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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2(3) and Articles 4, 6 and 9 of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. Valid reason for termination of employment. Temporary absence due to illness or injury. Burden of proof.The Committee notes the information provided by the Government in response to its previous comments concerning the application of the provisions of the above-mentioned Articles.

Article 7. Interview prior to termination of employment. The Committee notes with interest the examples of relevant court decisions provided by the Government. The Government states that workers shall not be dismissed for reasons relating to their conduct or work before they have been given an opportunity to defend themselves against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity. The Committee notes, however, that under the legislation in Luxembourg, in the case of dismissal with notice, the employer is not obliged to invite the employee concerned to a prior interview unless the company has at least 150 employees. The Committee recalls that the wording of Article 7 reflects the basic principle of the right to defence. When persons risk sanctions as serious as termination of employment, which may jeopardize their careers and sometimes their futures, it is essential that they be able to defend themselves. Article 7 establishes the principle that workers, before their employment is terminated, must have an opportunity to defend themselves against the allegations made, which presupposes that the latter should be expressed and brought to their attention before the termination (see the General Survey on protection against unjustified dismissal, 1995, paragraphs 145 and 146). The Committee requests the Government to provide detailed information on any measures taken or envisaged, in consultation with the social partners, to ensure that workers in enterprises with fewer than 150 employees have the opportunity to defend themselves against allegations made against them before being dismissed.

Application in practice of the Convention. The Committee notes the examples of relevant court decisions and the detailed information provided by the Government on how the Convention is applied in practice. The Committee requests the Government to continue to provide information on any developments affecting the application in practice of the Convention.

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

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).

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

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.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the detailed information provided by the Government in November 2008 in reply to the 2007 direct request.

1. Article 2, paragraph 3, of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. The Government indicates that the cases envisaged for the extension of contracts concluded for a fixed period under sections L.122-4 and L.122-5 of the Labour Code are the result of a request made directly by the university sectors concerned, and particularly the research sector, with a view to obtaining greater flexibility. Complex projects often cover a period of over 24 months. Moreover, certain researchers do not want a contract binding them indefinitely to their employer and prefer greater mobility so that they can diversify their research. The Government adds that another form of employment contract for a fixed period limited to ten hours a week, which may not exceed five years, has been introduced for students at the University of Luxembourg and in secondary education who are at least 15 years of age so as to allow them to cover their needs in part. With regard to the ministerial exemptions envisaged in section L.122-4(3) of the Labour Code, the Government indicates that they are very rare and strictly limited to highly qualified individuals working on a specific project which, for specific reasons, cannot be completed within a 24-month period. The Government wishes to specify 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 fixed period, including those relating to non-discrimination, unemployment and social security. The Committee invites the Government to continue providing information on the manner in which the protection afforded by the Convention is ensured for workers who have concluded an employment contract for a fixed period, with an indication of the number of workers concerned by any new measures adopted in this respect.

2. Article 4. Valid reason for termination of employment. The Government refers to court rulings which shed light on valid reasons for termination of employment in accordance with national legislation. The Committee recalls that, under the terms of sections L.124-5 and L.124-10 of the Labour Code, there is still no legal obligation for the employer, except in the case of dismissal for serious misconduct, to provide valid reasons for a dismissal when notifying the employee. A worker may nevertheless request the employer, by registered letter, to indicate the reasons for the dismissal within one month of notification. In this respect, the Committee reiterates that, in accordance with the “fundamental principle of justification”, as reflected in Article 4 of the Convention, the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking. The Committee also recalls that Paragraph 13(1) of the Termination of Employment Recommendation, 1982 (No. 166), indicates that: “a worker who has been notified of termination of employment or whose employment has been terminated should be entitled to receive, on request, a written statement from his employer of the reason or reasons for the termination”. The Committee requests the Government to continue reporting any new court decisions that give full effect to this provision which constitutes the “cornerstone” of the Convention (paragraph 5 of the General Survey of 1995).

3. Article 5(c) and (d). Invalid reasons for termination of employment. In reply to its previous comments, the Government indicates that no court decisions have been handed down under the new provisions respecting equality of treatment in employment and work introduced into the Labour Code by the Act of 28 November 2006. The Committee hopes that the Government will provide any further information available in its next report on the effect given in practice to these provisions, with an indication, of the manner in which it is ensured that family responsibilities (Article 5(d)) and participation in proceedings against an employer involving alleged violations of laws or regulations (Article 5(c)) do not constitute valid reasons for termination of employment.

4. Article 6. Temporary absence because of illness or injury. In reply to the previous direct request, the Government indicates that a reform of accident insurance is being formulated and that the Bill will be communicated to the Committee once it has been approved by the Council of Government. The Committee recalls the desirability of affording greater protection to victims of employment injury. It hopes that in its next report the Government will provide information on the manner in which full effect is given to Article 6 of the Convention, including, by way of illustration, copies of relevant court rulings.

5. Article 7. Interview prior to termination of employment. In reply to the previous comments, the Government indicates once again that “a good number” of employers employing fewer than 150 workers apply, even in the absence of legally binding provisions, the principle of a prior interview. Moreover, it is envisaged in enterprises employing at least 15 employees that staff delegates contribute to the resolution of individual disputes that may arise between the employer and employees of the enterprise relating to the obligations set out in this provision of the Convention. The Committee notes that there is still no legal obligation for employers with fewer than 150 employees to hold an interview with the employee prior to dismissal. The Committee once again 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 (paragraph 148 of the General Survey of 1995). The Committee invites the Government to provide detailed information on the manner in which full effect is given to this provision of the Convention, regardless of the size of the enterprise and the number of employees, for example by providing relevant decisions of the competent bodies.

6. Article 9. Burden of proof. In its previous comments, the Committee referred to section L.124-11(3) of the Labour Code, which provides that, if in the month following the notification of dismissal the employee has not asked the employer to state the reasons for the dismissal, the employee reserves the right to establish, through any means, that the dismissal was unfair. The Government indicates in its report that it is unlikely that an employee would take a case to the labour courts without having asked for an indication of the reasons for the dismissal in the month following notification. However, the Committee notes a ruling by the High Court of Justice confirming that an employee who has not asked for an indication of the reasons has the burden of proving that the dismissal was unfair, even where there is a total lack of reasons in the letter notifying dismissal (C.S.S 16 June 2005, No. 29338, Happy Relations v. Bisdorff). The Committee asks the Government to specify in its next report 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.

7. Part V of the report form. The Committee notes the 2007 report of the labour and mines inspectorate, and the statistics on dismissals for economic reasons, prepared by the secretariat of the Committee on the Economic Situation, established by the Act of 22 December 2006 to promote continued employment, which was attached to the Government’s report. The Committee requests the Government to provide additional information on the manner in which effect is given to the Convention 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).

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Parts I and II of the report form. Detailed information on applicable legislation. The Committee notes the information contained in the Government’s report received in November 2006, referring to the provisions of the amended Labour Contracts Act of 24 May 1989. The Committee notes, however, that the Act of 31 July 2006 introducing the Labour Code came into effect on 1 September 2006 and repealed the Act of 24 May 1989. The Committee draws the Government’s attention to the importance of providing up to date and relevant information on the application of the provisions of the Convention and, in particular, on any new legislative developments relating to the issues covered by the Convention. The Committee asks the Government to provide a report containing specific information for each of the Articles of the Convention on the provisions of laws or regulations or on any other measures taken to ensure the application of each of the provisions set forth in the Articles of the Convention.

2. Article 2, paragraph 3, of the Convention. Adequate safeguards against recourses to contracts of employment for a specified period of time. The Committee refers to its 2004 direct request in which it noted that a system of exception is provided 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. In this respect, the Government refers in its report to the preliminary ruling of the Constitutional Court of 20 October 2006, which has considered that the exemption provided by the Act of 5 July 1991 is not justified in regard to the constitutional principle that all Luxembourgers are equal before the law. The Government states that the Council of Ministers has already decided that steps will be taken to regularize the situation of those concerned. Nevertheless, it is the Committee’s understanding that these aforementioned provisions of the Acts of 5 July 1991 and 28 April 1998 have been reproduced and supplemented by sections L.122-4 and L.122-5 of the Law of 31 July 2006 introducing the Labour Code. In this regard, the Committee takes note of the number of cases in which fixed-term labour contracts may be renewed more than twice and for a total duration exceeding 24 months. The Committee asks the Government to provide detailed information on the manner in which the protection afforded by the Convention is ensured for all workers employed under fixed-term contracts in pursuance of sections L.122-4 and L.122-5 of the Labour Code.

3. Article 4. Requirement for a valid reason for termination. In reply to the Committee’s previous comments, the Government states in its report that, even though section 20 of the Act of 24 May 1989 does not specifically provide for the immediate communication of the reasons for dismissal, just as section 21 does not provide that the resigning worker must give the reasons for his resignation, section 22 requires that the employer provide the employee, at his request, with the specific reason or reasons for his dismissal. If the worker contests the existence of a valid reason, he has the opportunity to take the case before the courts. The Committee recalls that the obligation to justify termination of employment with a valid reason only applies to the employer in this Convention. A worker’s freedom to end an employment relationship of indeterminate duration, subject to an obligation to give notice, is a basic guarantee of the freedom of labour (paragraph 77 of the 1995 General Survey on protection against unfair dismissal). The Committee notes sections L.124-5 and L.124-10 of the Labour Code, which reproduce the provisions of the repealed Act of 24 May 1989. It notes that there is still no legal obligation for the employer, unless it is a dismissal for serious misconduct, to provide valid reasons for a dismissal when notifying the worker. The Committee recalls that Article 4 of the Convention does not merely require the employer to provide justification for the dismissal of a worker, but requires, above all, that, in accordance with the “fundamental principle of justification”, the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking (paragraph 5 of the 1995 General Survey). The Committee asks the Government to provide details of recent court decisions which give full effect to this provision – one which constitutes the “cornerstone” of the Convention (paragraph 76 of the 1995 General Survey).

4. The Committee refers to it 2004 direct request in which it invited the Government to indicate how tribunals continue to develop the notion of “loss of confidence”, by the employer to its employee, as a valid reason for termination. It notes that the Government did not provide any information on this matter in its report received in November 2006. Consequently, the Committee asks the Government to provide up to date information on the manner in which this “loss of confidence” by the employer to its employee is considered as a valid reason for termination in regard to Article 4 by including copies of all relevant court decisions.

5. Article 5(c) and (d). Invalid reasons for termination.  The Committee takes notes of the Act of 26 November 2006 introducing new provisions in the Labour Code in regard to the equal treatment for matters of employment and work. In particular, it notes that any direct or indirect discrimination based on religion or beliefs, handicap, age, sexual orientation, the belonging or non-belonging, real or supposed, to an ethnic group is now prohibited, in particular in conditions of dismissal. The Committee asks the Government to provide information on the practical application of these new provisions. Please also indicate the manner in which family responsibilities (Article 5(d)) and the participation in proceedings against an employer involving alleged violation of laws or regulations, in cases other than those relating to sexual harassment and the non-respect of equality of treatment (Article 5(c)), does not constitute valid reasons for termination.

6. Article 6. Temporary absence because of illness or injury. The Committee refers once again to paragraph 138 of the 1995 General Survey, which states that it is advisable that victims of occupational injuries and diseases enjoy additional protection. The Committee asks the Government to indicate the manner in which full effect is given to this provision of the Convention, by providing, in particular, copies of any relevant court decisions.

7. Article 7. Interview prior to termination. In reply to the Committee’s previous comments, the Government states in its report that “a good number” of employers employing less than 150 workers apply, even in the absence of legally binding provisions, the “prior interview” principle. Moreover, in undertakings employing at least 15 workers, staff delegations may help to resolve any individual disputes arising between the employer and the employees. The Committee notes, however, that there is still no legal obligation for the employer to hold an interview with the employee prior to his dismissal in order to inform him of the allegations made against him and to provide him with a proper opportunity to defend himself. The Committee recalls that the purpose of this provision of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties (paragraph 148 of the 1995 General Survey). The Committee asks the Government to indicate the manner in which national legislation ensures that every worker has the opportunity to defend himself against the allegations made against him, regardless of the size of the undertaking and the number of employees.

8. Article 9. Burden of proof. The Committee notes the Government’s statement to the effect that certain legal provisions provide that, if a dismissal is contested, the burden of proving the reality and the real and serious nature of the reasons for termination rests on the employer (section L.124-11, paragraph 3, of the Labour Code). The Committee also notes section L.124-5 of the Labour Code, which provides that, if in the month following the notification of his dismissal, the employee has not asked the employer to state the reasons for the dismissal, he still reserves the right to establish, through any means, that his dismissal was unfair. The Committee asks the Government to provide information on the manner in which it is ensured that an employee who does not know the reasons for his dismissal does not have to bear alone the burden of proving that his dismissal was unjustified. Please provide copies of any relevant court decisions in this regard.

9. Part V of the report form. The Committee notes the setting up of the National Institute of Labour Relations and Employment, the main mission of which is to study the development of individual and collective labour relations and their impact on employment (section L.641-1 of the Labour Code). The Committee asks the Government to provide general information on the manner in which the Convention is applied in practice, regardless of the size of the undertaking and the number of employees, including, for example, statistics from the National Institute of Labour Relations and Employment, the Labour Administration and the Labour and Mines Inspectorate, particularly on the activities of the labour courts (the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded, the average time taken for these appeals to be examined and the number of terminations for economic or similar reasons).

[The Government is asked to reply in detail to the present comments in 2008.]

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

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.