References
Workers' categories excluded:
FTC regulated: Yes
Art. 17 al.1 of the EA. A contract of employment for a specified piece of work, without reference to time, or for a specified period of time shall, unless otherwise lawfully terminated, terminate when the work specified in the contract is completed or the period of time for which the contract was made expires.
In addition, the art. 2 al 1 (1) provides that a fixed term contract may be for a specified period or may be determine by specified event. A fixed term contract normally terminates automatically on the expiry of the period.
Valid reasons for FTC use: no limitation
No statutory limitation.
Maximum number of successive FTCs: no limitation
No maximum number specified in the legislation. However, under the Code of Good Practice, an employer who fails to renew a fixed-term contract, when a reasonable expectation that it will be renewed is held by the employee, is deemed to have dismissed the employee.
Maximum cumulative duration of successive FTCs: no limitation
No statutory limitation.
Maximum probationary (trial) period (in months): 12 month(s)
Art. 20 EA : the probatory period can not exceed three months in the case of unskilled employees, and twelve months in the case of skilled employees.
Excluded from protection against dismissal: Yes
See the art. 20 al.2 EA. In the absence of specific provisions expressly stipulated in the contract, the probationary period may be terminated at any time without notice by the will of one of the parties.
Obligation to provide reasons to the employee: Yes
Valid grounds (justified dismissal):
Prohibited grounds: marital status, maternity leave, filing a complaint against the employer, race, colour, sex, political opinion, social origin, age, trade union membership and activities, disability, HIV status, fulfilling state duties, ethnic origin
See the art. 23 of the EA. General prohibition of discrimination on the grounds of marital status; filing a complaint against the employer; race; colour; sex; political opinion; social origin; trade union membership and activities; fulfilling state duties; ethnic origin, age.
Art. 116 EA. Prohibition of serving notice of termination of contract of employment during maternity leave.
Art. 9 al.1 of the Code of Good Practice on HIV/AIDS provides that employees with HIV/AIDS may not be wrongfully dismissed solely on the basis of their HIV/AIDS status.
Art. 8 of the Code of Good Practice on Discrimination. Dismissals based on employees with disabilities is prohibited.
Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave
Art. 116 LC. Prohibition of dismissal during maternity leave.
The art. 11 al 9 of the Code of Good Practice on Termination of Employment provides special protection for dismissal from workers representatives.
Notification to the worker to be dismissed: written
See the art. 18 al.5 of the EA : Notice of intention to terminate the contract shall be in writing. However, it may also be given orally by either party if he is illiterate.
Notice period:
Sec. 18 EA. Termination of contracts of employment for unspecified periods of time
"(...) (2) Notwithstanding anything to the contrary contained in the contract of employment, the minimum length of any notice referred to in subsection (1)(b) shall-
(a) where the wages are payable in respect of any period exceeding a day but less than a week, be one day; or
(b) where the wages are payable in respect of any period not less than a week, be equal in length to the period:
Provided that-
(i) where an employee whose wages are payable in respect of any period not less than a week but less than two weeks have been in continuous employment for two or more but less than five years, the minimum length of notice shall be two weeks;
(ii) where an employee whose wages are payable in respect of any period not less than a week but less than a month has been in continuous employment for five or more but less than 10 years, the minimum length of notice shall be one month; or
(iii) where an employee whose wages are payable in respect of any period exceeding a day has been in continuous employment for 10 or more years, the minimum length of notice shall be six weeks.
(3) Notwithstanding subsection (2), where the contract of employment provides for a minimum length of any notice such as is referred to in subsection (1)(b) which is longer than the appropriate minimum length prescribed by subsection (2), the minimum length of any such notice shall be that for which the contract of employment provides.
(4) Nothing in this section shall prohibit either party to a contract of employment from waiving his entitlement to notice in any particular case. (...)"
Pay in lieu of notice: Yes
Art 19 (a) of the EA. either party to a contract of employment may terminate the contract without giving such notice by paying to the other party a sum equal to the amount of basic pay which would otherwise have accrued to the employee during the minimum lawful period of such notice.
Notification to the public administration: Yes
See art.25 - 2 of the EA: when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner.
A "Commissioner" means in the EA the Commissioner of Labour referred to in section 3 or any person acting in or lawfully performing the functions of his office.
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Definition of collective dismissal (number of employees concerned) No definition of collective dismissal.
No definition of the collective dismissal on the EA. However, the art. 13 al 1 of the Code of Good Practice on Termination of employment provides that retrenchement means a dismissal arising from a redundancy caused by the re-organisation of the business or the discontinuance or reduction of the business for economical, structural, technological or similar reasons.
Notification to the public administration No
No statutory provision on the EA. However, the Art. 13 al 5 of the Code of Good Practices on Termination of Employment provides that the employer should consult the employees to be affected by the collective dismissal and their trade union.
Notification to trade union (workers' representatives) Yes
See the art. 25-2 of the EA : when an employer forms an intention to terminate contracts of employment for the purpose of reducing the size of his work force, he shall forthwith give written notice of that intention to the Commissioner.
Notification to workers' representatives: No
Approval by trade union (workers' representatives) No
Approval by workers' representatives No
Priority rules for collective dismissals (social considerations, age, job tenure) Yes
See art. 25-1 of the EA: Where an employer terminates contracts of employment for the purpose of reducing the size of his work force, he shall do so in respect of each category of employee, wherever reasonably practicable, in accordance with the principle commonly known as first-in-last-out:Provided that in so doing the employer shall take into account (i) the need for the efficient operation of the undertaking in question; and (ii) the ability, experience, skill and occupational qualifications of each employee concerned.
In addition, the art 13 al. 5(2) of the Code of Good practices on Termination of Employment provides that the criteria for selecting the employees for dismissal such as last-in-first-out , subject to special skills and affirmative action should constitute a priority rules for collective dismissals.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) Yes
See art. 25 al.3 of the EA
Where contracts of employment have been terminated for the purpose of reducing the size of a work force, the employer shall, if he again seeks employees in the occupations to which those contracts related, give priority of engagement, to such extent as is reasonably practicable, to those persons whose contracts of employment were so terminated: Provided that this subsection shall not apply where the employer seeks such employees more than six months immediately after the contracts in question were terminated.
In addition, the art. 13 al. 9 of the Code of Good Practices on Termination of Employment provides that retrenched employees should be given preference if the employer again hires employees with comparables qualifications, subject to -the employees having expressed a desire to be re-hired and the re-hiring taking place within six months of the retrenchment.
Priority rules for re-employment No
No statutory provision in the EA. However, the art. 13 al 5 of the Code of Good Practices on Termination of the employment provides that the employer should consult the employees to be affected and their trade union, with a genuine attempt to achieve consensus on the alternatives to dismissals such as transfer to other jobs.
mine workers: Yes
See art. 27 AL.5 EA. A final determination of the amount of any severance benefit made by the nearest labour officer or the Commissioner.
managerial / executive positions: No
police: No
Existing arbitration: No
See art. 27 AL.3 of the EA. Where a severance benefit is payable in accordance with this section, either the employer or employee may, where there is a dispute as to the amount payable, apply, within such period and in such form and manner as may be prescribed, to the nearest labour officer to determine the amount of the benefit and, where such application is made, the nearest labour officer shall forthwith proceed to determine the amount of the benefit.