Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Termination of Employment Convention, 1982 (No. 158) - Venezuela (Bolivarian Republic of) (Ratification: 1985)

The Committee notes the observations made by the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMERAS) and the International Organisation of Employers (IOE), received on 2 September 2015.

Article 8 of the Convention. Appeal procedure against unjustified dismissal. In its previous comments, the Committee requested the Government to provide information on the manner in which appeals can be lodged with an impartial body against unjustified dismissals. The Committee notes the ruling issued on 11 June 2015 by the First High Court of the Labour Circuit of Caracas, which is provided by the Government in its report. It further notes the Government’s indication in its report that, in order to guarantee stability of employment, the labour legislation establishes two concepts: stability, which enables workers to remain in their jobs while there is no reason to justify the termination of the employment relationship; and permanence, which offers certain categories of workers the right not to be arbitrarily dismissed by their employers. The Government maintains that both labour tribunals and the corresponding administrative authority (the labour inspectorate) are impartial bodies that may consider worker’s claims. The Committee observes that the IOE and FEDECAMERAS indicate that: (i) permanent employment and reinstatement give rise to difficulties for employers due to the obstacles and unjustified delays of the administrative authorities in termination procedures; (ii) the reinstatement of workers is approved automatically by the labour inspectorate, without assessing the reasons for the dismissal, which has a significant effect on the productivity on enterprises and the replacement of inefficient workers; (iii) the labour inspectorate is an authority that is dependent on the People’s Ministry for the Social Labour and Security Process, which results in the transfer of labour justice from the tribunals to the administrative authority, giving rise to serious problems of delays and Government interference. The Committee recalls that, under section 425 of the Basic Act concerning labour and male and female workers (LOTTT), the labour inspectorate must examine the grounds given by the employer for the dismissal and this may result in a request for reinstatement from the labour inspectorate. The Committee also recalls that, in its 1995 General Survey on protection against unjustified dismissal, it reaffirmed that the right of appeal is an essential element in the protection of workers against unjustified dismissal. The Convention also sets forth the principle whereby the body to which the appeal is made must be impartial, which means, for example, that a hierarchical or administrative appeal cannot be considered as the appropriate form of appeal procedure under the provisions of the Convention, and that where such a procedure exists, provision must be made for a subsequent appeal to an impartial body. The Convention refers to the following as constituting such a body: a court, labour tribunal, arbitration committee or arbitrator. It therefore leaves to each country the choice of the competent body or bodies, provided that such bodies are impartial (paragraph 178 of the 1995 General Survey). The Committee understands that in the present case the neutral bodies are the labour tribunals. The Committee requests the Government to indicate whether measures have been envisaged to facilitate appeals to labour tribunals in the event of unjustified dismissal. The Committee once again requests the Government to provide data on the activities of labour tribunals in relation to appeals lodged against dismissal, the outcome of such appeals and the average time taken for an appeal to be decided in cases of justified dismissal. Please provide examples of recent court rulings relating to the definition of justified reasons for dismissal.