Termination of Employment Convention, 1982 (No. 158) - Central African Republic (Ratification: 2006)

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

The Committee notes with concern that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 2(4) of the Convention. Exclusions. In its previous comments, the Committee invited the Government to provide information on the effective means of protection against unjustified termination envisaged for categories of workers excluded from the scope of the Labour Code of 2009. The Committee notes the Government’s indication that no categories of workers have been excluded from the application of the Convention.The Committee therefore reiterates its request to the Government to provide information with its next report on the situation of magistrates, public servants and members of the armed forces, as categories of workers who are excluded from the application of the Labour Code of 2009, and on the manner in which the Government ensures that they are afforded protection against unjustified termination which is at least equivalent to that set out in the Convention.

Article 5. Unjustified reasons for termination. The Government indicates that, under the terms of section 152 of the Labour Code of 2009, terminations without a valid reason and terminations for reasons of the opinions of the worker, the worker’s trade union activity, membership or not of a specific union, are considered abusive. The Committee notes that the lodging of a complaint by a worker or participation in proceedings against an employer arising out of alleged violations of the legislation or the lodging of a complaint with the competent administrative authorities is also considered to be an unjustified reason for termination. The Government adds that terminations on the basis of reasons which are not real and justified are null and void.The Committee reiterates its request to the Government to indicate the measures adopted or envisaged to ensure that the other reasons set out in clauses (d) and (e) of Article 5, including marital status and the family responsibilities of the worker, do not constitute valid reasons for termination. The Committee once again requests the Government to provide examples of court rulings relating to unjustified reasons for termination, as set out in the Labour Code of 2009.

Article 7. Procedure prior to termination. The Committee refers once again to Article 7of the Convention, which provides that workers shall have an opportunity to defend themselves against the allegations made before being terminated for reasons relating to their conduct or performance. The Committee previously noted that the Labour Code of 2009 does not appear to envisage a procedure of this nature prior to or at the time of termination.The Committee once again requests the Government to indicate the manner in which national law or practice gives effect to this Article.

Article 8(3). Right of appeal to an impartial body. The Government reiterates in its report that the competent jurisdiction to examine appeals against terminations is either the regional labour inspectorate or the labour tribunal. The Government adds that, in the event of collective terminations authorized by a labour inspector, the worker or trade union concerned has a period of 30 days to lodge an appeal to the next hierarchical authority prior to the initiation of an adversarial appeal.The Committee once again requests the Government to indicate the manner in which national law or practice gives effect to Article 8(3), particularly the manner in which the right to appeal to an impartial body is guaranteed. In its previous comments, the Committee requested the Government to indicate whether, in accordance with Article 8(3), national law or practice provides for a reasonable period of time after which a worker may be deemed to have waived the right to appeal against termination.

Article 9(2). Burden of proof. The Committee reiterates its request to the Government to indicate the manner in which the regulations and procedure ensure that the worker does not have to bear alone the burden of proof in the event of an individual or collective appeal against termination.

Article 11. Period of notice. The Government reiterates that, except in cases of serious misconduct, in the context of termination, workers are entitled to a period of notice, the duration of which varies depending on the professional category (from eight days for a manual labourer or guard to three months for a managerial level employee). The Government adds that, in the event that the employer is dispensed with the obligation to give a period of notice, this obligation takes the form of the payment of compensation.The Committee once again requests the Government to provide examples of court rulings illustrating the concept of serious misconduct.

Article 13(1). Information and consultation of workers’ representatives. The Government indicates that, under the terms of section 143 of the Labour Code of 2009, any employer envisaging a termination for economic reasons is required to convene the staff delegates, the members of the enterprise committee and trade union delegates with a view to exploring other possibilities with them, in the presence of the labour inspector. The Government adds that, when the matter is raised with the labour inspector in accordance with administrative practice, the inspector has a period of 15 days to respond.The Committee once again requests the Government to indicate the period of time before the envisaged termination that the relevant information has to be provided by the employer to the workers’ representatives when termination is contemplated, as required by the Convention, and to indicate the manner in which this period is calculated (working days or non-working days).

Application of the Convention in practice. The Government indicates that several court rulings relating to individual and collective terminations have been handed down. However, they have not been transmitted to the Government for technical reasons and due to resources.The Committee once again requests the Government to provide examples of court rulings involving questions of principle related to the application of the Convention, and particularly on personal and economic reasons for termination, as set out in section 142 of the Labour Code. It also once again requests the Government to provide statistics on the activities of the labour inspection services and the labour courts in relation to terminations, including the number, duration and outcome of appeals, the level of compensation for termination, and examples of situations examined by the labour inspection services in relation to collective dismissals.

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 2(4) of the Convention. Exclusions. In its previous comments, the Committee invited the Government to provide information on the effective means of protection against unjustified termination envisaged for categories of workers excluded from the scope of the Labour Code of 2009. The Committee notes the Government’s indication that no categories of workers have been excluded from the application of the Convention. The Committee therefore reiterates its request to the Government to provide information with its next report on the situation of magistrates, public servants and members of the armed forces, as categories of workers who are excluded from the application of the Labour Code of 2009, and on the manner in which the Government ensures that they are afforded protection against unjustified termination which is at least equivalent to that set out in the Convention.

Article 5. Unjustified reasons for termination. The Government indicates that, under the terms of section 152 of the Labour Code of 2009, terminations without a valid reason and terminations for reasons of the opinions of the worker, the worker’s trade union activity, membership or not of a specific union, are considered abusive. The Committee notes that the lodging of a complaint by a worker or participation in proceedings against an employer arising out of alleged violations of the legislation or the lodging of a complaint with the competent administrative authorities is also considered to be an unjustified reason for termination. The Government adds that terminations on the basis of reasons which are not real and justified are null and void. The Committee reiterates its request to the Government to indicate the measures adopted or envisaged to ensure that the other reasons set out in clauses (d) and (e) of Article 5, including marital status and the family responsibilities of the worker, do not constitute valid reasons for termination. The Committee once again requests the Government to provide examples of court rulings relating to unjustified reasons for termination, as set out in the Labour Code of 2009.

Article 7. Procedure prior to termination. The Committee refers once again to Article 7 of the Convention, which provides that workers shall have an opportunity to defend themselves against the allegations made before being terminated for reasons relating to their conduct or performance. The Committee previously noted that the Labour Code of 2009 does not appear to envisage a procedure of this nature prior to or at the time of termination. The Committee once again requests the Government to indicate the manner in which national law or practice gives effect to this Article.

Article 8(3). Right of appeal to an impartial body. The Government reiterates in its report that the competent jurisdiction to examine appeals against terminations is either the regional labour inspectorate or the labour tribunal. The Government adds that, in the event of collective terminations authorized by a labour inspector, the worker or trade union concerned has a period of 30 days to lodge an appeal to the next hierarchical authority prior to the initiation of an adversarial appeal. The Committee once again requests the Government to indicate the manner in which national law or practice gives effect to Article 8(3), particularly the manner in which the right to appeal to an impartial body is guaranteed. In its previous comments, the Committee requested the Government to indicate whether, in accordance with Article 8(3), national law or practice provides for a reasonable period of time after which a worker may be deemed to have waived the right to appeal against termination.

Article 9(2). Burden of proof. The Committee reiterates its request to the Government to indicate the manner in which the regulations and procedure ensure that the worker does not have to bear alone the burden of proof in the event of an individual or collective appeal against termination.

Article 11. Period of notice. The Government reiterates that, except in cases of serious misconduct, in the context of termination, workers are entitled to a period of notice, the duration of which varies depending on the professional category (from eight days for a manual labourer or guard to three months for a managerial level employee). The Government adds that, in the event that the employer is dispensed with the obligation to give a period of notice, this obligation takes the form of the payment of compensation. The Committee once again requests the Government to provide examples of court rulings illustrating the concept of serious misconduct.

Article 13(1). Information and consultation of workers’ representatives. The Government indicates that, under the terms of section 143 of the Labour Code of 2009, any employer envisaging a termination for economic reasons is required to convene the staff delegates, the members of the enterprise committee and trade union delegates with a view to exploring other possibilities with them, in the presence of the labour inspector. The Government adds that, when the matter is raised with the labour inspector in accordance with administrative practice, the inspector has a period of 15 days to respond. The Committee once again requests the Government to indicate the period of time before the envisaged termination that the relevant information has to be provided by the employer to the workers’ representatives when termination is contemplated, as required by the Convention, and to indicate the manner in which this period is calculated (working days or non-working days).

Application of the Convention in practice. The Government indicates that several court rulings relating to individual and collective terminations have been handed down. However, they have not been transmitted to the Government for technical reasons and due to resources. The Committee once again requests the Government to provide examples of court rulings involving questions of principle related to the application of the Convention, and particularly on personal and economic reasons for termination, as set out in section 142 of the Labour Code. It also once again requests the Government to provide statistics on the activities of the labour inspection services and the labour courts in relation to terminations, including the number, duration and outcome of appeals, the level of compensation for termination, and examples of situations examined by the labour inspection services in relation to collective dismissals.

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

Article 2(4) of the Convention. Exclusions. In its previous comments, the Committee invited the Government to provide information on the effective means of protection against unjustified termination envisaged for categories of workers excluded from the scope of the Labour Code of 2009. The Committee notes the Government’s indication that no categories of workers have been excluded from the application of the Convention. The Committee therefore reiterates its request to the Government to provide information with its next report on the situation of magistrates, public servants and members of the armed forces, as categories of workers who are excluded from the application of the Labour Code of 2009, and on the manner in which the Government ensures that they are afforded protection against unjustified termination which is at least equivalent to that set out in the Convention.

Article 5. Unjustified reasons for termination. The Government indicates that, under the terms of section 152 of the Labour Code of 2009, terminations without a valid reason and terminations for reasons of the opinions of the worker, the worker’s trade union activity, membership or not of a specific union, are considered abusive. The Committee notes that the lodging of a complaint by a worker or participation in proceedings against an employer arising out of alleged violations of the legislation or the lodging of a complaint with the competent administrative authorities is also considered to be an unjustified reason for termination. The Government adds that terminations on the basis of reasons which are not real and justified are null and void. The Committee reiterates its request to the Government to indicate the measures adopted or envisaged to ensure that the other reasons set out in clauses (d) and (e) of Article 5, including marital status and the family responsibilities of the worker, do not constitute valid reasons for termination. The Committee once again requests the Government to provide examples of court rulings relating to unjustified reasons for termination, as set out in the Labour Code of 2009.

Article 7. Procedure prior to termination. The Committee refers once again to Article 7 of the Convention, which provides that workers shall have an opportunity to defend themselves against the allegations made before being terminated for reasons relating to their conduct or performance. The Committee previously noted that the Labour Code of 2009 does not appear to envisage a procedure of this nature prior to or at the time of termination. The Committee once again requests the Government to indicate the manner in which national law or practice gives effect to this Article.

Article 8(3). Right of appeal to an impartial body. The Government reiterates in its report that the competent jurisdiction to examine appeals against terminations is either the regional labour inspectorate or the labour tribunal. The Government adds that, in the event of collective terminations authorized by a labour inspector, the worker or trade union concerned has a period of 30 days to lodge an appeal to the next hierarchical authority prior to the initiation of an adversarial appeal. The Committee once again requests the Government to indicate the manner in which national law or practice gives effect to Article 8(3), particularly the manner in which the right to appeal to an impartial body is guaranteed. In its previous comments, the Committee requested the Government to indicate whether, in accordance with Article 8(3), national law or practice provides for a reasonable period of time after which a worker may be deemed to have waived the right to appeal against termination.

Article 9(2). Burden of proof. The Committee reiterates its request to the Government to indicate the manner in which the regulations and procedure ensure that the worker does not have to bear alone the burden of proof in the event of an individual or collective appeal against termination.

Article 11. Period of notice. The Government reiterates that, except in cases of serious misconduct, in the context of termination, workers are entitled to a period of notice, the duration of which varies depending on the professional category (from eight days for a manual labourer or guard to three months for a managerial level employee). The Government adds that, in the event that the employer is dispensed with the obligation to give a period of notice, this obligation takes the form of the payment of compensation. The Committee once again requests the Government to provide examples of court rulings illustrating the concept of serious misconduct.

Article 13(1). Information and consultation of workers’ representatives. The Government indicates that, under the terms of section 143 of the Labour Code of 2009, any employer envisaging a termination for economic reasons is required to convene the staff delegates, the members of the enterprise committee and trade union delegates with a view to exploring other possibilities with them, in the presence of the labour inspector. The Government adds that, when the matter is raised with the labour inspector in accordance with administrative practice, the inspector has a period of 15 days to respond. The Committee once again requests the Government to indicate the period of time before the envisaged termination that the relevant information has to be provided by the employer to the workers’ representatives when termination is contemplated, as required by the Convention, and to indicate the manner in which this period is calculated (working days or non-working days).

Application of the Convention in practice. The Government indicates that several court rulings relating to individual and collective terminations have been handed down. However, they have not been transmitted to the Government for technical reasons and due to resources. The Committee once again requests the Government to provide examples of court rulings involving questions of principle related to the application of the Convention, and particularly on personal and economic reasons for termination, as set out in section 142 of the Labour Code. It also once again requests the Government to provide statistics on the activities of the labour inspection services and the labour courts in relation to terminations, including the number, duration and outcome of appeals, the level of compensation for termination, and examples of situations examined by the labour inspection services in relation to collective dismissals.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee refers to its observation and requests the Government to include in its next report information on the following matters.

Article 2(4) of the Convention. Exclusions. The Committee invites the Government to provide information in its next report on the effective means of protection against unjustified termination which are envisaged for magistrates, public servants and members of the army, categories excluded from the scope of the Labour Code of 2009.

Unjustified reasons for termination. The Committee notes that, in accordance with section 9 of the Labour Code of 2009, workers may not be penalized or suffer prejudice for their political, trade union or religious opinions. Furthermore, section 10 provides that the law shall ensure that everyone, without any discrimination, has equality of opportunity and treatment in employment and work. The Committee invites the Government to indicate in its next report the measures adopted to ensure that the other reasons indicated in clause (d) of Article 5 of the Convention, such as marital status and the family responsibilities of the worker, do not constitute valid reasons for termination. It invites the Government to include examples of the decisions of courts of law relating to the invalid reasons for termination set out in the Labour Code.

Procedure prior to termination. The Committee refers once again to Article 7 of the Convention, which provides that workers shall have an opportunity to defend themselves against the allegations made before being terminated for reasons relating to their conduct or performance. It notes that the Labour Code of 2009 does not appear to have envisaged a procedure of this nature prior to or at the time of termination. It once again requests the Government to indicate the manner in which national practice gives effect to this Article.

Right to appeal to an impartial body. The Committee notes that section 152 of the Labour Code envisages appeals against termination being filed with the labour inspector or the labour court. The Government indicates that the concerned worker or trade union has a period of 30 days to file an appeal to a higher authority against a decision by the labour inspection services concerning collective redundancies. The Committee requests the Government to indicate whether national law or practice provides for a reasonable period of time after which a worker may be deemed to have waived the right to appeal against termination (Article 8(3)).

Article 9(2). Burden of proof. The Committee notes that section 152 of the Labour Code of 2009 requires the courts to determine the causes and circumstances of termination. The Committee requests the Government to describe in its next report the manner in which regulations and procedure ensure that the worker does not have to bear alone the burden of proving that the termination was not justified.

Article 11. Period of notice. The Government indicates in its report that, except in cases of serious misconduct, in the context of termination, workers are entitled to a period of notice, the duration of which depends on the professional category (section 148 of the Labour Code). The Committee invites the Government to provide examples of decisions of courts of law illustrating the concept of serious misconduct.

Article 13(1). Information and consultation of workers’ representatives. The Committee invites the Government to indicate in its next report the period of time before the envisaged terminations that the relevant information has to be provided by an employer to the workers’ representatives.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Progress in the application of the Convention. In its 2008 direct request, the Committee expressed the hope that, when preparing new labour legislation, the Government would take into account its comments with a view to reinforcing the application of the Convention. The Committee notes the replies provided by the Government in June 2011 and welcomes the fact that, in January 2009, when adopting a new Labour Code, the terms of the Convention were reflected more precisely in defining the termination of the employment contract at the initiative of the employer, justification for termination and the payment of compensation (Articles 3, 4 and 10 of the Convention). The Committee also notes with satisfaction that under section 152 of the Labour Code of 2009 the dismissal of a worker for filing a complaint or participating in proceedings against an employer involving alleged violations of laws or regulations, or for having recourse to the competent administrative authorities (Article 5(c)) is invalid. Section 143 of the Labour Code of 2009, by providing that an employer who envisages termination for economic reasons shall, to avert or minimize termination, meet the representatives of the personnel and, in the presence of the labour inspector, and explore “all other possibilities, such as: work by rotation, part-time work, temporary lay-offs, the readjustment of bonuses, compensation and other benefits”, is in line with the approach envisaged in Paragraph 21 of the Termination of Employment Recommendation, 1982 (No. 166). The Committee invites the Government to provide in its next report examples of decisions by courts of law relating to individual or economic reasons for termination, as set out in section 142 of the Labour Code (Article 4). It invites the Government to include in its next report statistics on the activities of the labour inspectorate and the courts in relation to termination of employment, the number, duration and outcome of appeals, the level of compensation for termination (Articles 10 and 11), and examples of situations examined by the labour inspection services in relation to collective dismissals (Articles 13 and 14).

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. The Committee takes note of the Government’s first report on the application of the Convention received in June 2008. The Government refers to the Labour Code of 2 June 1961 and Ordinance No. 73/093 of 9 November 1973, establishing the procedures for reducing staff of state and semi-state bodies and private enterprises in the Central African Republic, giving effect to certain provisions of the Convention. Furthermore, the Government points out that judicial decisions have been handed down with respect to individual and collective terminations, but that there would be material difficulties in obtaining copies of these. It also points out that a new Labour Code had been submitted to the National Assembly. The Committee hopes that the questions raised in this direct request will be taken into account in the drafting of the new labour legislation, in order to ensure full application of the provisions of the Convention concerning invalid reasons for terminations (Article 5(c) and (d) of the Convention), the procedure to follow prior to termination (Article 7 of the Convention), the burden of proof (Article 9(2) of the Convention), the severance allowance (Article 12 of the Convention) and the information provided to workers’ representatives in the case of collective terminations (Article 13 of the Convention). It also hopes that the Government will be able to provide, in its next report, the required information on justification for termination (Article 4 of the Convention), compensation for termination (Article 10 of the Convention), definition of serious misconduct (Article 11 of the Convention) and collective terminations (Article 14 of the Convention), thereby allowing it to examine the manner in which the Convention is applied in practice. If necessary, the Government may wish to call upon the ILO to help it in the communication of collective agreements and relevant judicial decisions.

2. Exclusions of certain categories of workers. The Government points out that no category of workers is excluded from the scope of the Convention. However, the Committee notes that section 3 of the Labour Code excludes from its scope judges, public officials and soldiers. The Committee invites the Government to confirm whether the categories listed in section 3 of the Labour Code have been excluded from the scope of the Convention under Article 2(4) or (5) and to give reasons for that exclusion in accordance with Article 2(6).

3. Justification for termination. Article 4 of the Convention. According to the information provided in the Government’s report, all collective agreements in force acknowledge that a worker may not be dismissed without a “legally valid” reason. Furthermore, section 47 of the Labour Code guarantees protection against “dismissals carried out without legitimate reasons” being considered as “wrongful”. The Committee invites the Government to provide examples of collective agreements and court rulings creating a precedent in this area, in its next report.

4. Ban on terminations. Measures of reprisals. Article 5(c). In its report, the Government mentions that the draft Labour Code lists, among the invalid reasons for termination, the fact of having filed a complaint or participated in proceedings against an employer. The Committee hopes that the Government will take measures to ensure that the fact of having filed a complaint or participated in proceedings against an employer involving alleged violations of the legislation, or having had recourse to competent administrative authorities, do not constitute a valid reason for termination.

5. Invalid reasons for termination. Grounds of discrimination. The Government points out in its report that the draft Labour Code lists race, colour, sex and marital status as invalid grounds for termination of employment. The Committee refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and hopes that the Government will take measures to ensure that the worker’s family responsibilities, pregnancy religion, political opinion, national extraction or social origin do not constitute valid reasons for termination as stipulated under Article 5(d) of Convention No. 158.

6. Procedure prior to termination. The Committee refers to Article 7 of the Convention which provides that workers should have the opportunity to defend themselves against allegations made before being dismissed for reasons related to their conduct or performance unless the employer cannot reasonably be expected to provide this opportunity. The Government fails to comment on the requirements imposed by Article 7 in its report. The Committee notes that the 1961 Code does not appear to provide employees with the opportunity to defend themselves. The Committee requests the Government to inform on the existence of any measures giving effect to Article 7 of the Convention and if, there are no such measures, to inform on the steps taken to implement Article 7.

7. Entitlement to appeal to an impartial body. Time limit. The Committee notes that section 190 of the Labour Code provides for appeals against termination, after attempts at a friendly agreement have failed before the Labour Court. In accordance with section 1 of Ordinance No. 73/093, all employers are obliged to receive authorization from the labour inspector before any collective redundancies to cut jobs or reduce activity, or for any other reason resulting in a collective lay-off of workers. The Government’s report states that, if the labour inspector gives authorization for redundancies, the worker or trade union organization concerned has 30 days to appeal against this decision before bringing the matter to court. The Government is requested to provide examples of judicial decisions authorizing collective terminations against which an appeal has been lodged before a court (Article 8(2) of the Convention).

8. Article 9(2). Burden of proof. The Committee notes that section 47 of the Labour Code requires the courts to determine the causes and circumstances of the termination and requires the alleged grounds for dismissal to be specifically mentioned in the ruling. The Labour Code does not appear to address the requirements of Article 9(2) of the Convention, namely that the workers do not have to bear alone the burden of proving that the termination was not justified. The Committee requests the Government to inform it of any measures giving effect to Article 9(2) of the Convention and, if there are no such measures, to inform on any measures taken to implement this provision of the Convention.

9. Article 10. Compensation. The Committee notes that, in accordance with section 47 of the Labour Code, the worker may be awarded damages in the event of unjustified termination. The Committee invites the Government to provide copies of the rulings on how the courts have assessed the adequacy of the compensation.

10. Article 11. Period of notice. The Committee notes that, according to section 45 of the Labour Code, a worker may be dismissed without a period of notice in the event of serious misconduct. The Government is requested to provide examples of any ruling that defines “serious misconduct” in this context.

11. Article 12(1)(a). Severance allowance. According to the Government’s report, any dismissed worker is entitled, except in the case of serious misconduct, to a severance allowance referred to as a “dismissals allowance”. It is calculated according to the applicable collective agreement. The Committee invites the Government to indicate how it guarantees the application of this Article to workers who are not covered by collective agreements. It asks it to provide copies of collective agreements in force that regulate the payment of severance allowances, as well as examples of court decisions that applied the notion of serious misconduct in this context.

12. Article 13(1). Information and consultation of workers’ representatives. The Committee refers to Article 13(1) of the Convention which provides that, if terminations are envisaged for reasons of an economic, technological, structural or similar nature, the employer must provide in good time the relevant information to the workers’ representatives who must be consulted as early as possible before the planned date of termination. The Government is requested to indicate the measures taken to guarantee that consultations take place between the employer contemplating terminations for reasons of an economic, technological or structural nature and the representatives of workers concerned by this measure, specifying in particular how much time before the planned terminations they must provide the relevant information to the workers.

13. Article 14(1). Notification to the competent authority. The Government refers in its report to the provisions of Ordinance No. 73/093 of 9 November 1973, which provide that the employer, contemplating collective redundancies to cut jobs or reduce activity or for any other reason resulting in a collective lay-off of workers, must notify the competent authority. The Government is invited to provide examples of terminations for reasons of an economic, technological or structural nature, which did in fact receive prior authorization from the labour inspector and on what basis the labour inspector exercises a discretion.

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

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its 2008 direct request, which read as follows:

1. The Committee takes note of the Government’s first report on the application of the Convention received in June 2008. The Government refers to the Labour Code of 2 June 1961 and Ordinance No. 73/093 of 9 November 1973, establishing the procedures for reducing staff of state and semi-state bodies and private enterprises in the Central African Republic, giving effect to certain provisions of the Convention. Furthermore, the Government points out that judicial decisions have been handed down with respect to individual and collective terminations, but that there would be material difficulties in obtaining copies of these. It also points out that a new Labour Code had been submitted to the National Assembly. The Committee hopes that the questions raised in this direct request will be taken into account in the drafting of the new labour legislation, in order to ensure full application of the provisions of the Convention concerning invalid reasons for terminations (Article 5(c) and (d) of the Convention), the procedure to follow prior to termination (Article 7 of the Convention), the burden of proof (Article 9, paragraph 2, of the Convention), the severance allowance (Article 12 of the Convention) and the information provided to workers’ representatives in the case of collective terminations (Article 13 of the Convention). It also hopes that the Government will be able to provide, in its next report, the required information on justification for termination (Article 4 of the Convention), compensation for termination (Article 10 of the Convention), definition of serious misconduct (Article 11 of the Convention) and collective terminations (Article 14 of the Convention), thereby allowing it to examine the manner in which the Convention is applied in practice. If necessary, the Government may wish to call upon the ILO to help it in the communication of collective agreements and relevant judicial decisions.

2. Exclusions of certain categories of workers. The Government points out that no category of workers is excluded from the scope of the Convention. However, the Committee notes that section 3 of the Labour Code excludes from its scope judges, public officials and soldiers. The Committee invites the Government to confirm whether the categories listed in section 3 of the Labour Code have been excluded from the scope of the Convention under Article 2, paragraph 4 or 5, and to give reasons for that exclusion in accordance with Article 2, paragraph 6.

3. Justification for termination. Article 4 of the Convention. According to the information provided in the Government’s report, all collective agreements in force acknowledge that a worker may not be dismissed without a “legally valid” reason. Furthermore, section 47 of the Labour Code guarantees protection against “dismissals carried out without legitimate reasons” being considered as “wrongful”. The Committee invites the Government to provide examples of collective agreements and court rulings creating a precedent in this area, in its next report.

4. Ban on terminations. Measures of reprisals. Article 5(c). In its report, the Government mentions that the draft Labour Code lists, among the invalid reasons for termination, the fact of having filed a complaint or participated in proceedings against an employer. The Committee hopes that the Government will take measures to ensure that the fact of having filed a complaint or participated in proceedings against an employer involving alleged violations of the legislation, or having had recourse to competent administrative authorities, do not constitute a valid reason for termination.

5. Invalid reasons for termination. Grounds of discrimination. The Government points out in its report that the draft Labour Code lists race, colour, sex and marital status as invalid grounds for termination of employment. The Committee refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and hopes that the Government will take measures to ensure that the worker’s family responsibilities, pregnancy religion, political opinion, national extraction or social origin do not constitute valid reasons for termination as stipulated under Article 5(d) of Convention No. 158.

6. Procedure prior to termination. The Committee refers to Article 7 of the Convention which provides that workers should have the opportunity to defend themselves against allegations made before being dismissed for reasons related to their conduct or performance unless the employer cannot reasonably be expected to provide this opportunity. The Government fails to comment on the requirements imposed by Article 7 in its report. The Committee notes that the 1961 Code does not appear to provide employees with the opportunity to defend themselves. The Committee requests the Government to inform on the existence of any measures giving effect to Article 7 of the Convention and if, there are no such measures, to inform on the steps taken to implement Article 7.

7. Entitlement to appeal to an impartial body. Time limit. The Committee notes that section 190 of the Labour Code provides for appeals against termination, after attempts at a friendly agreement have failed before the Labour Court. In accordance with section 1 of Ordinance No. 73/093, all employers are obliged to receive authorization from the labour inspector before any collective redundancies to cut jobs or reduce activity, or for any other reason resulting in a collective lay-off of workers. The Government’s report states that, if the labour inspector gives authorization for redundancies, the worker or trade union organization concerned has 30 days to appeal against this decision before bringing the matter to court. The Government is requested to provide examples of judicial decisions authorizing collective terminations against which an appeal has been lodged before a court (Article 8, paragraph 2, of the Convention).

8. Article 9, paragraph 2. Burden of proof. The Committee notes that section 47 of the Labour Code requires the courts to determine the causes and circumstances of the termination and requires the alleged grounds for dismissal to be specifically mentioned in the ruling. The Labour Code does not appear to address the requirements of Article 9, paragraph 2, of the Convention, namely that the workers do not have to bear alone the burden of proving that the termination was not justified. The Committee requests the Government to inform it of any measures giving effect to Article 9, paragraph 2, of the Convention and, if there are no such measures, to inform on any measures taken to implement this provision of the Convention.

9. Article 10. Compensation. The Committee notes that, in accordance with section 47 of the Labour Code, the worker may be awarded damages in the event of unjustified termination. The Committee invites the Government to provide copies of the rulings on how the courts have assessed the adequacy of the compensation.

10. Article 11. Period of notice. The Committee notes that, according to section 45 of the Labour Code, a worker may be dismissed without a period of notice in the event of serious misconduct. The Government is requested to provide examples of any ruling that defines “serious misconduct” in this context.

11. Article 12, paragraph 1(a). Severance allowance. According to the Government’s report, any dismissed worker is entitled, except in the case of serious misconduct, to a severance allowance referred to as a “dismissals allowance”. It is calculated according to the applicable collective agreement. The Committee invites the Government to indicate how it guarantees the application of this Article to workers who are not covered by collective agreements. It asks it to provide copies of collective agreements in force that regulate the payment of severance allowances, as well as examples of court decisions that applied the notion of serious misconduct in this context.

12. Article 13, paragraph 1. Information and consultation of workers’ representatives. The Committee refers to Article 13, paragraph 1, of the Convention which provides that, if terminations are envisaged for reasons of an economic, technological, structural or similar nature, the employer must provide in good time the relevant information to the workers’ representatives who must be consulted as early as possible before the planned date of termination. The Government is requested to indicate the measures taken to guarantee that consultations take place between the employer contemplating terminations for reasons of an economic, technological or structural nature and the representatives of workers concerned by this measure, specifying in particular how much time before the planned terminations they must provide the relevant information to the workers.

13. Article 14, paragraph 1. Notification to the competent authority. The Government refers in its report to the provisions of Ordinance No. 73/093 of 9 November 1973, which provide that the employer, contemplating collective redundancies to cut jobs or reduce activity or for any other reason resulting in a collective lay-off of workers, must notify the competent authority. The Government is invited to provide examples of terminations for reasons of an economic, technological or structural nature, which did in fact receive prior authorization from the labour inspector and on what basis the labour inspector exercises a discretion.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

1. The Committee takes note of the Government’s first report on the application of the Convention received in June 2008. The Government refers to the Labour Code of 2 June 1961 and Ordinance No. 73/093 of 9 November 1973, establishing the procedures for reducing staff of state and semi-state bodies and private enterprises in the Central African Republic, giving effect to certain provisions of the Convention. Furthermore, the Government points out that judicial decisions have been handed down with respect to individual and collective terminations, but that there would be material difficulties in obtaining copies of these. It also points out that a new Labour Code had been submitted to the National Assembly. The Committee hopes that the questions raised in this direct request will be taken into account in the drafting of the new labour legislation, in order to ensure full application of the provisions of the Convention concerning invalid reasons for terminations (Article 5(c) and (d) of the Convention), the procedure to follow prior to termination (Article 7 of the Convention), the burden of proof (Article 9, paragraph 2, of the Convention), the severance allowance (Article 12 of the Convention) and the information provided to workers’ representatives in the case of collective terminations (Article 13 of the Convention). It also hopes that the Government will be able to provide, in its next report, the required information on justification for termination (Article 4 of the Convention), compensation for termination (Article 10 of the Convention), definition of serious misconduct (Article 11 of the Convention) and collective terminations (Article 14 of the Convention), thereby allowing it to examine the manner in which the Convention is applied in practice. If necessary, the Government may wish to call upon the ILO to help it in the communication of collective agreements and relevant judicial decisions.

2. Exclusions of certain categories of workers. The Government points out that no category of workers is excluded from the scope of the Convention. However, the Committee notes that section 3 of the Labour Code excludes from its scope judges, public officials and soldiers. The Committee invites the Government to confirm whether the categories listed in section 3 of the Labour Code have been excluded from the scope of the Convention under Article 2, paragraph 4 or 5, and to give reasons for that exclusion in accordance with Article 2, paragraph 6.

3. Justification for termination. Article 4 of the Convention. According to the information provided in the Government’s report, all collective agreements in force acknowledge that a worker may not be dismissed without a “legally valid” reason. Furthermore, section 47 of the Labour Code guarantees protection against “dismissals carried out without legitimate reasons” being considered as “wrongful”. The Committee invites the Government to provide examples of collective agreements and court rulings creating a precedent in this area, in its next report.

4. Ban on terminations. Measures of reprisals. Article 5(c). In its report, the Government mentions that the draft Labour Code lists, among the invalid reasons for termination, the fact of having filed a complaint or participated in proceedings against an employer. The Committee hopes that the Government will take measures to ensure that the fact of having filed a complaint or participated in proceedings against an employer involving alleged violations of the legislation, or having had recourse to competent administrative authorities, do not constitute a valid reason for termination.

5. Invalid reasons for termination. Grounds of discrimination. The Government points out in its report that the draft Labour Code lists race, colour, sex and marital status as invalid grounds for termination of employment. The Committee refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and hopes that the Government will take measures to ensure that the worker’s family responsibilities, pregnancy religion, political opinion, national extraction or social origin do not constitute valid reasons for termination as stipulated under Article 5(d) of Convention No. 158.

6. Procedure prior to termination. The Committee refers to Article 7 of the Convention which provides that workers should have the opportunity to defend themselves against allegations made before being dismissed for reasons related to their conduct or performance unless the employer cannot reasonably be expected to provide this opportunity. The Government fails to comment on the requirements imposed by Article 7 in its report. The Committee notes that the 1961 Code does not appear to provide employees with the opportunity to defend themselves. The Committee requests the Government to inform on the existence of any measures giving effect to Article 7 of the Convention and if, there are no such measures, to inform on the steps taken to implement Article 7.

7. Entitlement to appeal to an impartial body. Time limit. The Committee notes that section 190 of the Labour Code provides for appeals against termination, after attempts at a friendly agreement have failed before the Labour Court. In accordance with section 1 of Ordinance No. 73/093, all employers are obliged to receive authorization from the labour inspector before any collective redundancies to cut jobs or reduce activity, or for any other reason resulting in a collective lay-off of workers. The Government’s report states that, if the labour inspector gives authorization for redundancies, the worker or trade union organization concerned has 30 days to appeal against this decision before bringing the matter to court. The Government is requested to provide examples of judicial decisions authorizing collective terminations against which an appeal has been lodged before a court (Article 8, paragraph 2, of the Convention).

8. Article 9, paragraph 2. Burden of proof. The Committee notes that section 47 of the Labour Code requires the courts to determine the causes and circumstances of the termination and requires the alleged grounds for dismissal to be specifically mentioned in the ruling. The Labour Code does not appear to address the requirements of Article 9, paragraph 2, of the Convention, namely that the workers do not have to bear alone the burden of proving that the termination was not justified. The Committee requests the Government to inform it of any measures giving effect to Article 9, paragraph 2, of the Convention and, if there are no such measures, to inform on any measures taken to implement this provision of the Convention.

9. Article 10. Compensation. The Committee notes that, in accordance with section 47 of the Labour Code, the worker may be awarded damages in the event of unjustified termination. The Committee invites the Government to provide copies of the rulings on how the courts have assessed the adequacy of the compensation.

10. Article 11. Period of notice. The Committee notes that, according to section 45 of the Labour Code, a worker may be dismissed without a period of notice in the event of serious misconduct. The Government is requested to provide examples of any ruling that defines “serious misconduct” in this context.

11. Article 12, paragraph 1(a). Severance allowance. According to the Government’s report, any dismissed worker is entitled, except in the case of serious misconduct, to a severance allowance referred to as a “dismissals allowance”. It is calculated according to the applicable collective agreement. The Committee invites the Government to indicate how it guarantees the application of this Article to workers who are not covered by collective agreements. It asks it to provide copies of collective agreements in force that regulate the payment of severance allowances, as well as examples of court decisions that applied the notion of serious misconduct in this context.

12. Article 13, paragraph 1. Information and consultation of workers’ representatives. The Committee refers to Article 13, paragraph 1, of the Convention which provides that, if terminations are envisaged for reasons of an economic, technological, structural or similar nature, the employer must provide in good time the relevant information to the workers’ representatives who must be consulted as early as possible before the planned date of termination. The Government is requested to indicate the measures taken to guarantee that consultations take place between the employer contemplating terminations for reasons of an economic, technological or structural nature and the representatives of workers concerned by this measure, specifying in particular how much time before the planned terminations they must provide the relevant information to the workers.

13. Article 14, paragraph 1. Notification to the competent authority. The Government refers in its report to the provisions of Ordinance No. 73/093 of 9 November 1973, which provide that the employer, contemplating collective redundancies to cut jobs or reduce activity or for any other reason resulting in a collective lay-off of workers, must notify the competent authority. The Government is invited to provide examples of terminations for reasons of an economic, technological or structural nature, which did in fact receive prior authorization from the labour inspector and on what basis the labour inspector exercises a discretion.

[The Government is asked to reply in detail to the present comments in 2009.]