References
Labour Law of February 4, 2007 (LL)
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Scope
Size of enterprises excluded (≤): none
No statutory provisions were found in the examined legislation in this respect.
Workers' categories excluded: none
→ Section 5 of the LL indicates that:
(1) This law regulates the general relations of all sections of workers (including internal and external) with the administration. The sections of workers include:
1. Workers of the ministries and government, joint and private agencies, independent commissions, and local and foreign non-governmental organizations in Afghanistan.
2. Administrative workers of elected agencies (The National Assembly, the Provincial, District and Village Councils), military, police and national security departments.
(2) The specific work relations of worker sections mentioned in paragraph (1) of this Section are regulated by a separate legislation that is not against the provisions of this law, considering the
structure and legal nature of administration ( governmental, joint, private, non-governmental, community and foreign organizations in Afghanistan).
(3) If there is no provision found in this law and in the relevant legislative document on the work relations of specified workers, it would be regulated by the Ministry of Labour, Social Affairs, Martyrs and Disabled, provided that it is not against the law and principles of justice.
(4) Selection, appointment, determining grade and degree procedures and conditions of promotions and upgrading of the workers mentioned in paragraph (1) of this Section and officials who approve appointment, transformation, dismissal and reappointment, promotion and upgrading, pension, extension of working period, resignation, paid and non-paid leaves that is not anticipated in this law, would be regulated by separate legislation.
FTC regulated: Yes
→ See Sections 14 and 24 of the LL.
→ Section 14 (1) LL indicates that: The service contract is a written agreement entered into by the employee and the employer or institution through which the employee is obliged to work for a definite or indefinite period of time according to job description and in return to which he/she obtains salary and other allowances; (...).
Valid reasons for FTC use: no limitation
No reasons listed in the LL. However, Section 14(2) LL indicates that: The period of the fixed contract is one year and can be extended by the agreement of both parties. However, if within one month after the expiration of the fixed contract, neither party proceeds to terminate or extend the contract, it shall be considered extended with the same terms and conditions.
Maximum number of successive FTCs: no limitation
The LL does not provide for a maximum number of renewals. The only rules regarding renewals are set out in Section 14(2) of LL. This provision provides that the term of the contract is one year and can be extended by mutual agreement. However, if, after the expiry of the contract, the parties take no action within 1 month, the contract will be considered renewed with the same terms and conditions.
Maximum cumulative duration of successive FTCs: no limitation
The LL provides for a maximum duration of one FTC: 1 year. However, there is no limitation on the maximum cumulative duration of successive FTCs (§ 14(2) LL).
Maximum probationary (trial) period (in months): 3 month(s)
→ Section 17 LL indicates that:
(1) The parties to the contract can, with mutual agreement, fix a period as the probationary period of work. During this period that may not exceed three months, either party can terminate the contract by giving a notice to the other. If the contract is not terminated until the end of probationary period, it extends with the same terms and conditions.
(2) The training period will be added up on the work period of the worker.
(3) The probationary period for the civil servants will be determined by the relevant legislative document.
Obligation to provide reasons to the employee: Yes
Valid grounds (justified dismissal):
Prohibited grounds: maternity leave
- No prohibited grounds for dismissals are listed in the Labour Law.
- Similarly, the LL includes a general reference to "all discrimination" but does not contain any list of prohibited grounds for discrimination.
→ Section 9 LL prohibits any discrimination in recruiting a person, paying the salaries and the allowances to the staff, making a profession, the right to education and providing the social protection.
→ Section 125 LL prohibits the refusal to employ a woman or wage reduction on the grounds of pregnancy or nursing their children, but is silent as to dismissal on the same grounds.
→ Section 147(3) LL provides for the right of employees to participate in trade unions but is silent as to discrimination on the grounds of trade union activities.
Workers enjoying special protection: pregnant women and/or women on maternity leave
The Labour Law prohibits any transfer or termination of employment during any paid leave period unless the undertaking has been dissolved. This means that dismissal is not permitted during maternity leave (90 days).
However, this protection does not cover the entire pregnancy period.
→ Section 28 LL indicates that: Transfer, termination of contract and resignation of the worker are not permitted during legal paid leave and secondment periods, unless the organisation is completely dissolved.
Notification to the worker to be dismissed: no specific form required
→ Section 17 LL indicates that: The parties to the contract can, with mutual agreement, fix a period as the probationary period of work. During this period that may not exceed three months, either party can terminate the contract by giving notice to the other. If the contract is not terminated until the end of the probationary period, it is extended with the same terms and conditions.
→ Section 23(4) LL provides that: If the service is to be terminated on the basis of circumstances mentioned in paragraph (1) of this Section, the organization must inform the employee within one month.
→ Section 24 LL indicates that:
(1) The contractual worker can terminate the non-fixed term service contract with a one-month written notice to the employer.
(2) Before the contract expires, the employee can terminate the fixed-term contract with or
without notice in the following cases:
1. Breach of terms and conditions of the service contract or provisions of this law by the employing institution.
2. In case the worker suffers from a prolonged and incurable disease, disability or other problems that hinder to continue his/her jobs.
3. The employee or his/her legal representative, based on the provisions included in paragraphs (1 and 2) of this Section, provides a written notice to the Ministry of Labour, Social Affairs, Martyrs and Disabled on termination of the contract to avoid any possible disagreement.
.
Pay in lieu of notice: No
No statutory provisions were found in the examined legislation in this respect.
Notification to the public administration: Yes
→ Section 25(1) LL indicate: The organization has to provide a list of the workers whose contracts have been terminated based on the provisions mentioned in paragraph (1) of Section 23 of this law, along with their
work experience, specialities, qualifications, working period and skills to the Ministry of Labour, Social Affairs, Martyrs and Disabled and its respective offices in the provinces.
Notification to workers' representatives: No
No statutory provisions were found in the examined legislation in this respect.
Approval by public administration or judicial bodies: No
No statutory provisions were found in the examined legislation in this respect.
Approval by workers' representatives: No
No statutory provisions were found in the examined legislation in this respect.
Definition of collective dismissal (number of employees concerned)
The LL authorizes dismissal on the grounds of "Suspension of activities for more than 6 months" and "Dissolution of the organization or reduction of the number of employees".
In addition, the Labour Law provides for specific procedural requirements in the event of the dismissal of "all or a group of employees" but does not specify the number of employees concerned.
→ On the list of grounds for dismissal, see Section 23(1) LL.
→ On collective dismissal, Section 149 LL indicates that:
1. Government, non-government, joint ventures and private entities are not authorized to dismiss all or a group of their employees without the approval of MoLSAMD, unless provided by law.
2. In case of a long work stoppage that results in closing down the organization, it must inform the MoLSAMD three months in advance.
Notification to the public administration No
No statutory provisions were found in the examined legislation in this respect.
Notification to trade union (workers' representatives) Yes
→ Under Section 149(1) LL, collective dismissals cannot be effected without the approval of the Ministry of Labour, Social Affairs, Martyrs and Disabled (MoLSAMD).
→ Under Section 140(2) LL, in case of long-term suspension of activities that results in closing down the undertaking, the employer must inform the MoLSAMD at least 3 months before.
→ In addition, under Section 25(1) LL, the employer is required to provide a list of employees who have been dismissed on any legal ground (conduct, capacity, economic reasons - see "valid grounds") to the Ministry of Labour and Social Affairs or its provincial offices. This list, which aims at assisting employees in job placement, shall indicate the work experience, qualifications, specialities, and skills of each employee.
Notification to workers' representatives: No
No statutory provisions were found in the examined legislation in this respect.
Approval by trade union (workers' representatives) Yes
→ Under Section 149(1) LL, the government, NGOs, joint ventures and private entities are not authorized to dismiss all, or a group of employees, without the approval of the Ministry of Labour, Social Affairs, Martyrs and Disabled (MoLSAMD) unless so authorized by statute.
Approval by workers' representatives No
No statutory provisions were found in the examined legislation in this respect.
Priority rules for collective dismissals (social considerations, age, job tenure) No
No statutory provisions were found in the examined legislation in this respect.
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) Yes
→ Section 27 LL provides that:
1. If the organization stops operating as a result of unexpected events and its employees become jobless, as it restarts its activities, it must reemploy its previous experienced workers in the relevant units.
2. If the workers mentioned in paragraph (1) of this Section do not refer to the organization during the time when their posts are announced, the organization can recruit new workers in lieu of them.
Priority rules for re-employment Yes
→ Section 23(3) LL indicates that: Termination of the service contract, except by virtue of part (1) of clause (1) of this Section [Mutual agreement of both parties], is permissible only when it is not feasible to transfer the concerned person according to his/her agreement to a similar job in the same organization.
Severance pay:
→ There is no general right to severance pay upon termination of employment except when such termination is based on the following reasons:
- Cessation of activities for more than 6 months (§ 23(1)(6)),
- Dissolution of the employer's business or downsizing (§ 23(1)(7)),
- Criminal conviction which hinders the continuation of the work (§ 23(1)(8)),
- Employee's refusal to be re-assigned to his/her previous position (§ 23(1)(10)).
Thus, employees who have been dismissed for other reasons (i.e., conduct or capacity-based reasons) are not entitled to severance pay (§ 23(1)(2, 3, 4, 5, 9 and 11).
→ Under section 25(3) LL, the organization has to pay the amount of the last salary of the grade as an assistance proportionate to the period of service to the workers whose contracts have been terminated on the basis of the provisions mentioned in parts (6, 7, 8, and 10) of paragraph (1) of Section 23 of this law as the following:
- If the length of service is 1 year: one month's salary;
- From 1 up to 5 years of service: 2 months' salary;
- From 5 up to 10 years of service: 4 months' salary;
- More than 10 years of service: 6 months' salary.
tenure ≥ 6 months: 0 month(s).
tenure ≥ 9 months: 0 month(s).
tenure ≥ 1 year: 0 month(s).
tenure ≥ 2 years: 0 month(s).
tenure ≥ 4 years: 0 month(s).
tenure ≥ 5 years: 0 month(s).
tenure ≥ 10 years: 0 month(s).
tenure ≥ 20 years: 0 month(s).
Redundancy payment:
See remarks under severance pay.
→ Section 25(3) LL provides for termination payment upon termination for economic reasons, namely
- Cessation of activities for more than 6 months,
- Dissolution of the employer's business or downsizing.
The amounts to be paid vary according to the length of service, as follows:
- If the length of service is 1 year: one month's salary [not clear whether this applies to 6 and 9 months, this needs to be checked upon proper translation of the original text];
- From 1 up to 5 years of service: 2 months' salary;
- From 5 up to 10 years of service: 4 months' salary;
- More than 10 years of service: 6 months' salary
tenure ≥ 6 months: 1 month(s).
tenure ≥ 9 months: 1 month(s).
tenure ≥ 1 year: 2 month(s).
tenure ≥ 2 years: 2 month(s).
tenure ≥ 4 years: 2 month(s).
tenure ≥ 5 years: 4 month(s).
tenure ≥ 10 years: 6 month(s).
tenure ≥ 20 years: 6 month(s).
mine workers: No
The Labour Law does not regulate compensation for unfair dismissal. The only provision regarding remedies for unfair dismissal is under Section 132 LL according to which "If the employee is dismissed illegally from job, and re-employed to the previous job after a decision of the Dispute Settlement Commission or a court decision, his/her wages and other benefits of dismissal period is paid as per average wage and other benefit of the last six months prior to dismissal".
No statutory provisions were found in the examined legislation in this respect.
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): The LL does not contain any provision on compensation for unfair dismissal.
managerial / executive positions: Yes
→ Section 27(1) LL provides that: If the organization stops operating as a result of unexpected events and its employees become jobless, as it restarts its activities, it must reemploy its previous experienced workers in the relevant units
→ Section 132 LL indicates that: If the employee is dismissed illegally, and re-employed to the previous job after the decision of the Dispute Settlement Commission or court decision, his/her payments and other allowances of the dismissal period shall be made as per the average salary and other benefits of the last six months prior to dismissal.
police: No
Conciliation is not compulsory
→ Section 131(1) LL provides that "Any kinds of disputes arising from work, between the organization [employer] and employee or trainee, can be settled by the direct understanding of the organization [employer] and the employee or trainee, on the basis of the provisions of this Code and the supplement regulations and orders in relation to work."
→ Section 98 LL indicates that: Should the employee consider the disciplinary actions to be unjustified, he/she can lodge a complaint to the Labour Dispute Settlement Commission of the relevant organization presenting reasons and evidence for its being unjustified.
If the Labour Dispute Settlement Commission of the relevant organization does not take any action to remove unjustified disciplinary measures, the employee can complain to the Central Dispute Settlement Commission.
In case the dispute cannot be solved between the involved parties, the issue will be presented to the relevant court.
→ Section 131(2) provides that If the work related disputes cannot be resolved by the organization and employee or trainee, at first instance it should be resolved through Dispute Settlement Commission of the organization, and if not, then at the second instance, the issue will be resolved by the High Commission of Work Related Dispute Resolution, otherwise the issue will be decided by a competent court.
→ Section 132 LL refers to the reinstatement decision of the Dispute Settlement Commission or the Court.
→ Section 133 LL stipulates that: The issues for establishment and composition of work related Dispute Settlement Commissions
and addressing work related disputes will be regulated by the relevant legislative document.
However, statutory provisions were found in the examined legislation in this respect.
Existing arbitration: No
No statutory provisions were found in the examined legislation in this respect.
Length of procedure:
No statutory provisions were found in the examined legislation in this respect.
No statutory provisions were found in the examined legislation in this respect.