R119 - Termination of Employment Recommendation, 1963 (No. 119)

I. Methods of Implementation

1. 1. Effect may be given to this Recommendation through national laws or regulations, collective agreements, works rules, arbitration awards, or court decisions or in such other manner consistent with national practice as may be appropriate under national conditions.

II. Standards of General Application

1. 2.
   • (1) Termination of employment should not take place 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, establishment or service.
   • (2) The definition or interpretation of such valid reason should be left to the methods of implementation set out in Paragraph 1.
2. 3. The following, inter alia, should not constitute valid reasons for termination of employment:
   • (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
   • (b) seeking office as, or acting or having acted in the capacity of, a workers' representative;
   • (c) the filing in good faith of a complaint or the participation in a proceeding against an employer involving alleged violation of laws or regulations; or
   • (d) race, colour, sex, marital status, religion, political opinion, national extraction or social origin.
3. 4. A worker who feels that his employment has been unjustifiably terminated should be entitled, unless the matter has been satisfactorily determined through such procedures within the undertaking, establishment or service, as may exist or be established consistent with this Recommendation, to appeal, within a reasonable time, against that termination with the assistance, where the worker so requests, of a person representing him to a body established under a collective agreement or to a neutral body such as a court, an arbitrator, an arbitration committee or a similar body.
4. 5.
   • (1) The bodies referred to in Paragraph 4 should be empowered to examine the reasons given for the termination of employment and the other circumstances relating to the case and to render a decision on the justification of the termination.
   • (2) Subparagraph (1) should not be construed as implying that the neutral body should be empowered to intervene in the determination of the size of the work force of the undertaking, establishment or service.
5. 6. The bodies referred to in Paragraph 4 should be empowered, if they find that the termination of employment was unjustified, to order that the worker concerned, unless reinstated, where appropriate with payment of unpaid wages, should be paid adequate compensation, or afforded such other relief as may be determined under the methods of implementation set out in Paragraph 1, or granted such compensation and other relief as may be so determined.
6. 7.
   • (1) A worker whose employment is to be terminated should be entitled to a reasonable period of notice of compensation in lieu thereof.
   • (2) During the period of notice the worker should, as far as practicable, be entitled to a reasonable amount of time off without loss in pay in order to seek other employment.
7. 8.
   • (1) The worker whose employment has been terminated should be entitled to receive, on request, at the time of the termination, a certificate from the employer specifying the dates of his engagement and termination and the type or types of work on which he was employed.
   • (2) Nothing unfavourable to the worker should be inserted in such certificate.
8. 9. Some form of income protection should be provided for workers whose employment has been terminated; such protection may include unemployment insurance or other forms of social security, or severance allowance or other types of separation benefits paid for by the employer, or a combination of benefits, depending upon national laws or regulations, collective agreements and the personnel policy of the employer.
9. 10. The question whether employers should consult with workers' representatives before a final decision is taken on individual cases of termination of employment should be left to the methods of implementation set out in Paragraph 1.
10. 11.
    • (1) In case of dismissal for serious misconduct, a period of notice or compensation in lieu thereof need not be required, and the severance allowance or other types of separation benefits paid for by the employer, where applicable, may be withheld.
    • (2) Dismissal for serious misconduct should take place only in cases where the employer cannot in good faith be expected to take any other course.
    • (3) An employer should be deemed to have waived his right to dismiss for serious misconduct if such action has not been taken within a reasonable time after he has become aware of the serious misconduct.
    • (4) A worker should be deemed to have waived his right to appeal against dismissal for serious misconduct if he has not appealed within a reasonable time after he has been notified of the dismissal.
    • (5) Before a decision to dismiss a worker for serious misconduct becomes finally effective, the worker should be given an opportunity to state his case promptly, with the assistance where appropriate of a person representing him.
    • (6) In the implementation of this Paragraph the definition or interpretation of "serious misconduct" as well as the determination of "reasonabletime" should be left to the methods of implementation set out in Paragraph 1.

III. Supplementary Provisions concerning Reduction of the Work Force

1. 12. Positive steps should be taken by all parties concerned to avert or minimise as far as possible reductions of the work force by the adoption of appropriate measures, without prejudice to the efficient operation of the undertaking, establishment or service.
2. 13.
   • (1) When a reduction of the work force is contemplated, consultation with workers' representatives should take place as early as possible on all appropriate questions.
   • (2) The questions on which consultation should take place might include measures to avoid the reduction of the work force, restriction of overtime, training and retraining, transfers between departments, spreading termination of employment over a certain period, measures for minimising the effects of the reduction on the workers concerned, and the selection of workers to be affected by the reduction.
   • (3) As and when consultation takes place, both parties should bear in mind that there may be public authorities which might assist the parties in such consultation.
3. 14. If a proposed reduction of the work force is on such a scale as to have a significant bearing on the manpower situation of a given area or branch of economic activity, the employer should notify the competent public authorities in advance of any such reduction.
4. 15.
   • (1) The selection of workers to be affected by a reduction of the work force should be made according to precise criteria, which it is desirable should be established wherever possible in advance, and which give due weight both to the interests of the undertaking, establishment or service and to the interests of the workers.
   • (2) These criteria may include--
     • (a) need for the efficient operation of the undertaking, establishment or service;
     • (b) ability, experience, skill and occupational qualifications of individual workers;
     • (c) length of service;
     • (d) age;
     • (e) family situation; or
     • (f) such other criteria as may be appropriate under national conditions, the order and relative weight of the above criteria being left to national customs and practice.
5. 16.
   • (1) Workers whose employment has been terminated owing to a reduction of the work force should be given priority of re-engagement, to the extent possible, by the employer when he again engages workers.
   • (2) Such priority of re-engagement may be limited to a specified period of time; where appropriate, the question of the retention of seniority rights should be determined in accordance with national laws or regulations, collective agreements or other appropriate national practices.
   • (3) Re-engagement should be effected on the basis of the principles set out in Paragraph 15.
   • (4) The rate of wages of re-engaged workers should not be adversely affected as a result of the interruption of their employment, regard being had to differences between their previous occupation and the occupation in which they are re-engaged and to any intervening changes in the structure of wages in the undertaking, establishment or service.
6. 17. There should be full utilisation of national employment agencies or other appropriate agencies to ensure, to the extent possible, that workers whose employment has been terminated as a result of a reduction of the work force are placed in alternative employment without delay.

IV. Scope

1. 18. This Recommendation applies to all branches of economic activity and all categories of workers: Provided that the following may be excluded from its scope:
   • (a) workers engaged for a specified period of time or a specified task in cases in which, owing to the nature of the work to be effected, the employment relationship cannot be of indeterminate duration;
   • (b) workers serving a period of probation determined in advance and of reasonable duration;
   • (c) workers engaged on a casual basis for a short period; and
   • (d) public servants engaged in the administration of the State to the extent only that constitutional provisions preclude the application to them of one or more provisions of this Recommendation.
2. 19. In accordance with the principle set forth in article 19, paragraph 8, of the Constitution of the International Labour Organisation, this Recommendation does not affect any provisions more favourable to the workers concerned than those contained herein.
3. 20. This Recommendation should be considered as having been implemented in respect of workers whose conditions of employment are governed by special laws or regulations where those laws or regulations provide for such workers conditions which, in their entirely, are at least as favourable as the totality of those provided in this Recommendation.