Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Termination of Employment Convention, 1982 (No. 158) - Luxembourg (Ratification: 2001)

The Committee notes the Government’s first report on the application of the Convention. It requests the Government to provide further information in its next report on the following points.

1. Article 2, paragraph 3, of the Convention. The Committee notes that a system of exceptions is envisaged by the Acts of 5 July 1991 and 28 April 1998 for certain contracts made by the administration concluded for a fixed period between the State and teaching personnel in the national education system which may be renewed more than twice and for a total duration exceeding 24 months. It requests the Government to indicate the manner in which the protection afforded by the Convention is secured for this type of contract.

2. Article 4. The Committee notes the court decisions transmitted by the Government concerning the interpretation of section 22 of the Labour Contracts Act of 24 May 1989, as amended. It requests the Government to provide further information on the possibility for the employer to refrain from providing reasons for dismissal when notifying the employee (sections 20 and 22 of the Act amended on 24 May 1989). The Committee requests the Government to indicate how the dismissal without given reasons is in conformity with Article 4 of the Convention. It would also be grateful if the Government would indicate the manner in which the courts continue to develop the notion of "loss of confidence" by providing examples of relevant court decisions.

3. Article 5(c). The Committee notes the provisions of the Act of 26 May 2000 on the protection of the worker in the context of an investigation into sexual harassment. It requests the Government to indicate the manner in which it is ensured that the fact of the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative authorities does not constitute a valid reason for termination.

4. Article 5(d). The Committee asks the Government to indicate the manner in which protection is ensured against termination of service based on family responsibilities or political opinion, as set out in the Convention. It would appreciate being provided with information on the progress achieved in relation to Bill No. 5249, referred to by the Government in its report, establishing a framework to facilitate equality of treatment in employment and work.

5. Article 6. The Committee refers to paragraph 138 of the General Survey of 1995 concerning additional protection for victims of occupational injuries and diseases and requests the Government to continue providing examples of relevant court decisions.

6. Article 7. The Committee notes the provisions of section 19(1) of the Act amended on 24 May 1989 and requests the Government to indicate how effect is given to Article 7 of the Convention in the case of employers with fewer than 150 employees.

7. Article 9, paragraph 2. The Committee requests the Government to indicate the manner in which national law and practice ensure that an employee who has not requested notification of the reasons of termination within the statutory period (section 22(3) of the Act amended on 24 May 1989) does not have to bear alone the burden of proving that termination was not justified and that the burden of establishing if valid reason for termination rests on the employer. It also requests the Government to provide further information on the application of section 22(3) of the Act amended on 24 May 1989 in relation to an employee who has been notified of the reasons for her or his dismissal during the interview prior to termination.

8. Article 10. The Committee would be grateful if the Government would indicate the conditions under which the courts are empowered to order the payment of adequate compensation (indicating how the amount of such compensation is determined) or such other relief as may be deemed appropriate.

9. Article 11. The Committee notes the court decisions provided by the Government concerning the procedures for claiming compensation in lieu of notice within the same time limit of three months as envisaged for claims for compensation for unjustified termination. The Committee refers to paragraphs 240 and 262 of the General Survey of 1995 concerning the distinction between compensation in lieu of notice, severance allowance and compensation for unjustified dismissal, and requests the Government to continue providing examples of relevant court decisions.

10. Part V of the report form. The Committee requests the Government to provide general information on the manner in which the Convention is applied in practice, including for example statistics on the activities of labour courts, the labour administration and the labour and mines inspectorate (the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for these appeals to be examined), and also information on the number of terminations for economic or similar reasons.