The objectives of the Digest
Termination of Employment Legislation Digest has been formulated in response to requests from governments, employers, trade unions, labour practitioners and academics for comparative information on legislation governing termination of employment. In an environment of heightened global competition, and financial crises in some countries resulting in mass layoffs, this subject is now more topical than ever. In reviewing the legislation of more than 70 jurisdictions, the Digest highlights commonalities between approaches taken to individual and collective dismissals, as well as differences in relation to key points.
The central objectives of this Digest are twofold. First, it is intended to provide an international overview of legislation on termination of employment, illustrating the different approaches taken to the subject in various national systems. The Digest has a wide scope, covering jurisdictions from all geographic regions and levels of development. The countries have been selected to provide a diversity of systems, in geographic, developmental and legal terms. The Digest aims to provide an introduction to the legislation governing termination of employment in a form which is accessible to the lay reader as well as the lawyer, and therefore tries to avoid technical discussions wherever possible. The Digest particularly targets the constituents of the ILO: government officials, employers’ representatives and workers’ representatives.
Second, it provides the reader with an introductory summary of the legislation on termination of employment of each of the countries covered by the Digest. Due to the number of countries covered and restrictions of space, it is not possible to provide an in-depth picture of the law relating to the termination of employment for each country. There are, of course, for a great many countries, extensive texts devoted to the subject of termination of employment. The purpose of the Digest is thus to introduce the reader to the approach followed in each country to termination issues and present an overview of the legislation governing these issues. It is meant to be read in the context of a broader range of measures to prevent or respond to worker displacement.[1]
Scope of the Digest
The Digest provides a profile of the legislation on termination of employment for each country and does not, generally, cover case law or collective agreements on the subject. The reasons for this approach are practical: constraints of space and the difficulty of gaining an accurate picture of the case law on termination from the information sources available, particularly for developing countries. However, where a brief reference to case law or collective agreements is necessary to prevent a misleading picture of the law, and reliable information is available, this has been added.
The Digest deals only with employees in the private sector. In the vast majority of both common law and civil law legal systems, the legal position of public employees with regard to security of employment and termination has been regulated quite differently than that of private sector employees. While there seems to be a modern trend to narrow the distinction between public and private sector employees in many countries, the administrative law aspects of the dismissal of public servants are beyond the scope of this Digest, and these employees are therefore not included.
The term “termination” refers to the ending of employment both at the initiative of the employer and for other reasons, such as resignations or frustration of the employment contract. Generally, terminations at the initiative of the employer are referred to as “dismissals”, except where the national legislation uses a different term, or the context otherwise requires.
The format of the summaries of national legislation
The national legislation profiles are divided into eight sections: (1) sources of regulation;
(2) scope of legislation; (3) contracts of employment; (4) termination of employment;
(5) dismissal; (6) notice and prior procedural safeguards; (7) severance pay; and (8) avenues for redress.
“Sources of regulation” outlines the legislative sources of regulation on
termination of employment, including, if applicable, important regulations
promulgated under statutes.
“Scope of legislation” outlines the ambit of the applicable legislation, both in terms of the persons covered or excluded and industrial, sectoral or occupational exclusions.
“Contracts of employment” is included because of the close relationship between employment security legislation protecting against arbitrary dismissal and legislation placing controls on the termination of, and use of, so-called atypical or contingent forms of employment, such as part-time work, fixed-term contracts and temporary contracts. Legislative provisions specifically governing these forms of employment are set out in this section.
“Termination of employment” deals with termination of employment which is not at the employer’s initiative.
“Dismissal” includes dismissals specified by statute as invalid, any reasons specified as justified, and any other legislative provisions governing the substantive standards to be applied to dismissals. It also includes information available on specific provisions for collective dismissals.
“Notice and procedural safeguards” addresses any procedural safeguards which must be complied with before termination (such as requirements for hearings or consultation) and any statutory notice periods which must be complied with.
“Severance pay” deals with any statutory severance pay, not being damages or compensation for unfair or unjustified dismissal, which must be provided on termination.
“Avenues for redress” covers the procedure for challenging dismissals and the remedies available, once a dismissal has been found by the adjudicating body to be unfair or unjustified.
For some countries, the situation in practice with regard to termination of employment may differ somewhat from the legislative provisions. A full picture of termination of employment in a particular country would of course need to include information on the incidence and types of terminations, the workings and results of dispute resolution procedures, the application of collective agreements and the decisions of relevant courts.
The legislation governing termination of employment, like all labour legislation, reflects societal values and labour market conditions in a given period. As these evolve, this legislation will change as well. By tracking legislative developments, the Digest illustrates the diversity of approaches taken to the important topic of termination of employment and provides the basis for further investigation.
[1] These include unilateral or collectively negotiated reduction
of working time, measures to avoid layoffs, retraining, job creation schemes
and the like. See, for example, C. Evans-Klock et al.: “Worker retrenchment:
Preventive and remedial measures”, in International Labour Review (Geneva,
ILO), 1999, Vol. 138, No. 1, pp. 47–66.
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