Referencias
Ghana has not ratified the ILO Convention Concerning the Termination of Employment (No. 158, 1982).
Labour Act [LA], Act No. 651 of 2003
(in force since 31 March 2004)
Fecha:
1 Jan 1970;
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Labour Regulations, 2007 (L.I. 1833)
(in force since 31 July 2007)
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Whistle-blower Act [WA], Act No. 720 of 2006
(in force since 16th October 2006)
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Ámbito de aplicación
Tamaño de las empresas excluidas (≤): ninguna
Categorías de trabajadores excluidas: cuerpos de seguridad estatales, personal de prisiones, policía, ejército
▷ Labour Act (LA)
→ Section 1 LA explicitly excludes members of the Armed Forces, the Police Service, the Prison Service, and Security and Intelligence Agencies.
→ Section 32 LA Certain sub-parts of the Act do not apply to workers in family businesses where only family members are employed.
→ Section 44 LA also excludes domestic workers and task workers in private homes from specific sub-parts.
CDD regulados: No
The Labour Act does not explicitly regulate fixed-term contracts. However, note must be taken of the provisions of Section 12 LA.
→ Section 12 LA indicates that:
(1) The employment of a worker by an employer for a period of six months or more or for a number of working days equivalent to six months or more within a year shall be secured by a written contract of employment.
(2) A contract of employment shall express in clear terms the rights and obligations of the parties.
Razones de utilización legítima de CDD: sin restricción
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 (§§ 73 to 78 LA)
→ Under Section 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".
Número máximo de CDD consecutivos: sin restricción
No statutory limitation found in the legislation reviewed.
Duración máxima acumulativa de CDD consecutivos: sin limitación
No statutory limitation regarding the maximum duration of fixed-term contracts was found in the legislation reviewed.
However, note must be taken that, under Section 75(1) LA, the temporary worker employed for a continuous period of six months or more is considered a permanent worker if their contract does not specify a duration.
Notas / Comentarios
The Labour Act does not refer to any specific legal procedure for the use of a fixed-term contract.
Only temporary and casual workers are regulated by special provisions (§§ 73 to 78 LA)
Duración maxima del periodo de prueba (en meses):
sin restricciónNo statutory maximum duration. The Labour Act refers to a "reasonable duration". The probationary period is generally provided in collective agreements.
→ Section 66 LA refers to workers serving a probation or qualifying period of employment of reasonable duration determined in advance.
→ Section 98 d) LA: A collective agreement may include provisions on the period of probation and conditions on probation.
Excluded from protection against dismissal: Si
▷ Labour Act
→ Section 66 LA indicates that: The provisions on termination of employment (Part VIII of the LA) do not apply to the following categories of workers:
(a) workers engaged under a contract of employment for specified period of time or specified work;
(b) worker serving a period of probation or qualifying period of employment of reasonable duration determined in advance; and
(c) workers engaged on a casual basis.
▷ Collective Agreements
→ Section 19 LA introduces an exception to the rules of dismissal or termination of employment (by means of a Collective Agreement), indicating that: The provisions of sections 15, 16, 17 and 18 are not applicable where, in a collective agreement, there are express provisions with respect to the terms and conditions for termination of the contract of employment which are more beneficial to the worker.
Obligación de motivar el despido: No
No legal provision explicitly requires justification to the employee.
However, Section 63 (4) LA indicates that:
termination may be unfair if the employer fails to prove that,
(a) The reason for the termination is fair; or
(b) The termination was made in accordance with a fair procedure or this Act.
Motivos autorizados (despido justificado):
Motivos prohibidos: embarazo, licencia de maternidad, presentación de una queja contra el empleador, enfermedad o accidente profesional temporal, raza, color, sexo, religión, opinion política, origen social, afiliación sindical y actividades sindicales, discapacidad, situación económica, origen étnico
→ Section 63 LA provides that:
(1) The employment of a worker shall not be unfairly terminated by the worker’s employer.
(2) A worker’s employment is terminated unfairly if the only reason for the termination is
(a) that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of a trade union;
(b) that the worker seeks office as, or is acting or has acted in the capacity of, a workers’ representative;
(c) that the worker has filed a complaint or participated in proceedings against the employer involving alleged violation of this Act or any other enactment;
(d) the worker’s gender, race, colour, ethnicity, origin, religion, creed, social, political or economic status;
(e) in the case of a woman worker, due to the pregnancy of the worker or the absence of the worker from work during maternity leave;
(f) in the case of a worker with a disability, due to the worker’s disability;
(g) that the worker is temporarily ill or injured and this is certified by a recognized medical practitioner;
(h) that the worker does not possess the current level of qualification required in relation to the work for which the worker was employed which is different from the level of qualification required at the commencement of his or her employment; or
(i) that the worker refused or indicated an intention to refuse to do any work normally done by a worker who at the time was taking part in a lawful strike unless the work is necessary to prevent actual danger to life, personal safety or health or the maintenance of plant and equipment.
(3) Without limiting the provisions of subsection (2), a worker’s employment is deemed to be unfairly terminated if with or without notice to the employer, the worker terminates the contract of employment
(a) because of ill-treatment of the worker by the employer, having regard to the circumstances of the case; or
(b) because the employer has failed to take action on repeated complaints of sexual harassment of the worker at the work place.
(4) A termination may be unfair if the employer fails to prove that,
(a) the reason for the termination is fair; or
(b) the termination was made in accordance with a fair procedure or this Act.
→ In addition, notes must be taken of the provisions of Section 14(e) regarding prohibition of restrictive conditions of employment.
Trabajadores que gozan de una protección particular (fuero): mujeres embarazadas o con licencia de maternidad
▷ Labour Act
→ Section 57(8): An employer shall not dismiss a woman worker because of her absence from work on maternity leave.
In addition, note must be taken of Section 63 (2) LA, which stipulates, among others, that: A worker’s employment is terminated unfairly if the only reason for the termination is
(a) that the worker has joined, intends to join or has ceased to be a member of a trade union or intends to take part in the activities of a trade union;
(b) that the worker seeks office as, or is acting or has acted in the capacity of, a workers’ representative; (...).
▷ Whistle-blower Act (WA), Act No. 720 of 2006
→ Section 12 WA: “A whistle-blower shall not be subjected to victimisation by the employer of the whistle-blower or by a fellow employee or by another person because a disclosure has been made.” According to Section 12(2), a whistle-blower is subjected to victimization if they are dismissed.
Forma de la notificación del despido al trabajador: escrita
→ Section 17(3) LA: Notice of termination must be in writing.
Plazo de preaviso:
→ Section 17 (1), (2) LA:
(1) 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.
(2) A contract of employment determinable at the will of the party may be terminated at the close of any day without notice.
Indemnización sustitutiva de preaviso: Si
→ Section 18 (4) LA indicates that: 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.
Notificación a la administración: No
Notification of the public administration (e.g. Chief Labour Officer) is not required for individual dismissals.
Notificación a los representantes de los trabajadores: No
Notification is not required for individual dismissals.
Aprobación de la administración publica o de organismos judiciales: No
Approval is not required for individual dismissals.
Acuerdo de los representantes de los trabajadores: No
Approval is not required for individual dismissals.
Definición de despido colectivo (número de empleados afectados)
No reference is made expressly to "collective dismissal". However, Section 65(1) LA defines a redundancy as "the introduction of major changes in production, programme, organisation, structure or technology of an undertaking that are likely to entail terminations of employment of workers in the undertaking.
→ Section 65 LA. No reference is made to any number of employees concerned.
Notificación a la administración Yes
→ Section 65 (1)(b) LA indicates that: “the 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.”
Notificación a los sindicatos (representantes de los trabajadores) Yes
→ Section 65 (1)(a) LA stipulates that: “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.”
Notificación a los representantes de los trabajadores: Yes
→ Section 65 (1)(a) LA indicates that: 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.”
Acuerdo de los sindicatos (representantes de los trabajadores) No
No explicit statutory approval is required to effect a redundancy.
Acuerdo de los representantes de los trabajadores No
No statutory approval from workers' representatives is required.
Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio) No
The Act does not provide a fixed formula for priority selection. However, consideration must be given to the provisions of Section 65 LA.
→ Section 65 (1)(b) LA: “the 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.”
Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...) No
No statutory requirement regarding priority rules for re-employment following a redundancy has been identified.
Reglas de prioridad para la re-contratación Yes
→ Section 65 (1)(b) LA indicates that: The employer is required to 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.
Severance pay:
Severance pay is not statutorily required for individual dismissals for non-economic reasons, but it may be ordered by the "National Labour Commission" as a remedy for unfair termination.
→ Section 30 (1) Where the employment of a worker is terminated, the worker is entitled to annual leave in proportion to the period of service in the calendar year.
(2) The worker shall not be deprived of any other grants or awards to which the worker is entitled, including payment in lieu of notice of termination.
(3) Subsections (1) and (2) do not apply to cases where the employer has the right to dismiss a worker without notice.
→ Section 64 indicates that: Remedies for unfair termination
64. (1) A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission.
(2) If, upon investigation of the complaint, the Commission finds that the termination of the employment is unfair, it may
(a) order the employer to reinstate the worker from the date of the
termination of employment;
(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; or
(c) order the employer to pay compensation to the worker.
tenure ≥ 6 meses: 0 mes(es).
tenure ≥ 9 meses: 0 mes(es).
tenure ≥ 1 año: 0 mes(es).
tenure ≥ 2 años: 0 mes(es).
tenure ≥ 4 años: 0 mes(es).
tenure ≥ 5 años: 0 mes(es).
tenure ≥ 10 años: 0 mes(es).
tenure ≥ 20 años: 0 mes(es).
Redundancy payment:
The amount of redundancy payment is not fixed by law but is a matter of negotiation between the employer and the employee or union. Disputes can be referred to the National Labour Commission.
→ Section 65(4) LA indicates that: the amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other.
→ Under Section 65(5), any dispute that concerns the redundancy pay and the terms and conditions of payment may be referred to the Commission by the aggrieved party for settlement, and the decision of the Commission shall subject to any other law be final.
tenure ≥ 6 meses: 0 mes(es).
tenure ≥ 9 meses: 0 mes(es).
tenure ≥ 1 año: 0 mes(es).
tenure ≥ 2 años: 0 mes(es).
tenure ≥ 4 años: 0 mes(es).
tenure ≥ 5 años: 0 mes(es).
tenure ≥ 10 años: 0 mes(es).
tenure ≥ 20 años: 0 mes(es).
→ Section 65(2) provides that a worker who has been made redundant “is entitled to be paid by the undertaking at which that worker was immediately employed prior to the close down, arrangement or amalgamation, compensation, in this section referred to as “redundancy pay”.
→ Section 65(3) indicates that: In determining whether a worker has suffered any diminution in his or her terms and conditions of employment, account shall be taken of the past services and accumulated benefits, if any, of the worker in respect of the employment with the undertaking before the changes were carried out.
→ Section 65(4) stipulates that: the amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other. (...).
mineros: Si
The National Labour Commission (NLC) can order compensation to a worker if it finds that the termination was unfair. The amount is determined on a case-by-case basis.
→ Section 64 (2)(c) LA provides that: 64. (1) A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission.
(2) If, upon investigation of the complaint, the Commission finds that the termination of the employment is unfair, it may; (...); order the employer to pay compensation to the worker.
: No
No
Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): The statutory provisions do not provide a specific calculation method or legal ceiling for compensation for unfair dismissal.
directores/ gerentes: Si
▷ Labour Act
→ Section 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.
▷ Whistle-blower Act (WA), Act No. 720 of 2006
→ Section 14(3) WA provides that the Commission on Human Rights and Administrative Justice may order the reinstatement of an employee who has been unfairly dismissed by an employer in retaliation for whistleblowing.
policía: No
No explicit reference is made to conciliation. However, note must be taken that under Section 152(1)(a) LA, the National Labour Commission is invested with the power to make regulations providing for the procedure for negotiation, mediation and arbitration proceedings, under the Labour Act.
▷ Labour Act
→ Section 64 LA provides that: The competent body is the National Labour Commission. It shall exercise adjudicating and dispute settlement functions in complete independence (§ 138 LA).
Moreover, under Section 139 La, in settling an industrial dispute, the National Labour Commission shall have the same enforcing powers as the High Court and enjoy the same privileges and immunities in regard to its proceedings.
→ Section 139 LA indicate that:
(1) The Commission shall exercise the following powers:
(a) Receive complaints from workers, trade unions, and employers, or employers’ organization
(i) On industrial disagreement; an
(ii) Allegation of infringement of any requirements of this Act and Regulations made under this Act;
(b) Require an employer to furnish information and statistics concerning the employment of its workers and the terms and conditions of their employment in a form and manner the Commission considers necessary; and
(c) Require a trade union or any workers’ organization to provide such information as the Commission considers necessary;
(d) Notify employers and employers’ organizations or workers and trade unions in cases of contravention of this Act and Regulations made under this Act and direct them to rectify any default or irregularities.
(2). Without prejudice to subsection (1), the Commission shall in settling an industrial dispute, have the powers of the High Court in respect of
(a) Enforcing the attendance of witness and examining them on oath, affirmation or otherwise.
(b) Compelling the production of documents; and
(c ) the issue of a commission or request to examine witness abroad.
(3)The Commission shall, in respect of its proceedings, enjoy the same privileges and immunities pertaining to proceedings in the High Court.
▷ Whistle-blower Act (WA), Act No. 720 of 2006
→ Section 13(1) WA: “A whistle-blower who honestly and reasonably believes that the whistle-blower 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”.
Arbitraje: Si
The National Labour Commission facilitates the settlement of disputes through mediation and arbitration.
▷ Mediation
→ Section. 154 LA provides that:
(1) Subject to the time limit in respect of essential services, if the parties fail to settle a dispute by negotiation within seven days after the occurrence of the dispute, either party or both parties by agreement may refer the dispute to the Commission and seek assistance of the Commission for the appointment of a mediator.
(2) Where the Commission is satisfied that the parties have not exhausted the procedures established in the collective agreement or have not agreed to waive those procedures, the Commission shall order the parties to comply with those procedures within such time as the Commission may determine.
(3) When the Commission is satisfied that
(a) the parties have exhausted the procedures established in the collective agreement;
(b) the parties have failed to settle the dispute; and
(c) none of the parties has sought the assistance of the Commission to appoint a mediator, the Commission shall request the parties to settle the dispute by mediation within three days of the Commission becoming aware of the non-resolution of the dispute.
(4) Where the parties agree to mediate and at the end of the mediation proceedings, there is settlement of the dispute, the agreement between the parties as regards the terms of the settlement shall be recorded in writing and signed by the mediator and the parties to the dispute.
(5) The settlement agreement referred to in subsection (4) shall be binding on all the parties unless the agreement states otherwise.
(6) When, at the end of a mediation proceedings, no agreement is reached, the mediator shall immediately declare the dispute as unresolved and refer the dispute to the Commission.
▷ Arbitration
→ Section. 157 LA indicates that:
(1) When mediation fails under section 154 (6) and the dispute is referred to the Commission, the Commission shall, with the consent of the parties, refer the dispute to an arbitrator or an arbitration panel appointed under section 156.
(2) The parties to an industrial dispute shall, within three days after the appointment of an arbitrator or an arbitration panel under Section 156, submit to the arbitrator in writing a statement of the issues or questions in dispute, signed by one or more of the parties or their representatives.
(3) The Arbitrator shall, as soon as possible, appoint a time and place for the hearing and notify the parties.
(4) If any party fails to appear before the arbitrator after the expiration of seven days after being so notified, the arbitrator shall proceed to hear and determine the dispute.
Duración del procedimiento:
The statutory provisions do not provide specific timelines for the entire dispute resolution procedure.
Carga de la prueba: empleador
Under Section 63(4) LA, in a claim of unfair dismissal, the burden of proving that the dismissal was for a fair reason and followed a fair procedure rests on the employer.
→ Section 63(4) LA indicates that: A termination may be unfair if the employer fails to prove that,
(a) The reason for the termination is fair; or
(b) The termination was made in accordance with a fair procedure or this Act.
Definición de despido colectivo (número de empleados afectados): 51.7
Figures for the year 2018.
This figure includes:
- Redundancy/lay-Off/ Severance pay: (10.6%)
- Summary dismissals (22.7%)
- Unfair terminations : (26.3%)
Source: Ministry of Employment and Labour Relations Statistical Report 2018