R166 Termination of Employment
Recommendation, 1982
Recommendation Concerning Termination of Employment at the
Initiative of the Employer
Recommendation:R166
Place: Geneva
Session of the Conference:68
Date of adoption=22:06:1982
The General Conference of the International Labour
Organisation,
Having been convened at Geneva by the Governing Body of the
International Labour Office, and having met in its Sixty-eighth Session on 2
June 1982, and
Having decided upon the adoption of certain proposals with
regard to termination of employment at the initiative of the employer, which is
the fifth item on the agenda of the session, and
Having determined that these proposals shall take the form
of a Recommendation supplementing the Termination of Employment Convention,
1982; adopts this twenty-second day of June of the year one
thousand nine hundred and eighty-two, the following Recommendation, which may be
cited as the Termination of Employment Recommendation, 1982:
The provisions of this Recommendation may be applied by
national laws or regulations, collective agreements, works rules, arbitration
awards or court decisions or in such other manner consistent with national
practice as may be appropriate under national conditions.
This Recommendation applies to all branches of economic
activity and to all employed persons.
A Member may exclude the following categories of
employed persons from all or some of the provisions of this Recommendation:
workers engaged under a contract of employment for a
specified period of time or a specified task;
workers serving a period of probation or a qualifying
period of employment, determined in advance and of reasonable duration;
workers engaged on a casual basis for a short period.
In so far as necessary, measures may be taken by the
competent authority or through the appropriate machinery in a country, after
consultation with the organisations of employers and workers concerned, where
such exist, to exclude from the application of this Recommendation or certain
provisions thereof categories of employed persons whose terms and conditions of
employment are governed by special arrangements, which as a whole provide
protection that is at least equivalent to the protection afforded under the
Recommendation.
In so far as necessary, measures may be taken by the
competent authority or through the appropriate machinery in a country, after
consultation with the organisations of employers and workers concerned, where
such exist, to exclude from the application of this Recommendation or certain
provisions thereof other limited categories of employed persons in respect of
which special problems of a substantial nature arise in the light of the
particular conditions of employment of the workers concerned or the size or
nature of the undertaking that employs them.
Adequate safeguards should be provided against recourse
to contracts of employment for a specified period of time the aim of which is to
avoid the protection resulting from the Termination of Employment Convention,
1982, and this Recommendation.
To this end, for example, provision may be made for one
or more of the following:
limiting recourse to contracts for a specified period of
time to cases in which, owing either to the nature of the work to be effected or
to the circumstances under which it is to be effected or to the interests of the
worker, the employment relationship cannot be of indeterminate duration;
deeming contracts for a specified period of time, other
than in the cases referred to in clause (a) of this subparagraph, to be
contracts of employment of indeterminate duration;
deeming contracts for a specified period of time, when
renewed on one or more occasions, other than in the cases mentioned in clause
(a) of this subparagraph, to be contracts of employment of indeterminate
duration.
For the purpose of this Recommendation the terms
termination and termination of employment mean termination of employment at the
initiative of the employer.
In addition to the grounds referred to in Article 5 of
the Termination of Employment Convention, 1982, the following should not
constitute valid reasons for termination:
age, subject to national law and practice regarding
retirement;
absence from work due to compulsory military service or
other civic obligations, in accordance with national law and practice.
Temporary absence from work because of illness or injury
should not constitute a valid reason for termination.
The definition of what constitutes temporary absence
from work, the extent to which medical certification should be required and
possible limitations to the application of subparagraph (1) of this Paragraph
should be determined in accordance with the methods of implementation referred
to in Paragraph 1 of this Recommendation.
The employment of a worker should not be terminated for
misconduct of a kind that under national law or practice would justify
termination only if repeated on one or more occasions, unless the employer has
given the worker appropriate written warning.
The employment of a worker should not be terminated for
unsatisfactory performance, unless the employer has given the worker appropriate
instructions and written warning and the worker continues to perform his duties
unsatisfactorily after a reasonable period of time for improvement has elapsed.
A worker should be entitled to be assisted by another
person when defending himself, in accordance with Article 7 of the Termination
of Employment Convention, 1982, against allegations regarding his conduct or
performance liable to result in the termination of his employment; this right
may be specified by the methods of implementation referred to in Paragraph 1 of
this Recommendation.
The employer should be deemed to have waived his right
to terminate the employment of a worker for misconduct if he has failed to do so
within a reasonable period of time after he has knowledge of the misconduct.
The employer may consult workers' representatives before
a final decision is taken on individual cases of termination of employment.
The employer should notify a worker in writing of a
decision to terminate his employment.
A worker who has been notified of termination of
employment or whose employment has been terminated should be entitled to
receive, on request, a written statement from his employer of the reason or
reasons for the termination.
Subparagraph (1) of this Paragraph need not be applied
in the case of collective termination for the reasons referred to in Articles 13
and 14 of the Termination of Employment Convention, 1982, if the procedure
provided for therein is followed.
Provision may be made for recourse to a procedure of
conciliation before or during appeal proceedings against termination of
employment.
Efforts should be made by public authorities, workers'
representatives and organisations of workers to ensure that workers are fully
informed of the possibilities of appeal at their disposal.
During the period of notice referred to in Article 11 of
the Termination of Employment Convention, 1982, the worker should, for the
purpose of seeking other employment, be entitled to a reasonable amount of time
off without loss of pay, taken at times that are convenient to both parties.
A worker whose employment has been terminated should be
entitled to receive, on request, a certificate from the employer specifying only
the dates of his engagement and termination of his employment and the type or
types of work on which he was employed; nevertheless, and at the request of the
worker, an evaluation of his conduct and performance may be given in this
certificate or in a separate certificate.
A worker whose employment has been terminated should be
entitled, in accordance with national law and practice, to-
a severance allowance or other separation benefits, the
amount of which should be based, inter alia, on length of service and the level
of wages, and paid directly by the employer or by a fund constituted by
employers' contributions; or
benefits from unemployment insurance or assistance or
other forms of social security, such as old-age or invalidity benefits, under
the normal conditions to which such benefits are subject; or
a combination of such allowance and benefits.
A worker who does not fulfil the qualifying conditions
for unemployment insurance or assistance under a scheme of general scope need
not be paid any allowance or benefit referred to in subparagraph (1) (a) of this
Paragraph solely because he is not receiving an unemployment benefit under
subparagraph (1) (b).
Provision may be made by the methods of implementation
referred to in Paragraph 1 of this Recommendation for loss of entitlement to the
allowance or benefits referred to in subparagraph (1) (a) of this Paragraph in
the event of termination for serious misconduct.
III. Supplementary Provisions concerning Terminations of
Employment for Economic, Technological, Structural or Similar Reasons
All parties concerned should seek to avert or minimise
as far as possible termination of employment for reasons of an economic,
technological, structural or similar nature, without prejudice to the efficient
operation of the undertaking, establishment or service, and to mitigate the
adverse effects of any termination of employment for these reasons on the worker
or workers concerned.
Where appropriate, the competent authority should assist
the parties in seeking solutions to the problems raised by the terminations
contemplated.
When the employer contemplates the introduction of major
changes in production, programme, organisation, structure or technology that are
likely to entail terminations, the employer should consult the workers'
representatives concerned as early as possible on, inter alia, the introduction
of such changes, the effects they are likely to have and the measures for
averting or mitigating the adverse effects of such changes.
To enable the workers' representatives concerned to
participate effectively in the consultations referred to in subparagraph (1) of
this Paragraph, the employer should supply them in good time with all relevant
information on the major changes contemplated and the effects they are likely to
have.
For the purposes of this Paragraph the term the workers'
representatives concerned means the workers' representatives recognised as such
by national law or practice, in conformity with the Workers' Representatives
Convention, 1971.
The measures which should be considered with a view to
averting or minimising terminations of employment for reasons of an economic,
technological, structural or similar nature might include, inter alia,
restriction of hiring, spreading the workforce reduction over a certain period
of time to permit natural reduction of the workforce, internal transfers,
training and retraining, voluntary early retirement with appropriate income
protection, restriction of overtime and reduction of normal hours of work.
Where it is considered that a temporary reduction of
normal hours of work would be likely to avert or minimise terminations of
employment due to temporary economic difficulties, consideration should be given
to partial compensation for loss of wages for the normal hours not worked,
financed by methods appropriate under national law and practice.
The selection by the employer of workers whose
employment is to be terminated for reasons of an economic, technological,
structural or similar nature should be made according to criteria, established
wherever possible in advance, which give due weight both to the interests of the
undertaking, establishment or service and to the interests of the workers.
These criteria, their order of priority and their
relative weight, should be determined by the methods of implementation referred
to in Paragraph 1 of this Recommendation.
Workers whose employment has been terminated for reasons
of an economic, technological, structural or similar nature, should be given a
certain priority of rehiring if the employer again hires workers with comparable
qualifications, subject to their having, within a given period from the time of
their leaving, expressed a desire to be rehired.
Such priority of rehiring may be limited to a specified
period of time.
The criteria for the priority of rehiring, the question
of retention of rights-particularly seniority rights-in the event of rehiring,
as well as the terms governing the wages of rehired workers, should be
determined according to the methods of implementation referred to in Paragraph 1
of this Recommendation.
In the event of termination of employment for reasons of
an economic, technological, structural or similar nature, the placement of the
workers affected in suitable alternative employment as soon as possible, with
training or retraining where appropriate, should be promoted by measures
suitable to national circumstances, to be taken by the competent authority,
where possible with the collaboration of the employer and the workers'
representatives concerned.
Where possible, the employer should assist the workers
affected in the search for suitable alternative employment, for example through
direct contacts with other employers.
In assisting the workers affected in obtaining suitable
alternative employment or training or retraining, regard may be had to the Human
Resources Development Convention and Recommendation, 1975.
With a view to mitigating the adverse effects of
termination of employment for reasons of an economic, technological, structural
or similar nature, consideration should be given to providing income protection
during any course of training or retraining and partial or total reimbursement
of expenses connected with training or retraining and with finding and taking up
employment which requires a change of residence.
The competent authority should consider providing
financial resources to support in full or in part the measures referred to in
subparagraph (1) of this Paragraph, in accordance with national law and
practice.
