Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

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

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).