Convention 158 provides that “[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination” (Art.4).
The ILO Committee of Experts on the Application of Conventions and Recommendations has frequently suggested that the need to base termination of employment on a valid reason is the cornerstone of the Convention’s provisions.
The adoption of this principle removes the possibility for the employer to unilaterally end an employment relationship of indeterminate duration by means of a period of notice or compensation in lieu thereof. The Convention further requires that the reason given be connected with one of the following grounds: (i) the capacity of the worker; (ii) the conduct of the worker; or (iii) the operational requirements of the undertaking, establishment or service.
When no valid grounds for dismissal are required by statutory provisions, this does not mean that employers enjoy total freedom to terminate employment contracts. For example, provisions forbidding discrimination may contribute to protecting workers against wrongful or unfair dismissals even in those countries that do not require a valid reason for dismissal.
Several international labour standards provide guidance as to what reasons would not constitute a valid reason for terminating an employment relationship. For example, according to two fundamental ILO conventions – the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) – the following grounds shall constitute prohibited grounds of dismissal (discrimination): trade union membership, participation in union activities outside working hours or, with the consent of the employer, within working hours; race; colour; sex; religion; political opinion; national extraction; or social origin.
Convention No. 111 also provides for the possibility of adding other prohibited grounds of discrimination, to be determined at the national level after consultation with the social partners. Additionally, Convention No. 158 and Recommendation No. 166 provide for other prohibited grounds for dismissal.