Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

Convention (n° 158) sur le licenciement, 1982 - Luxembourg (Ratification: 2001)

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notes, however, that the Act of 31 July 2006 introducing the Labour Code came into effect on 1 September 2006 and repealed the Act of 24 May 1989.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.]