Compensation for unfair dismissal - free determination by court:
1) No compensation in lieu of reinstatement awarded by the Labour Commissioner under the TEWA except in the event of closure of the enterprise, in which case compensation awarded is subject to legal limits (secs. 5, 6 and 6A TEWA - see below).
2) Under the IDA, there are no limits on compensation awarded by the Labour Tribunal: see sec. 31C(4) and 31C(6)(c).
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Remedies under the TEWA:
- Any dismissal in contravention of the provision of the TEWA (=without prior approval of the Labour Commissioner or prior consent of the worker) is illegal, null and void and therefore entails reinstatement and payment of back wages. The TEWA also foresees the possibility for the worker whose employment has been terminated to receive "any other legal remedy".
-Under the TEWA, compensation in lieu of reinstatement is only payable in the event of termination by the employer resulting from the closure of any business, trade or industry in violation of the TEWA according to the following formula:
* 1 to 5 years of service: 2.5 months per year of service (max. compensation: 12.5 months)
* 6 to 14 years of service: 2 months per year of service (max. compensation: 30.5 months)
* 15 to 19 years of service: 1.5 months per year of service (max. compensation: 38 months)
* 20 to 24 years of service: 1 month per year of service (max. compensation: 40 months)
* 25 to 34 years of service: 0.5 month per year of service (max. compensation: 48 months)
2) Remedies under the IDA:
Any relief or redress may be granted by the Labour Tribunal including compensation in lieu of reinstatement freely determined by the Tribunal.
Sec. 5, 6 TEWA. See also sec. 6B TEWA on the right to apply for any other legal remedy"
Sec. 6A(1) and 6D TEWA: illegal dismissal resulting from the closure of any business, trade or industry. The formula to be followed for the computation of compensation to be paid to a worker in such case was set out by the Labour Commissioner (under sec. 6D of the TEWA) in Order No. 1384/07 of 15 March 2005.
2) IDA: see sec. 31C(4) and 31C(6)(c).
Sec 5 TEWA: termination by the employer in violation of the provision of the TEWA shall be illegal, null and void.
Sec. 6 TEWA: Reinstatement.
Preliminary mandatory conciliation:
- No conciliation foreseen under the TEWA.
- Under the IDA, industrial disputes can be settled by conciliation by the labour commissioner. However, such conciliation is not mandatory (sec. 3, secs. 11 to 15 IDA).
Competent court(s) / tribunal(s):
- Complaints alleging any violation of the TEWA shall be brought before the Labour Commissioner within 6 months from the date of the dismissal (sec. 6 and sec. 6B TEWA, as amended in 2008 (previously 3 months).
Complaints relating to the enforcement of the Labour Commissioner's payment orders rest with the Magistrate's Court.
- Pursuant to the IDA, the labour tribunals have jurisdiction over applications concerning employment termination by the employer and payment of gratuity or other benefits arising from that termination provided that such applications are made within 6 months from the date of termination (sec. 31B(1) and sec. 31B(7) IDA, as amended in 2008 (previously 3 months).
- No arbitration under the TEWA. Disputes regarding terminations in violation of the approval requirement of that Act
are heard by the Labour Commissioner (sec. 6 TEWA)
However, sec. 6B provides that the TEWA shall not be construed as affecting the rights of a workman whose employment has been terminated to apply for any other legal remedy in respect of such termination or as affecting the jurisdiction of any court, tribunal or institution to grant relief in respect of such termination.
- Under the IDA, industrial disputes can be referred to arbitration by the labour Commissioner if the parties so agree, or by the Minister of Labour without prior consent of the parties if he or she considers that industrial dispute to be of a minor nature. (sec. 3(1) and 4(1) IDA).
Industrial dispute is defined under sec. 48 IDA as "any dispute or difference between an employer and a workman or between employers and workmen or between workmen and workmen connected with the employment or non-employment, or the terms of employment, or with the conditions of labour, or the termination of the services, or the reinstatement in service, of any person and for the purposes of this definition " workmen " includes a trade union consisting of workmen ".
The IDA expressly specifies that industrial dispute arising from retrenchment may be settled by arbitration (sec. 31H)
Length of procedure:
The Industrial Disputes (Hearing and Determination of Proceedings) (Special Provisions) Act, No. 13 of 2003 sets out statutory time frames for adjudicating complaints made under the TEWA and the IDA as follows:
1) Applications made to the Labour Commissioner under the TEWA: 2 months for the date of the receipt of the application (sec. 12 and 13).
2) Applications to the Labour Tribunal: 4 months from the date of the application (sec. 5(1)). Appeals against the tribunal's decision shall be lodged within 30 days of the decision and decided within 4 months (sec. 6).
Notes / Remarks
In the absence of requirement of valid grounds for dismissal, this section refers to the various remedies and procedures foreseen in the event of non compliance with the provisions on termination of the TEWA and the IDA which covers industrial disputes in general and includes termination aspects such as retrenchment and prohibited grounds for dismissal.