Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

Article 2(3) of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. In its previous comments, the Committee invited the Government 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 to indicate the number of workers affected by any further measures adopted in this respect. Section L.122-3 of the Labour Code provides for two types of fixed term contract: contracts for which the period is fixed precisely when they are concluded; and contracts concluded for a specific project or task for which the exact completion date cannot be known in advance. The Government indicates that, in accordance with section L.122-4(1) of the Labour Code, the duration of a fixed-term contract shall not, for the same employee, exceed 24 months, including renewals. In this context, any contract concluded in violation of this provision is considered to be for an indefinite period. Furthermore, section L.122-5(1) of the Labour Code provides that fixed-term contracts shall not be renewed more than twice for a specified period. In the case of the tacit renewal of a completed fixed-term contract, section L.122-6 of the Labour Code provides that the employment relationship shall continue by means of a contract for an indefinite period. However, the Committee recalls that a number of ministerial exceptions set out in L.122-1(3)(3) of the Labour Code provide for the prolongation of fixed-term contracts for up to 60 months in some sectors and for certain specific categories of workers, including teaching and research personnel of the University of Luxembourg. It also notes the adoption of the Act of 7 December 2016 amending the Labour Code by adding a new subsection 4 to section L.122-5, which provides that fixed-term contracts concluded for temporary show business workers may be renewed more than twice. The Committee requests the Government to continue providing 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. The Committee once again requests the Government to indicate the number of workers affected by any further measures adopted in this respect. It also requests the Government to indicate the measures taken or envisaged to protect the teaching and research personnel at the University of Luxembourg and temporary show business workers against abusive recourse to fixed-term contracts.

Article 4. Valid reason for termination of employment. The Committee welcomes the information provided by the Government on court rulings illustrating the valid reasons for termination of employment. For example, in a 1996 decision, the court ruled that a worker repeatedly arriving considerably late at the workplace constitutes a valid reason for dismissal with notice. The Committee requests the Government to continue providing information demonstrating the effective application of the “fundamental principle of justification” provided for in Article 4, including relevant court rulings illustrating the reasons considered to be valid grounds for dismissal.

Article 6. Temporary absence due to illness or injury. The Committee welcomes the provision of court rulings by the Government in relation to the application of Article 5(c) and (d) and Article 6 of the Convention. The Government indicates that the Labour Code explicitly qualifies certain reasons as constituting an abuse of the right of dismissal. The Government makes reference to several decisions, namely that of 22 June 1995 “Social Welfare v. Gobiet”, in which the court found that the provisions of section L.121-6 of the Labour Code, establishing special protection against dismissal for employees who are incapable of working as a result of illness or injury, are clear and unequivocal and do not provide for any restriction or exception, even in the event of serious misconduct. In this context, the court ruled in a decision of 10 July 1997 “Evis sàrl v. Babiarz” that a long absence due to illness cannot constitute the only reason for dismissal, which must be justified by real and serious reasons related to the aptitude or behaviour of the employee or based on the operational requirements of the enterprise. The Committee requests the Government to continue providing examples of court rulings giving effect to Article 5(c) and (d) and Article 6 of the Convention.

Article 7. Interview prior to termination of employment. The Committee recalls that, except for cases of termination for serious misconduct provided for by section L.124-10 of the Labour Code, there is still no legal requirement for the employer to indicate a reason for termination when notifying the employee. The Government once again refers to section L.124-5(2) of the Labour Code, which establishes the requirement for the employer to indicate the reason or reasons for termination based on the operational requirements of the enterprise, establishment or service. In this respect, in a decision of 14 March 2002, the court ruled that an employer is allowed to take any reorganization and restructuring measures and that it is therefore incumbent upon those who have been dismissed to prove that their rights have been violated. The Government adds that section L.124-5(2) of the Labour Code provides that the employer is required to inform the worker of the reason or reasons for termination related to the aptitude or behaviour of the worker. The Government indicates that, in relation to the determination of the enterprises that are subject to the requirement to conduct an interview prior to termination, in a decision of 30 November 1995 “Dikkricher Supermaart SA v. Meyer”, the court ruled that the total number of workers employed in the various branches of an enterprise needs to be taken into account when determining the number of personnel for the purposes of the interview becoming mandatory. The Committee notes that there is still no legal requirement for employers with fewer than 150 employees to hold an interview with the employee before dismissal. In its 1995 General Survey, Protection against unjustified dismissal, paragraph 148, the Committee recalls that the purpose of Article 7 is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties. The Committee requests the Government to provide detailed information on the measures adopted or envisaged to give full effect to this provision of the Convention, irrespective of the size of the enterprise and the number of employees, and to continue providing examples of relevant court rulings.

Article 9. Burden of proof. The Government indicates that, according to a court decision of 6 July 2000, the burden of proof lies with the employer when the reasons for dismissal are indicated in the letter giving notice. It is only when this letter does not contain the slightest indication of the reasons leading the employer to terminate the employment relationship and the employee failed to exercise his right to ask the employer about the reasons for dismissal (section L.124(5) of the Labour Code) that it is incumbent upon the employee to prove that the dismissal was not justified. The Committee draws the Government’s attention to the fact that this rule could encourage employers to fail to indicate the reasons for dismissal in order to relieve themselves of the burden of proof. In its General Survey of 1995, Protection against unjustified dismissal, paragraph 199, the Committee indicates that, in cases of termination of employment, the application of the general rule applicable in contract law, whereby the burden of proof rests on the complainant, could make it practically impossible for the worker to show that the termination was unjustified, particularly since proof of the real reasons is generally in the possession of the employer. The Committee draws the Government’s attention to the fact that Article 9(2), establishes that, in order for the worker not to have to bear alone the burden of proving that the termination was not justified, the burden of proving the existence of a valid reason for the termination shall rest on the employer. The Committee therefore requests the Government to provide information on the measures taken or envisaged to ensure that an employee who has not been informed of the reasons for dismissal does not bear the sole burden of proving that the dismissal was unjustified. It also requests the Government to provide copies of court rulings on this subject.

Application of the Convention in practice. The Committee notes with interest the examples of court rulings provided by the Government. In reply to the Committee’s previous comments, the Government indicates that neither the Employment Development Agency, nor the Research Network on Employment and the Labour Market (RETEL) have statistics concerning the activities of labour courts. Nevertheless, it adds that RETEL regularly publishes an online employment dashboard, presenting labour mobility indicators, such as recruitment and terminations. The Committee once again requests the Government to provide in its next report information 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 statistics on the activities of the labour courts (number of appeals for unfair dismissal, the outcomes of these appeals, the nature of the compensation awarded, the average time taken to examine these appeals and the number of dismissals for economic reasons).