References
Labour Act [LA], Act No. 651 of 2003<br/>(in force since 31 March 2004)
Date:
20 Aug 1970;
view website
»
(view in NATLEX
»)
Labour Regulations, 2007 (L.I. 1833)<br/>(in force since 31 July 2007)
Date:
21 Aug 1970;
(view in NATLEX
»)
Whistleblower Act [WA], Act No. 720 of 2006<br/>(in force since 16th October 2006)<br/>
Date:
21 Aug 1970;
Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: state security corps, prison staff, police, army
*Art. 1 LA: army, police, security and intelligence agencies, prison personnel are excluded from the scope of application of the Labour Act.
*Art. 66 LA: the provisions on termination of employment do not apply to workers engaged for specified period or specified work; workers on a probationary period; workers engaged on casual basis.
FTC regulated: No
Valid reasons for FTC use: no limitation
The Labour Act does not refer to any specific legal regime for the use of fixed-term contracts.
Only temporary and casual employment are regulated by special provisions (art. 73 to 78 LA)
(Note: Art. 78: "temporary worker" means a worker who is employed for a continuous period of not less than one month and is not a permanent worker or employed for a work that is seasonal in character; "casual worker" means a worker engaged on a work which is seasonal or intermittent and not for a continuous period of more than 6 months and whose remuneration is calculated on a daily basis".)
Maximum number of successive FTCs: no limitation
No statutory limitation found in the legislation reviewed.
Maximum cumulative duration of successive FTCs: no limitation
No statutory limitation found in the legislation reviewed.
Notes / Remarks
The Labour Act does not refer to any specific legal regime for the use of fixed-term contract.
Only temporary and casual workers are regulated by special provisions (art. 73 to 78 LA)
Maximum probationary (trial) period (in months):
no limitationNo statutory maximum duration. The Labour Act refers to a "reasonable duration". Probationary period is generally provided in collective agreement
*Art. 66 LA refers to workers serving a probation or qualifying period of employment of reasonable duration determined in advance.
*Art. 98 d) LA : A collective agreement may include provisions on the period of probation and conditions on probation.
Obligation to provide reasons to the employee: No
No legal provision requiring justification to the employee.
See however art. 63 (4) a) LA:
"A termination may be unfair if the employer fails to prove that the reason for the termination is fair".
Valid grounds (justified dismissal):
Prohibited grounds: pregnancy, maternity leave, filing a complaint against the employer, temporary work injury or illness, race, colour, sex, religion, political opinion, social origin, trade union membership and activities, disability, financial status, ethnic origin
Art. 63 LA.
Workers enjoying special protection: pregnant women and/or women on maternity leave
Art 57(8): An employer shall not dismiss a woman worker because of her absence from work on maternity leave.
Art. 12 WA: “A whistleblower shall not be subjected to victimisation by the employer of the whistleblower or by a fellow employee or by another person because a disclosure has been made.” According to Art. 12(2), a whistleblower is subjected to victimisaton if they are dismissed.
Notification to the worker to be dismissed: written
Art. 17(3) LA: Notice of termination must be in writing.
Notice period:
Art. 17 (1), (2) LA:
* The notice period varies according to the length of the contract as follows:
- 1 month's notice (or pay in lieu of notice) in the case of a contract of 3 years or more;
- 2 weeks' notice (or pay in lieu of notice) in the case of a contract of less than 3 years;
- 7 days' notice (or pay in lieu of notice) in the case of a contract from week to week.
* A contract of employment determinable at the will of the party may be terminated at the close of anyday without notice.
Pay in lieu of notice: Yes
Art. 18 (4) LA: Notwithstanding section 17(1), either party to a contract of employment may terminate the contract without notice if that party pays to the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice.
Notification to the public administration: No
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 legal definition of a collective dismissal. However, Art 65(1) LA defines a redundancy as "the introduction of major changes in production, programme, organization, structure or technology of an undertaking that are likely to entail terminations of employment of workers in the undertaking.<br/>
Art. 65 LA. No reference to any number of employees concerned.
Notification to the public administration Yes
Art. 65 (1) b) LA: u201cthe employer shall consult the trade union concerned on measures to be taken to avert or minimize the termination as well as measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.u201d
Notification to trade union (workers' representatives) Yes
Art. 65 (1) a) LA: u201cthe employer shall provide in writing to the Chief Labour Officer and the trade union concerned, not later than three months before the contemplated changes, all relevant information including the reasons for any termination, the number and categories of workers likely to be affected and the period within which any termination is to be carried out.u201d
Notification to workers' representatives: Yes
Art. 65 (1) (a) LA: . the employer shall provide in writing to the Chief Labour Officer and the trade union concerned, not later than three months before the contemplated changes, all relevant information including the reasons for any termination, the number and categories of workers likely to be affected and the period within which any termination is to be carried out.u201d
Approval by trade union (workers' representatives) No
Approval by workers' representatives No
Priority rules for collective dismissals (social considerations, age, job tenure) No
Art. 65 (1) b) LA: u201cthe employer shall consult the trade union concerned on measures to be taken to avert or minimize the termination as well as measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.u201d
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) No
Priority rules for re-employment Yes
Art. 65 (1) b) LA: the employer must consider measures aiming at averting dismissals and mitigating their adverse effects such as finding alternative employment must be examined during consultation with the trade union.
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
: 0 month(s)
mine workers: Yes
Art. 64 (2) c) LA.
managerial / executive positions: Yes
Art. 64 (2) LA provides that the court may (a) order the employer to re-instate the worker from the date of the termination of employment; or (b) order the employer to re-employ the worker, either in the work for which the worker was employed before the termination or in other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination.
Art. 14(3) WA provides that the Commission on Human Rights and Administrative Justice may order the reinstatement of an employee that has been unfairly dismissed by an employer in retaliation to whistleblowing.
police: No
Art. 64 LA.
The competent body is the National Labour Commission. It shall exercise adjudicating and dispute settlement functions in complete independence (art. 138 LA). Moreover, in settling an industrial dispute, the Commission shall have the same enforcing powers as the High Court and enjoy the same privileges and immunities in regard to its proceedings (art. 139 LA).
Art, 13(1) WA: “A whistleblower who honestly and reasonably believes that that whistleblower has been subjected to victimisation or learns of a likely subjection to victimisation because a disclosure has been made, may in the first instance make a complaint to the Commission on Human Rights and Administrative Justice”.
Existing arbitration: Yes
Mediation: art. 154 LA.
Arbitration: art. 157 LA.
Definition of collective dismissal (number of employees concerned): 51.7
Figures for the year 2014.
This figure includes:
- Redundancy/lay-Off/ Severance pay (12.5%)
- Summary dismissals (19.6%)
- Unfair terminations (25.5%)
Source: Ministry of Employment and Labour Relations Statistical Report 2015