While Article 4 sets forth the principle that the employment of a worker should not be terminated unless there is a valid reason, Article 5 provides that certain reasons do not constitute valid reasons for termination. (Endnote 30) Article 6 of the Convention refers more specifically to temporary absence because of illness or injury, which is considered to be an invalid reason.

Invalid reasons for termination of employment in the Convention

100. Under Article 5 of the Convention, "the following, inter alia, shall not constitute valid reasons for termination: (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers' representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from work during maternity leave".

101. Article 5 lists a minimum number of grounds that do not constitute valid reasons for termination of employment. However, the list is not exhaustive, as the term "inter alia" indicates, and the State clearly has the possibility, although by no means the obligation, to provide that other reasons are not valid, as for example, those laid down in Paragraph 5 of the Recommendation. In fact, many States provide a special protection for other reasons, such as participation in strikes, non-membership of a trade union, refusal to undergo a lie-detector test, state of health, physical disability, etc. (Endnote 31)

102. Protection against some of the invalid reasons for termination of employment included in Article 5 of the Convention reflect the protection laid down in a number of other ILO instruments, in particular the Right to Organize and Collective Bargaining Convention, 1949 (No. 98); the Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111), 1958; the Workers' Representatives Convention (No. 135) and Recommendation (No. 143), 1971; the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), 1981; the Maternity Protection Convention, 1919 (No. 3), the Maternity Protection Convention (Revised), 1952 (No. 103), and the Maternity Protection Recommendation, 1952 (No. 95). The Committee has considered the protection provided by these instruments and their application in its recent general surveys on freedom of association, workers with family responsibilities and equality in employment and occupation. (Endnote 32)

103. As indicated in the aforementioned General Surveys, a considerable number of countries protect workers against termination of employment for one or more of the reasons set forth in Article 5 of the Convention, generally by means of legislation. (Endnote 33) This is the case both in countries that require termination of employment to be justified and in those where there is no requirement for justification. These forms of protection are usually included in more far-reaching policies intended to guarantee, for example, trade union rights, a comprehensive system of workers' representation within the enterprise, the right to claim protection under legislation governing work and employment, and equality of treatment. Some of these guarantees were instituted even before protection against unjustified termination of employment was incorporated into the legislation.

104. Explicit guarantees are nevertheless also useful in countries where there is a more general system of protection, particularly where legislation provides a general definition of the obligation to justify termination of employment. In countries that have not instituted a general system of protection against termination of employment without valid reason or in those in which this system only provides partial protection, specific forms of protection against termination of employment for one of the reasons enumerated in Article 5 of the Convention take on particular importance. (Endnote 34)

(a) Union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours

105. This provision is based, among other sources, on Article 1 of the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), one of the aims of which is to protect the worker against termination of employment for reasons connected with union membership or activities.

106. Trade union membership and participation in trade union activities constitute one of the most common invalid reasons for termination of employment.

107. As has already been pointed out by the Committee, the protection afforded to workers and trade union officials against acts of anti-union discrimination constitutes an essential aspect of freedom of association, as acts of this nature may result in practice in a denial of the guarantees laid down in the Freedom of Association and Protection of the Right to Organize Convention, No. 87. (Endnote 35)

108. In a number of countries, workers are protected against acts of anti-union discrimination under general labour legislation or specific legal provisions. (Endnote 36) Other legislation provides no general protection in this area (Endnote 37) or denies it directly or indirectly to certain categories of workers. (Endnote 38) Legislation sometimes guarantees protection against acts of anti-union discrimination, including termination of the employment relationship. (Endnote 39) Some legislation grants special protection to certain persons, such as the members of a trade union that has applied for registration or that is in the process of being established, (Endnote 40) the founders of a trade union, (Endnote 41) or trade union leaders and officers. (Endnote 42)

109. In several countries legislation expressly stipulates that termination of employment due to participation in a strike is unlawful (Endnote 43) or null and void. (Endnote 44) In contrast, in one country, workers who participate in industrial action run the risk of having their employment terminated and do not have the right to make a complaint for unfair dismissal to an industrial tribunal. (Endnote 45)

110. Protection against acts of anti-union discrimination, and in particular termination of employment for such activities, is particularly necessary for trade union leaders and representatives, since in order to be able to fulfil their duties freely and independently they must have the guarantee that they will not suffer any prejudice as a result of holding trade union office or taking up trade union activities. One way of ensuring the protection of trade union representatives is to stipulate that their employment may not be terminated either during their term of office or for a certain period of time following its expiry. Whilst some exceptions may be laid down for cases of serious misconduct, the nature and the importance of the duties performed by a trade union representative and the demands of this kind of office should be taken into account when deciding whether an offence has really been committed and when determining how serious it is. (Endnote 46)

111. It should be noted that, during the preparatory work, an amendment aiming to extend the protection accorded by the Convention to workers not wishing to join a trade union or participate in its activities was rejected. (Endnote 47) In some countries, legislation guarantees either directly or indirectly the right not to join a trade union and forbids the exercise of any constraint which would oblige anyone to join or support a trade union. (Endnote 48)

(b) Seeking office as, or acting or having acted in the capacity of, a workers' representative

112. Protection against termination of employment as a result of trade union membership or participation in trade union activities, provided for in Article 5(a) of the Convention and in national legislation, generally covers trade union officials who are acting as workers' representatives for a number of reasons. Workers' representatives are specifically mentioned in Article 5(b) of the Convention in order to ensure similar protection to people who are acting as workers' representatives outside the trade union context. This provision adopts the logic of the Workers' Representatives Convention, 1971 (No. 135), Article 1 of which provides that workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers' representative or on union membership or participation in union activities. (Endnote 49) Under Article 5(b) of Convention No. 158, a workers' representative shall not be dismissed for reasons connected with his office, not only during his term of office, but also before, when he is seeking it and after performing his duties as a representative. Depending on the country, workers' representatives may include various categories of persons, including trade union delegates, staff delegates and members of works councils and of safety and health committees. (Endnote 50)

113. A significant number of countries provide protection for workers' representatives and often supplement the basic provisions against termination in general with a number of specific procedures to be followed when termination of a worker's representative's employment is contemplated. (Endnote 51) In many cases, prior notification or authorization is required and is often granted by an administrative authority, such as the labour inspectorate or a works council. (Endnote 52) Sometimes a limitative list of the reasons for termination is established. (Endnote 53)

114. In Belgium, for example, it is prohibited to dismiss a workers' representative for any reason other than serious misconduct or economic or technical reasons. In that country, as in others, unlawful termination of the employment of workers' representatives is invalid. (Endnote 54) A growing number of countries are adopting legal provisions to protect workers' representatives responsible for occupational safety and health issues. (Endnote 55)

(c) The filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities

115. This invalid reason for termination of employment is an important aspect of employment security as it provides protection for workers against retaliatory measures. (Endnote 56) In its General Surveys on equal remuneration and on equality in employment and occupation, the Committee emphasized this point with respect to rights in the fields of equal remuneration and equality of opportunity and treatment. (Endnote 57)

116. Protection of this kind can be established through provisions to protect workers against retaliatory measures when they try to defend their rights under the Constitution, the Labour Code or other legislative provisions. (Endnote 58) Thus, in a growing number of countries there are legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meet standards set by law, discriminatory practices in employment (Endnote 59) or non-compliance with occupational safety and health provisions. (Endnote 60) Sometimes protection is of more limited scope and is restricted to the rights resulting from the contract of employment. (Endnote 61)

117. In the General Survey on equality in employment and occupation, the Committee emphasized more specifically that the effective protection of the principle of equality presupposes the existence of guarantees providing protection against retaliatory measures for a person who lodges a complaint with the appropriate body, who institutes proceedings to enforce his or her rights, or who is a party to such proceedings as a witness. Such measures, the most brutal form of which is termination of employment, taken against a person who has suffered discrimination and who has availed himself of a right which is his in accordance with the national policy of equal opportunity and treatment, are of a particularly serious nature and can have detrimental effects with regard to the practical application of anti-discriminatory provisions, as those who have suffered discrimination often hesitate to have recourse to procedures to redress their grievances for fear of reprisals. (Endnote 62) The Committee also emphasizes the seriousness of retaliatory measures, in particular in the form of termination of employment, taken against a worker who reports the employer's failure to apply occupational safety and health rules whilst the workers' physical integrity, health, and even lives may be at risk. When fundamental rights or the physical integrity or lives of workers are at stake, it would be desirable for conditions as to proof (reversal of the burden of proof) and measures of redress (reinstatement) to be such as to allow the worker to report illegal practices without fearing reprisals, although that is not an explicit requirement of Convention No. 158.

(d) Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin

(e) Absence from work during maternity leave

118. The invalid reasons for termination of employment listed in paragraph 5(d) of the Convention encompass all the prohibited forms of discrimination in employment and occupation laid down in Article 1 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). In addition, specific mention is also made of marital status and pregnancy, (Endnote 63) and also family responsibilities, which are expressly mentioned in Article 8 of the Workers with Family Responsibilities Convention, 1981 (No. 156), as not constituting, as such, a valid reason for termination of employment. (Endnote 64) The invalidity of absence from work for maternity leave as a reason for termination of employment embodies a basic principle enshrined since 1919 and reaffirmed in 1952 in ILO standards on maternity protection. (Endnote 65)

119. Race, colour, national extraction and social origin have in common the fact that they are generally related to the presence of different ethnic and/or social groups within the same country. The concept of race does not in fact correspond to any precise scientific definition, the important point being the perception that those concerned have of their differences and the resulting attitudes in their relations with one another, in particular as regards employment. Although the most apparent, colour is just one of the characteristics of human beings. National extraction refers to the distinctions made between the citizens of a country depending on their place of birth, extraction or foreign origin. Social origin has been viewed mainly in terms of social stratification and can in particular cause problems when society is divided into "castes". As for religion, while it overlaps with protection of the right to freedom of conscience as it relates to employment, in relations between communities of different religions it can pose problems similar to those existing between racial or ethnic communities. With regard to political opinion, protection under the Convention implies that this must be recognized in respect of activities expressing or demonstrating non-violent opposition to political principles, given that protection of unexpressed or undemonstrated opinions would be irrelevant. Discriminatory dismissals targeted at members of ethnic, linguistic or religious minorities are covered by the various invalid reasons included in Article 5 of the Convention, such as race, national extraction and religion. Although the Convention does not seek to protect ethnic, religious or linguistic minorities as such, it does protect the members of these minorities against any wrongful dismissal they may suffer as members of these minorities having ethnic or national characteristics, or professing certain religious beliefs or political opinions. Distinctions based on sex encompass those which are established explicitly or implicitly to the detriment of one sex or the other. In practice, it is mainly women who run the risk of having their employment terminated for reasons based on their sex.

120. Marital status more frequently constitutes a reason for termination of the employment of women than men, while family responsibilities, although in practice still borne by women more than by men, are a reason for dismissal that may increasingly affect men. During the preparatory work it was stated, with reference to Convention No. 156, that the term "family responsibilities" may be taken to refer to responsibilities of men and women workers "in relation to their dependent children" and "to other members of their immediate family who clearly need their care or support". (Endnote 66)

121. Many countries have reported that several or all of the invalid reasons included in Article 5(d) also constitute invalid reasons for termination of employment under the national provisions. In some cases, the legislation mentions them specifically, (Endnote 67) in others, constitutional or legislative provisions respecting equality refer to various prohibited grounds for distinction, although the extent to which these grounds are considered as invalid reasons for termination of employment depends on the bodies responsible for applying these provisions and, in particular, on the outcome of appeals. (Endnote 68) The government of one country stated that protection against discrimination clearly extends to termination of employment even if the law does not expressly prohibit termination on the basis of one of the prohibited grounds. (Endnote 69) Sometimes legislation does not include all the invalid reasons listed in Article 5(d), while other legislation refers to additional reasons such as age or disability.

122. The Committee has commented on the application of Convention No. 111 in relation to dismissals based on certain grounds of discrimination that constitute invalid reasons for termination of employment under Article 5(d) of Convention No. 158. (Endnote 70) Since its 1988 General Survey of the application of the Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111), 1958, the Committee has furthermore noted with satisfaction progress made in the application of Convention No. 111 in relation to the various prohibited grounds of discrimination following the adoption of constitutional or legislative provisions or the modification of discriminatory practices. (Endnote 71)

123. The Committee notes that in some countries recent legal provisions afford general protection against discrimination in employment or specific forms of protection against termination of employment on the basis of one or more of the reasons considered as invalid under Article 5(d) of the Convention. (Endnote 72) In Namibia, for example, the new Labour Act provides that a dismissal decided for reasons pertaining, inter alia, to sex, race, colour, ethnic origin, religion, belief, social or economic status, political opinion or marital status is not valid. (Endnote 73)

124. Furthermore, the Committee notes that some countries have recently adopted protective legislation against sexual harassment at the workplace. (Endnote 74)

125. The Committee studied national situations with regard to family responsibilities and marital status as invalid reasons for termination of employment in its 1993 General Survey on the Workers with Family Responsibilities Convention (No. 156) and Recommendation (No. 165), 1981. The Committee noted (Endnote 75) that very few countries had legislated to make family responsibilities an explicit ground on which discrimination in respect of all aspects of the employment relationship was proscribed. Those that had done so had clearly taken this action within the framework of wider measures to ensure equality of opportunity and treatment in employment. In addition to the countries mentioned in that General Survey, (Endnote 76) the Committee notes further information and developments in this respect. In Australia, for example, the New South Wales Industrial Relations Commission considered in one case that the dismissal of a worker following his absence from work to support his wife (in a difficult birth) during the birth of their child was, in the circumstances of the case, a harsh, unfair and unjust dismissal of the highest degree. (Endnote 77) In Croatia an employment relationship cannot be terminated for a single or adoptive parent with a child seven years old or less, or in the case of a parent or adoptive parent with three or more dependent children. (Endnote 78) In the United States, provisions with regard to family/parental leave were adopted recently. (Endnote 79) In France, parental leave to bring up a child has been extended to all workers, whatever the size of the undertaking, and unpaid leave to care for sick children has been introduced. (Endnote 80) In Italy, the Constitutional Court judged as constitutional a provision that grants the father of a child of a female worker the possibility to take, instead of the mother, certain leave intended for child welfare and maternity protection. (Endnote 81)

126. Protection against termination of employment in the event of pregnancy or absence from work during maternity leave is an essential component of protection against termination of employment on grounds of sex, and it is also an important aspect of policies of equality in employment and occupation. (Endnote 82) This guarantee aims to prevent women from being discriminated against during pregnancy and maternity and to save female workers the material and moral consequences that the loss of their employment could have both for themselves and for their children. This concern has been embodied, in so far as maternity leave is concerned, in the two Conventions dealing with this issue, namely Conventions Nos. 3 and 103, in a provision prohibiting the termination of a woman's employment during her maternity leave and, under certain conditions, during a period immediately before or after that leave. (Endnote 83)

127. Many countries protect pregnant women or new mothers against termination of employment. (Endnote 84) This protection often covers the entire pregnancy, of which the employer must be notified, generally by means of a medical certificate. (Endnote 85) In some cases it only covers a few months before confinement (Endnote 86) or only the period of absence for maternity leave. (Endnote 87) After confinement, the length of the period varies depending on whether the legislation of a country covers the postnatal period, (Endnote 88) the nursing period (Endnote 89) or periods other than the postnatal and nursing periods. (Endnote 90) In China, for example, the law prohibits the dismissal of a female worker because she gets married, becomes pregnant, takes maternity leave or nurses her infant. (Endnote 91) In one country, the guarantees provided for a biological mother have been extended to an adoptive mother, the date of confinement corresponding to the date on which the adoption officially took effect. (Endnote 92) Some countries establish a presumption that termination of employment during the period of protection is based on pregnancy or maternity. (Endnote 93) In other countries, it is prohibited to discriminate on the grounds of maternity. (Endnote 94) In Spain, in a June 1994 decision, the Constitutional Court, in connection with the scope of sex discrimination, ruled that failure to renew a temporary contract on account of pregnancy was comparable to a dismissal in violation of fundamental rights. (Endnote 95)

128. Legislation in some countries allows a worker's employment to be terminated if necessary during pregnancy or postnatal leave for reasons related to the reorganization of the enterprise, (Endnote 96) but with certain restrictions, and sometimes only with prior authorization. (Endnote 97) Periods of absence for maternity leave vary, (Endnote 98) with postnatal leave sometimes being longer than prenatal leave. (Endnote 99) Prenatal leave can sometimes be partially or entirely deferred until after confinement. (Endnote 100) The protection of the Convention applies in all circumstances, whatever the period of prenatal or postnatal leave provided for in the national legislation.

Invalid reasons for termination of employment in the Recommendation

129. Under Paragraph 5 of the Recommendation, "the following should not constitute valid reasons for termination:

(a) age, subject to national law and practice regarding retirement;

(b) absence from work due to compulsory military service or other civic obligations, in accordance with national law and practice."

(a) Age

130. The preparatory work reveals that the retirement age referred to in the Recommendation may be lower than that at which entitlement to an old-age pension begins. In fact, an amendment to insert the following text: "age, subject to national law and practice regarding retirement at or after the age normally qualifying for an old-age benefit", was not accepted. Several Government members indicated that this amendment would raise problems in their countries since, under national law and practice, in situations of crisis, it was possible for the employment of workers near retirement age to be terminated with considerable income protection until the age of retirement. The Office confirmed that if this amendment were adopted, early retirement effectuated by termination of employment by the employer, with financial support not in the form of an old-age benefit, would not be authorized. (Endnote 101)

131. In some countries, legal provisions have been adopted to protect older workers against discrimination in general and termination of employment on account of age in particular. These measures are based on the idea that the assessment of the work of a person who has reached a certain age should be based on the abilities he displays and not on his age. In some cases, legislation prohibits discrimination on account of age or the termination of a person's employment on the ground of age. (Endnote 102) In one country, enterprise practice seems to be in favour of an extension of the compulsory retirement age. (Endnote 103) In the Russian Federation, the Constitutional Court has described the dismissal of workers who are entitled to a full old-age pension, once they reach retirement age, without taking the circumstances into consideration, as being contrary to the Constitution and to the Declaration of 1991 of the rights of the individual and of the citizen. (Endnote 104) In other countries, however, a worker who is eligible for full old-age benefits may have his employment terminated, (Endnote 105) although legislation sometimes specifies a minimum age. (Endnote 106)

(b) Military service

132. National provisions often guarantee employment security for workers called to serve their country during military service. In some countries, the contract is suspended for the duration of the military service, sometimes subject to certain exceptions and conditions, for example the condition that the worker should inform the employer that he wishes to resume his employment. (Endnote 107) Sometimes employment security is guaranteed not only during military service, but also for a certain period of time after its completion. (Endnote 108) As far as insurance plans and other benefits are concerned, in one country a worker's absence for military service is treated as leave. (Endnote 109) In another country, employment security is guaranteed to persons who have volunteered for military training. (Endnote 110)

(c) Other civic obligations

133. During the preparatory work, the Office stated that it had in mind, when including these words in the questionnaire in Report VIII(1), such obligations as the duty to participate in elections and jury service. (Endnote 111)

Other invalid reasons included in national provisions

134. In many countries, constitutional or legislative provisions regarding equality refer to various invalid reasons other than those mentioned in Convention No. 158 and Recommendation No. 166, or to various prohibited grounds for distinction in addition to those included in Convention No. 111 (Article 1). As the Committee has stated, (Endnote 112) the extent to which these grounds are considered to be invalid reasons for termination of employment will depend on the decisions of the bodies responsible for applying these provisions, and in particular on the outcome of appeals. The prohibited grounds for distinction refer for example to citizenship, (Endnote 113) sexual orientation, (Endnote 114) the existence of a police record, (Endnote 115) level of education, (Endnote 116) or being a trainee in a vocational training school. (Endnote 117) Sometimes the legislation explicitly mentions certain reasons as not constituting valid reasons for termination of employment, such as participation in a strike. (Endnote 118)

135. In an increasing number of countries, persons with disabilities are protected against discrimination (Endnote 119) and often benefit from certain guarantees against termination of employment. In the words of the United States Congress: "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society". (Endnote 120) The Americans with Disabilities Act (ADA) of 1990, (Endnote 121) which gives a comprehensive mandate for the elimination of discrimination against individuals with disabilities, prohibits discrimination against a qualified individual under the law, in particular as regards discharge. (Endnote 122) In the Philippines, the Magna Carta for Disabled Persons of 1992 prohibits any discrimination in the employment of a disabled person with regard to termination of employment. (Endnote 123) In Australia it is unlawful for an employer to discriminate against an employee on the ground of the employee's disability by dismissing the employee. (Endnote 124) In several countries, the employment of persons with disabilities can only be terminated with the consent of a competent authority. (Endnote 125) The Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), lays down the principle of equality of opportunity and treatment between disabled workers and workers in general, in particular, as stated in the Recommendation (No. 168), in respect of access to and retention of employment. The Committee considers that the protection of persons with disabilities is of particular interest. It will carry out a General Survey on the standards concerning vocational rehabilitation, which will be submitted to the Conference in June 1998.

Temporary absence from work because of illness or injury

136. Article 6 of the Convention provides that "temporary absence from work because of illness or injury shall not constitute a valid reason for termination. The definition of what constitutes temporary absence from work, the extent to which medical certification shall be required and possible limitations to the application of paragraph 1 of this Article shall be determined in accordance with the methods of implementation referred to in Article 1 of this Convention".

137. Under this Article, the termination of the employment relationship because of a temporary absence due to illness is, in principle, not valid; this reason is thus comparable to those listed in Article 5 of the Convention. The Convention allows, however, for certain restrictions that can be determined by national methods of implementation. The Convention does not define the concept of illness or injury. These terms are commonly accepted as meaning both illness and injury that are not related to work and occupational illness and injury. Nor does it define the concept of temporary absence; however, the term "temporary" implies in itself that the protection may be restricted to a certain length of absence. Moreover, the Convention does not specify what sort of restrictions might be established. One of the restrictions could be related to repeated absences as a result of illness. (Endnote 126) It should also be mentioned that breach of contract following extended leave due to illness or injury if permitted by national law should be seen as a termination that would normally give rise to severance allowances and other similar benefits, and not as a breach of contract by the employed person. The concept of temporary absence seems to be defined by national methods of implementation. It is essentially defined in terms of its length, which varies considerably, and can range from some months to several years; (Endnote 127) many countries have adopted a duration of six months. In practice, temporary absence generally results in a suspension of the employment contract for a specific period (with the employer continuing to pay benefits or coverage being supplied in part or in full by social security benefits) and a prohibition to terminate employment during this period or during a prescribed period. (Endnote 128) Although the Convention leaves the definition of temporary absence to national provisions, the Committee considers that where the absence is defined in terms of its duration, it should be compatible with the aim of the Article, which is to protect a worker's employment at a time when, for reasons of force majeure, he is unable to carry out his obligations. In other countries, the main criterion is capacity for work. For example, in one country, an illness suffered by a worker cannot be deemed to constitute grounds for termination of employment in so far as it has not caused a substantial and permanent reduction of capacity for work. (Endnote 129)

138. As regards victims of occupational injuries and diseases, the Committee considers that it would be advisable that they enjoy additional protection. This sometimes involves an extension of the period for which the contract is suspended. In some cases, the legislation provides that the contract shall be suspended for the whole period of incapacity following the occupational injury. (Endnote 130) The Committee notes with interest that in some countries a person who has suffered an occupational injury or disease enjoys additional protection. In China, the employer does not have the right to terminate a worker's employment if the worker has partially or entirely lost his capacity to work as a result of an occupational disease or injury. (Endnote 131) In France, a victim of such a disease or injury may not be dismissed unless the employer justifies it either on the grounds of serious misconduct or because it is impossible to continue the contract for a reason that is unconnected with the disease or injury. (Endnote 132)

139. When a worker is unfit to return to his former job after a period of suspension of the contract of employment, some countries have adopted provisions whereby the employer is obliged to place him in another job. (Endnote 133) This obligation exists in Bulgaria in cases of permanent incapacity or medical contra-indications, and also in France for all cases of physical incapacity (whether or not such incapacity is the result of an occupational disease or injury). (Endnote 134)

140. A medical certificate is generally required for absence of more than a specified number of days. (Endnote 135) In general, the worker must quickly inform the employer of his absence due to illness or injury, and send him a medical certificate within a certain period.

141. The Committee notes that sometimes a worker has only a very short period of time to inform his employer. (Endnote 136) It would be advisable that this period be reasonable, in keeping with the means of communication available to the worker and not be interpreted restrictively if the worker is clearly acting in good faith or if force majeure has prevented him from notifying his employer within the prescribed period.

142. Limitations can also be the consequence of repeated absences due to illness, such absences being sometimes seen as disturbing the smooth running of the enterprise. Specifically, in the case of persons infected by the human immunodeficiency virus (HIV) and those suffering from acquired immunodeficiency syndrome (AIDS), the statement resulting from a joint consultation held in 1988 by the World Health Organization (WHO) in collaboration with the ILO recommends that workers infected with HIV who are in good health be treated in the same way as other workers, and that those with HIV-related illnesses, including AIDS, be treated the same as any other ill workers. According to this statement, HIV infection is not a cause for termination of employment; persons with HIV-related illnesses should be able to work as long as medically fit for available, appropriate work. (Endnote 137) With regard to such illnesses, which may require periodic treatment, the Committee deems it particularly important to carefully weigh and evaluate the repercussions that absences of this kind may have in practice on the operation of the enterprise, bearing in mind the difficult consequences that termination of employment can entail for the worker. (Endnote 138) The Committee points to the necessity of taking appropriate measures to protect the persons who work in contact with those having such illnesses.

Endnotes

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Legislation

See related national legislation from Natlex

Greece: Civil Code

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C003 Maternity Protection Convention, 1919
Conventions: C029 Forced Labour Convention, 1930
Conventions: C098 Right to Organise and Collective Bargaining Convention, 1949
Conventions: C103 Maternity Protection Revised) Convention, 1952
Conventions: C105 Abolition of Forced Labour Convention, 1957
Conventions: C111 Discrimination (Employment and Occupation) Convention, 1958
Conventions: C135 Workers' Representatives Convention, 1971
Conventions: C156 Workers with Family Responsibilities Convention, 1981
Conventions: C159 Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983
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:R165 Workers with Family Responsibilities Recommendation, 1981
Recommendations:R168 Vocational Rehabilitation and Employment (Disabled Persons) Recommendation, 1983
Survey reference:251995G05 General Survey 1995, para. 139
Survey reference:251994G08 General Survey 1994, para. 205-210
Survey reference:251994G04 General Survey 1994, para. 100-103
Not in ILOLEX: General Survey 1988, para. 70-71, 115, 226
Not in ILOLEX: General Survey 1986, para. 169
Not in ILOLEX: General Survey 1974