Sources of regulation
The main source of labour legislation in the Republic of Belarus is
the Labour Code (Arts. 35 to 52), in force since the 1st January
2000 and as lastly amended in June 2006. Article 7 of the Labour Code (LC)
enumerates sources of labour law, such as the Constitution of Belarus, the
Labour Code and other legal acts, collective agreements, and local normative
acts concluded or issued in conformity with the legislation.
The Resolution of the Plenum of the Supreme
Court of Belarus “On some issues of application by the courts of labour legislation”
dated 21 March 2001, clarifies application of the Labour Code to termination
of employment contract.
Another important enactment is Presidential
Decree No. 29 dated 26 July 1999 “On additional measures on improving employment
relations, strengthening labour and executive discipline” which entitles
all employers to conclude fixed-term contracts with all categories of workers
for a period of one to five years.
Scope of legislation
All employees are covered by the provisions
of the Labour Code (Art. 5). However, a vast majority of employment contracts
are regulated by the Presidential Decree No. 29 dated 1999 “On additional
measures on improving employment relations, strengthening labour and executive
discipline”, which makes most safeguards meaningless, as the contracts are
concluded for a fixed period of time (1-5 years), and on expiration of this
period, there is no obligation to renew the employment contract. Therefore,
since 2001, most employment contracts in Belarus are
concluded for a fixed, rather than an indefinite term.
Contracts of employment
The
individual employment contract is defined by the Labour Code as an agreement between the employer and employee according to which the employee is
obliged to carry out specified work according to a certain profession or
several professions, specialization or positions following the list of
staff members, and to follow set rules of work. The employer is obliged
to provide the employee with the work specified by the contract, to provide
conditions of work according to labour legislation, local normative acts
and contracts, and to pay wages on time.
According to Article 17 of the Labour Code,
the employment contracts can be concluded for:
- an
indefinite term;
- a
definite term not exceeding five years (employment contract for definite
period);
- a
given period for carrying out specific work;
- replacing
a temporary absent employee for whom the job is retained in accordance
with the law;
- the period
of seasonal work.
Termination of employment
Termination of employment relations is possible,
according to the Labour Code (Art. 35), on the following basic grounds:
- Agreement
between the parties;
- Termination
of employment contract according to the initiative of employer or employee;
and
- Termination
of employment relations irrespective of parties' will.
Agreement between the parties. An employment
contract, both for a definite and indefinite period, can be terminated upon
agreement between employer and employee (Article 37 of the Employment Code).
Expiration of the period for which employment
contract was concluded is another ground for terminating an employment
contract, except in the cases where employment contract continues de
facto and neither party demands that employment relations be terminated
(paragraph 2, Article 35 of the Labour Code). This ground for termination
of employment contract can be raised in relation to all contracts concluded
for definite period, according to the Resolution of the Plenum of the Supreme
Court of Belarus “On some issues of application by the courts of labour
legislation”, dated 21 March 2001.
The transfer of employee to another employeror
taking by employee of electiveoffice leads to termination of
existing employment contract and is only possible with prior consent of
employee which should be given in writing. Nomination to elective office
may also lead to termination of employment relations. Such nomination should
be proved by documentary evidence.
Refusal of employee to be transferred to another locality with
employer. The Labour Code stipulates as a ground to terminate
an employment contract, for instance, the refusal from continuation of
work because of significant changes of work conditions, as well as refusal
to continue work because of change of the ownership, or because of reorganization
(merger, annexation, changing of legal form).
Termination of employment contract with prior probation period. An
employer can dismiss an employee according to this ground, only in the case
of unsatisfactory probation period. The employer must justify why the employee
did not meet expectations. If the justification given is unsatisfactory,
such termination may be challenged in court.
Termination of employment relations irrespective
of parties' will constitutes another group of grounds for termination
of employment contract. The reason for such termination is usually an initiative
of the third parties or emergence of objective obstacles which prevent
continuation of employment relations.
Military conscription of employee. Military service
is obligatory for all healthy male citizens of Republic of Belarus.
Other grounds, not depending on the will of
the parties, include reinstatement of employee, who previously performed
the work (for example where the court declared unlawful dismissal, or if
the former employee finished his or her term at elective office).
Violation of mandatory rules for conclusion
of employment contract (paragraph 3, Article 44 of the Labour Code).
There are several mandatory rules regarding procedure for conclusion of
the employment contract whose inobservance leads to the cancellation of
employment relationship. These include: prohibition to use labour of aged
under 18 years to be subjected to hard work, work in hazardous conditions,
such as underground and mining works, prohibition in hiring a person who,
according to court sentence, is prohibited from taking certain positions
or pursuing certain activities etc.
Entering into force of court sentence means
that the employee concerned cannot continue his or her work (paragraph 5
of Article 44 of the Labour Code).Death of employee or declaring him or
her by the court as deceased or missing also leads to termination of employment
relations.
Dismissal
Basically, labour legislation provides a number
of limitations for termination of employment contract on the initiative of
employer. These limitations can be divided into two groups.
The first group contains prohibition for termination
of employment contract within a certain period of time or applicable to a
particular category of employees. Limitations of this group include, inter
alia, the norms, which prohibit dismissal during periods of temporary
inability to work, during leave, pregnancy, etc.
The second limitation includes those prescribing
to follow certain procedures and meet certain requirements for termination
of employment relations. This group includes obligation of employer to notify
competent body (trade union, commission on minors), requirement to take measures
to transfer employee to another work and some other requirements.
The exhaustive list of grounds for termination
of employment contract according to initiative of employer can be found in
Article 42 of the Labour Code. The Labour Code emphasizes that no other grounds
for dismissal of an employee can be raised by an employer.
Liquidation of organisation, reduction of
number of employees or staff positions are all mentioned in paragraph
1, of Article 42 of the Labour Code. Liquidation of organisation leads
to discontinuation of its activities without transfer of its rights and
obligations as a matter of succession, unless otherwise provided by legislation
(Article 57 of the Civil Code).
Reduction of number of employees or staffpositions (paragraph
1 of Article 42 of the Labour Code). Advisability of such reduction is determined
independently by employer. However, it is important whether such reduction
has really taken place. Employee cannot be dismissed because of reduction
while he or she is temporarily incapacitated, on maternity leave or social
leave.
Inadequacy of employee to his or her position or performed work
because of state of health (paragraph 2, Article 42 of the Labour
Code). An employer can dismiss an employee on this
ground only where there is a specific conclusion by a special commission
stating that the employee cannot continue to work due to ill health.
Inadequacy of employee to his or her position or work because
of insufficient qualification, which prevents carrying out his or her work
(paragraph 3, Article 42 of the Labour Code). Such
inadequacy can be evidenced by repeated non-fulfilment of norms, production
of defective articles, inability to perform working obligations.
Non-fulfilment by employee of his or her
work duties according to employment contract or rules of work without
good reason, if the employee has previously been a subject of disciplinary
sanction, (paragraph 4 of Article 42 of the Labour Code) is another ground
of termination of employment contract.
Absence from work for three hours or more at workplace without
good reason. Absence from work is understood
as absence from the territory of organization, where the employee is
supposed to perform his or her work in accordance with employment contract.
Non-appearance at work for more than four successive weeks because
of temporary incapacity to work, unless the legislation provided for a
longer period of reservation of working place (e.g. for seasonal workers).
Appearance at work under the influence of alcohol or drugs,
as well as consumption of alcoholic beverages in working time at the work
place.
Theft of employer's property, which is
established by a court sentence, or administrative
sanction by a competent body. This ground for termination of employment contract
is a disciplinary sanction and therefore should be applied in the order provided
by paragraph 8 of Article 42 of the Labour Code.
Except for the grounds mentioned above, Article
47 of the Labour Code establishes a number of other grounds for termination
of employment contract. These include the following:
1) single gross
violation of labour duties by the chief executive of organization, chief
accountant or their deputies;
2) act of misconduct by employee working
with money or valuables, leading to loss of confidence towards employee;
3) commitment of
immoral action which precludes further work by employee who performs pedagogical
activity;
4) direction of
employee according to court sentence to medial establishment; and
5) non-signing of
obligations provided by anti-corruption legislation, or violation of those
obligations.
Notice and prior procedural safeguards
The legislation does not provide for the obligation
of the employer or employee to give a notice on the intention to terminate
the employment contract on the expiration of its term. However, this rule
can be included in a collective agreement, accord of the employment contract
itself. In these cases, the notice will be obligatory.
Employment contract concluded for a definite
period of time implies that the parties have agreed on the limitation of
the term of contract for a particular duration. Employment contract concluded
for the definite period of time ‘worsens’ the position of the employee because
the employer has the right to dismiss the employee on the ground of expiration
of the contract without any additional procedures, such as prior notice or
justification.
As regards contracts concluded for both limited
or indefinite duration, the employee has to notify the employer at least
one month in advance about his/her desire to termination employment relationship
(Art. 40 LC).
In case of redundancy, the employer must inform
the employee two months in advance of the expected dismissal, as well as
notify the public employment service (Art.43 LC). Upon the employee’s consent,
the employer can replace the period of notice by the two-month salary compensation
in lieu of notice.
All the dismissals under Art. 42 of the Labour Code, exception
made for Para. 7 (appearance at work under the influence of alcohol or drugs),
are possible, provided that the trade union concerned is informed two weeks
before the expected dismissal (Art. 46 LC).
Procedural safeguards related to termination
of employment depend upon whether or not the termination was a disciplinary
sanction. There is a special procedure for dismissal as a disciplinary sanction,
which can be a result of non-fulfilment by employee of his or her working
duties, absence from work for three hours or more without good reason, appearance
at work under the influence of alcohol or drugs and other events stipulated
by the Labour Code. Prior to application of disciplinary sanction, an employer
should request written explanation from employee. Refusal of employee to
provide explanation does not prevent application of sanction but should be
formalized by means of a special written act mentioning witnesses. Each disciplinary
offence can only be followed by one disciplinary sanction. The employer’s
order on application of disciplinary sanction with justification must be
presented to the employee against his or her signature within a period of
five days. If employee was not introduced to the order on disciplinary sanction,
he or she is considered as not having disciplinary liability.
Chapter 23 of the Labour Code deals with legal
status of employees, whose employment contracts are concluded for a period
of less than two months, and for those who temporarily replace an absent
employee for a period of up to four months. Provision regarding short-term
character of labour should be included in the employment contract. A trial
period cannot be introduced for short-term employees, and employees have
additional right to terminate employment contract, providing a written notice
to the employer three days in advance.
Severance pay
According to Article 48 of the Labour Code,
the employee is entitled to severance pay, the amount of which depends upon
the motive for termination of employment contract.
Compensation is granted to the amount of two
weeks’ average wage in the following cases:
- Employees
who are enlisted for military service;
- Employees
who refuse to change location with the employer or are subjected to another
change in the basic conditions of employment;
- Terminations
due to another employee being reinstated; and
- Employment
contract terminated because of breach of legislation by employer or a collective
agreement.
Employees are compensated to the amount of three
months’ average wage in the following cases:
- Liquidation
of the employer’s organization;
- Layoffs
and redundancies.
Employees are compensated to the amount of four
months’ average wage due to:
- Evacuation,
resettlement from the areas contaminated by Chernobyl nuclear contamination.
Dismissal due to reduction of number of employees
or staff positions is connected with a number of additional guarantees, such
as increased amount of dismissal pay (Article 48 of the Labour Code), reservation
of continuous period of service for the purpose of social security law within
three months since the date of dismissal (Article 16 of the Law “On occupation
in Republic of Belarus”), prohibition of withholding sums paid for unused
labour, leave entitlement amongst others.
The amount of severance pay can be increased taking into account the
length of service or other grounds provided by the collective agreement.
Avenues for redress
Termination of the employment contract can be
redressed by using the procedure for settling individual labour disputes.
An individual labour dispute is a dispute (disagreement) between employee
and employer with regard to application of legislation or other normative
acts, collective agreement and other agreements regulating labour relations.
Such disputes should be considered by Commissions on Labour Disputes (CLD)
and by the courts.
CLD is a mandatory primary body for consideration
of labour disputes, with exception of the cases prescribed by the legislation.
CLDs are created in organizations based on equal representation of trade
unions and employers for a period of one year. The employee has the right
to apply to CLD within three months after he or she became aware, or was
supposed to become aware of violation of his or her right. If three months
have expired, and the employee did not apply to CLD, although there were
valid reasons for not doing so, CLD may consider the dispute, if the reasons
were, in the opinion of CLD, acceptable. Even if CLD refuses to consider
the dispute, the employee may still address the court for consideration of
the dispute. CLD is obliged to consider the dispute within ten days of receipt
of the application.
There are no special labour courts in Belarus.
Disputes on labour law issues are considered by the courts of general jurisdiction.
The courts consider labour disputes in accordance with the rules established
by the Code of Civil Procedure with some minor deviations, mentioned in the
Labour Code.
Further information
- The
National Legal Portal of the Republic of Belarus
- Belarus
Legislation Lexadin
- Kryvoi Yaraslau. “Discrimination and Security
of Employment in a Post-Soviet Context” International Journal
of Comparative Labour Law and Industrial Relations – Kluwer Law International
– The Hague – Volume 22. Issue 1, 2006, pp. 5-17.
- Kryvoi Yaraslau. “Belarus”
in: The International Encyclopaedia of Labour Law and Industrial Relations,
110 pp., Kluwer Law International, The Hague, 2005, 112 pp.
- Blanpain Roger & Kryvoi Yaraslau. “Legislation. Belarus” in: The
International Encyclopaedia of Labour Law and Industrial Relations,
Kluwer Law International, The Hague, 2005, pp 142.
- Semenkov, V.I., Artyomova, V.N., and Vasilevich,
G.A. et al., “Trudovoe pravo: uchebnoe posobie”. Minsk, 2002. (in Russian)
- Krivoy Victor, Leonid Ostrovsky, Elena Komockaya. Commentary to the Labour Code ofBelarus. Book
2.Minsk, 2000, p 208. (in Russian)
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