Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the information contained in the Government’s report received in November 2011 in reply to its previous comments. The Government indicates that the accident insurance reform, which entered into force in January 2011, introduced a number of changes in the system for the compensation of victims of employment accidents and occupational diseases. The Committee invites the Government to provide with its next report, by way of illustration, court decisions giving effect to Article 6 of the Convention (temporary absence because of illness or injury). The Committee also once again requests the Government to provide information in its next report on the manner in which the Convention is applied in practice, irrespective of the size of the enterprise and the number of employees, and particularly the statistics of the National Observatory of Industrial Relations and Employment and the labour administration covering, among other matters, the activities of the labour courts (number of cases concerning unjustified dismissal, the outcome of these cases, the nature of the compensation granted, the average time taken to resolve the cases and the number of dismissals for economic or similar reasons).

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. In its 2009 direct request, the Committee noted that sections L.122-4 and L.122-5 of the Labour Code, and a number of ministerial exceptions envisaged in section L.122-4, paragraph 3, of the Labour Code, envisaged an extension of the duration of contracts of employment for a specified period of time in certain sectors and for certain specific categories of workers. The Government had nevertheless indicated that, with the exception of the provisions respecting notice periods and severance payments, all the other social protection measures apply to persons who have concluded a contract for a specified period of time and social security. The Government adds that there have been no amendments to the legislation in this respect during the period covered by the report and that it undertakes to provide information on any measures that may be adopted in this field in future. The Committee therefore invites the Government to continue to provide information on the manner in which workers who have concluded a contract of employment for a specified period of time benefit from the protection afforded by the Convention, and also to indicate the number of workers concerned by any further measures adopted in this respect.

Article 4. Valid reason for termination of employment. The Committee recalls that, except in cases of dismissal for serious misconduct, as envisaged in section 124-10 of the Labour Code, there is still no legal obligation for the employer to provide valid reasons for a dismissal when notifying the employee. In reply to its 2008 direct request, the Government refers once again to section L.124-5 of the Labour Code, which provides that, even in cases other than dismissal for serious misconduct, a worker may request the employer to send a written statement indicating the reason or reasons for the dismissal if the latter have not been indicated, on condition that the request is made during the month following notification. The Government considers that this provision is in accordance with the Termination of Employment Recommendation, 1982 (No. 166), under the terms of which a worker should be entitled to receive, on request, a written statement from the employer of the reason or reasons for the termination. The Committee notes that for a termination to be considered valid, section 124-11 of the Labour Code requires the existence of real and serious reasons related to the capacity or conduct of the employee or based on the operational necessities of the enterprise, establishment or service. The Committee notes that no decisions establishing precedents in relation to invalid dismissal have been provided for the period concerned. The Committee therefore requests the Government to provide information in its next report illustrating how the effective application is ensured of the “fundamental principle of justification” envisaged in Article 4, including examples of recent case law illustrating the reasons considered to be valid grounds for dismissal.

Article 5(c) and (d). Invalid reasons for termination of employment. The Government recalls that, following the adoption of the Act of 13 May 2008, sections 241-1 and 241-2 were introduced into the Labour Code and prohibit any form of discrimination on grounds of sex in relation to termination of employment, particularly by reason of the marital or family status of the worker. The Committee also notes with interest that the Act of 13 February 2011 inserted into section 271-1 of the Labour Code a provision under which an employee may not be subject to reprisals in the case of the refusal or denunciation of an act that the employee considers to constitute unlawful receipt of benefits, corruption or trading in influence, and that any termination of a contract of employment in violation of these provisions shall be null and void. Under this provision, an employee is also entitled to apply to the president of the labour court within two weeks of the notification of invalid dismissal so that it can be found to be void, and therefore obtain maintenance or reinstatement in the job. The Government adds that, in the event that a worker does not seek the setting aside of the dismissal within the time limits set out in section 271-1, it is always possible, within three months of the notification of dismissal or the receipt of the reasons, to take legal action for compensation for the invalid termination of the contract of employment under the terms of sections L.124-11 and L.124-12 of the Labour Code. In such cases, if the labour court finds that the termination was invalid, the worker may then be awarded damages or be reinstated in his or her former job. The Committee invites the Government to provide examples of court decisions giving effect to these provisions.

Article 7. Interview prior to termination of employment. The Committee once again invites the Government to provide detailed information on the manner in which full effect is given to this provision of the Convention, irrespective of the size of the enterprise and the number of employees, for example by providing relevant decisions of the competent courts.

Article 9. Burden of proof. The Committee recalls that the High Court of Justice found in 2005 that an employee who has not asked in writing for reasons within one month of the notice of termination has the burden of proving that the dismissal was unfair, even where no reasons were provided in the letter notifying dismissal (Happy Relations v. Bisdorff). The Committee draws the Government’s attention to the fact that Article 9(2) specifically states that, in order for the worker not to have to bear alone the burden of proving that the termination was not justified, either the employer bears the burden of proving the existence of the valid reason or the court determines the reason having regard to the evidence provided by the parties. The Article does not contemplate the burden of proving the existence of the reason being imposed on the worker for failing to request reasons from the employer. The Committee notes that no further information has been provided by the Government on developments in case law relating to the burden of proof in cases in which an employee omits to ask the employer for an indication of the reasons for dismissal. The Committee requests the Government to provide information on the manner in which it is ensured that an employee who has not been informed of the reasons for dismissal does not have the sole burden of proving that the dismissal was unfair, including copies of decisions by courts on this matter.