09/10/12 Conv ention C158 - Termination of Employ ment Conv ention, 1982 (No.

158)

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C158 - Termination of Employment Convention, 1982 (No. 158)

Convention concerning Termination of Employment at the Initiative of the Employer (Entry into force: 23 Nov 1985)
Adoption: Geneva, 68th ILC session (22 Jun 1982) - Status: No conclusions (Technical Convention).
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Preamble
The General Conference of the International Labour Organisation, Hav ing been conv ened at Genev a by the Gov erning Body of the International Labour Office, and hav ing m et in its Sixty -eighth Session on 2 June 1 9 82 , and Noting the existing international standards contained in the Term ination of Em ploy m ent Recom m endation, 1 9 6 3 , and Noting that since the adoption of the Term ination of Em ploy m ent Recom m endation, 1 9 6 3 , significant dev elopm ents hav e occurred in the law and practice of m any m em ber States on the questions cov ered by that Recom m endation, and Considering that these dev elopm ents hav e m ade it appropriate to adopt new international standards on the subject, particularly hav ing regard to the serious problem s in this field resulting from the econom ic difficulties and technological changes experienced in recent y ears in m any countries, Hav ing decided upon the adoption of certain proposals with regard to term ination of em ploy m ent at the initiativ e of the em ploy er, which is the fifth item on the agenda of the session, and Hav ing determ ined that these proposals shall take the form of an international Conv ention; adopts this twenty -second day of June of the y ear one thousand nine hundred and eighty -two the following Conv ention, which m ay be cited as the Term ination of Em ploy m ent Conv ention, 1 9 82 :

PART I. METHODS OF IMPLEMENTATION, SCOPE AND DEFINITIONS

Article 1
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The prov isions of this Conv ention shall, in so far as they are not otherwise m ade effectiv e by m eans of collectiv e agreem ents, arbitration awards or court decisions or in such other m anner as m ay be consistent with national practice, be giv en effect by laws or regulations.

Article 2
1 . This Conv ention applies to all branches of econom ic activ ity and to all em ploy ed persons. 2 . A Mem ber m ay exclude the following categories of em ploy ed persons from all or som e of the prov isions of this Conv ention: (a) workers engaged under a contract of em ploy m ent for a specified period of tim e or a specified task; (b) workers serv ing a period of probation or a qualify ing period of em ploy m ent, determ ined in adv ance and of reasonable duration; (c) workers engaged on a casual basis for a short period. 3 . Adequate safeguards shall be prov ided against recourse to contracts of em ploy m ent for a specified period of tim e the aim of which is to av oid the protection resulting from this Conv ention. 4 . In so far as necessary , m easures m ay be taken by the com petent authority or through the appropriate m achinery in a country , after consultation with the organisations of em ploy ers and workers concerned, where such exist, to exclude from the application of this Conv ention or certain prov isions thereof categories of em ploy ed persons whose term s and conditions of em ploy m ent are gov erned by special arrangem ents which as a whole prov ide protection that is at least equiv alent to the protection afforded under the Conv ention. 5. In so far as necessary , m easures m ay be taken by the com petent authority or through the appropriate m achinery in a country , after consultation with the organisations of em ploy ers and workers concerned, where such exist, to exclude from the application of this Conv ention or certain prov isions thereof other lim ited categories of em ploy ed persons in respect of which special problem s of a substantial nature arise in the light of the particular conditions of em ploy m ent of the workers concerned or the size or nature of the undertaking that em ploy s them . 6 . Each Mem ber which ratifies this Conv ention shall list in the first report on the application of the Conv ention subm itted under Article 2 2 of the Constitution of the International Labour Organisation any categories which m ay hav e been excluded in pursuance of paragraphs 4 and 5 of this Article, giv ing the reasons for such exclusion, and shall state in subsequent reports the position of its law and practice regarding the categories excluded, and the extent to which effect has been giv en or is proposed to be giv en to the Conv ention in respect of such categories.

Article 3
For the purpose of this Conv ention the term s termination and termination of employment m ean term ination of em ploy m ent at the initiativ e of the em ploy er.

PART II. STANDARDS OF GENERAL APPLICATION

DIVISION A. JUST IFICAT ION FOR T ERMINAT ION Article 4
The em ploy m ent of a worker shall not be term inated unless there is a v alid reason for such term ination connected with the capacity or conduct of the worker or based on the operational requirem ents of the undertaking, establishm ent or serv ice.

Article 5
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Conv ention C158 - Termination of Employ ment Conv ention, 1982 (No. 158)

The following, inter alia, shall not constitute v alid reasons for term ination: (a) union m em bership or participation in union activ ities outside working hours or, with the consent of the em ploy er, within working hours; (b) seeking office as, or acting or hav ing acted in the capacity of, a workers' representativ e; (c) the filing of a com plaint or the participation in proceedings against an em ploy er inv olv ing alleged v iolation of laws or regulations or recourse to com petent adm inistrativ e authorities; (d) race, colour, sex, m arital status, fam ily responsibilities, pregnancy , religion, political opinion, national extraction or social origin; (e) absence from work during m aternity leav e.

Article 6
1 . Tem porary absence from work because of illness or injury shall not constitute a v alid reason for term ination. 2 . The definition of what constitutes tem porary absence from work, the extent to which m edical certification shall be required and possible lim itations to the application of paragraph 1 of this Article shall be determ ined in accordance with the m ethods of im plem entation referred to in Article 1 of this Conv ention.

DIVISION B. PROCEDURE PRIOR T O OR AT T HE T IME OF T ERMINAT ION Article 7

The em ploy m ent of a worker shall not be term inated for reasons related to the worker's conduct or perform ance before he is prov ided an opportunity to defend him self against the allegations m ade, unless the em ploy er cannot reasonably be expected to prov ide this opportunity .

DIVISION C. PROCEDURE OF APPEAL AGAINST T ERMINAT ION Article 8

1 . A worker who considers that his em ploy m ent has been unjustifiably term inated shall be entitled to appeal against that term ination to an im partial body , such as a court, labour tribunal, arbitration com m ittee or arbitrator. 2 . Where term ination has been authorised by a com petent authority the application of paragraph 1 of this Article m ay be v aried according to national law and practice. 3 . A worker m ay be deem ed to hav e waiv ed his right to appeal against the term ination of his em ploy m ent if he has not exercised that right within a reasonable period of tim e after term ination.

Article 9
1 . The bodies referred to in Article 8 of this Conv ention shall be em powered to exam ine the reasons giv en for the term ination and the other circum stances relating to the case and to render a decision on whether the term ination was justified. 2 . In order for the worker not to hav e to bear alone the burden of prov ing that the term ination was not justified, the m ethods of im plem entation referred to in Article 1 of this Conv ention shall prov ide for one or the other or both of the following possibilities: (a) the burden of prov ing the existence of a v alid reason for the term ination as defined in Article 4 of this Conv ention shall rest on the em ploy er; (b) the bodies referred to in Article 8 of this Conv ention shall be em powered to reach a conclusion on the reason
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for the term ination hav ing regard to the ev idence prov ided by the parties and according to procedures prov ided for by national law and practice. 3 . In cases of term ination stated to be for reasons based on the operational requirem ents of the undertaking, establishm ent or serv ice, the bodies referred to in Article 8 of this Conv ention shall be em powered to determ ine whether the term ination was indeed for these reasons, but the extent to which they shall also be em powered to decide whether these reasons are sufficient to justify that term ination shall be determ ined by the m ethods of im plem entation referred to in Article 1 of this Conv ention.

Article 10
If the bodies referred to in Article 8 of this Conv ention find that term ination is unjustified and if they are not em powered or do not find it practicable, in accordance with national law and practice, to declare the term ination inv alid and/or order or propose reinstatem ent of the worker, they shall be em powered to order pay m ent of adequate com pensation or such other relief as m ay be deem ed appropriate.

DIVISION D. PERIOD OF NOT ICE Article 11

A worker whose em ploy m ent is to be term inated shall be entitled to a reasonable period of notice or com pensation in lieu thereof, unless he is guilty of serious m isconduct, that is, m isconduct of such a nature that it would be unreasonable to require the em ploy er to continue his em ploy m ent during the notice period.

DIVISION E. SEVERANCE ALLOWANCE AND OT HER INCOME PROT ECT ION Article 12
1 . A worker whose em ploy m ent has been term inated shall be entitled, in accordance with national law and practice, to(a) a sev erance allowance or other separation benefits, the am ount of which shall be based inter alia on length of serv ice and the lev el of wages, and paid directly by the em ploy er or by a fund constituted by em ploy ers' contributions; or (b) benefits from unem ploy m ent insurance or assistance or other form s of social security , such as old-age or inv alidity benefits, under the norm al conditions to which such benefits are subject; or (c) a com bination of such allowance and benefits. 2 . A worker who does not fulfil the qualify ing conditions for unem ploy m ent insurance or assistance under a schem e of general scope need not be paid any allowance or benefit referred to in paragraph 1 , subparagraph (a), of this Article solely because he is not receiv ing an unem ploy m ent benefit under paragraph 1 , subparagraph (b). 3 . Prov ision m ay be m ade by the m ethods of im plem entation referred to in Article 1 of this Conv ention for loss of entitlem ent to the allowance or benefits referred to in paragraph 1 , subparagraph (a), of this Article in the ev ent of term ination for serious m isconduct.

PART III. SUPPLEMENTARY PROVISIONS CONCERNING TERMINATIONS OF EMPLOYMENT FOR ECONOMIC, TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS
DIVISION A. CONSULT AT ION OF WORKERS' REPRESENT AT IVES
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Article 13
1 . When the em ploy er contem plates term inations for reasons of an econom ic, technological, structural or sim ilar nature, the em ploy er shall: (a) prov ide the workers' representativ es concerned in good tim e with relev ant inform ation including the reasons for the term inations contem plated, the num ber and categories of workers likely to be affected and the period ov er which the term inations are intended to be carried out; (b) giv e, in accordance with national law and practice, the workers' representativ es concerned, as early as possible, an opportunity for consultation on m easures to be taken to av ert or to m inim ise the term inations and m easures to m itigate the adv erse effects of any term inations on the workers concerned such as finding alternativ e em ploy m ent. 2 . The applicability of paragraph 1 of this Article m ay be lim ited by the m ethods of im plem entation referred to in Article 1 of this Conv ention to cases in which the num ber of workers whose term ination of em ploy m ent is contem plated is at least a specified num ber or percentage of the workforce. 3 . For the purposes of this Article the term the workers' representatives concerned m eans the workers' representativ es recognised as such by national law or practice, in conform ity with the Workers' Representativ es Conv ention, 1 9 7 1 .

DIVISION B. NOT IFICAT ION T O T HE COMPET ENT AUT HORIT Y Article 14

1 . When the em ploy er contem plates term inations for reasons of an econom ic, technological, structural or sim ilar nature, he shall notify , in accordance with national law and practice, the com petent authority thereof as early as possible, giv ing relev ant inform ation, including a written statem ent of the reasons for the term inations, the num ber and categories of workers likely to be affected and the period ov er which the term inations are intended to be carried out. 2 . National laws or regulations m ay lim it the applicability of paragraph 1 of this Article to cases in which the num ber of workers whose term ination of em ploy m ent is contem plated is at least a specified num ber or percentage of the workforce. 3 . The em ploy er shall notify the com petent authority of the term inations referred to in paragraph 1 of this Article a m inim um period of tim e before carry ing out the term inations, such period to be specified by national laws or regulations.

PART IV. FINAL PROVISIONS

Article 15
The form al ratifications of this Conv ention shall be com m unicated to the Director-General of the International Labour Office for registration.

Article 16
1 . This Conv ention shall be binding only upon those Mem bers of the International Labour Organisation whose ratifications hav e been registered with the Director-General. 2 . It shall com e into force twelv e m onths after the date on which the ratifications of two Mem bers hav e been registered with the Director-General.
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3 . Thereafter, this Conv ention shall com e into force for any Mem ber twelv e m onths after the date on which its ratification has been registered.

Article 17
1 . A Mem ber which has ratified this Conv ention m ay denounce it after the expiration of ten y ears from the date on which the Conv ention first com es into force, by an act com m unicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one y ear after the date on which it is registered. 2 . Each Mem ber which has ratified this Conv ention and which does not, within the y ear following the expiration of the period of ten y ears m entioned in the preceding paragraph, exercise the right of denunciation prov ided for in this Article, will be bound for another period of ten y ears and, thereafter, m ay denounce this Conv ention at the expiration of each period of ten y ears under the term s prov ided for in this Article.

Article 18
1 . The Director-General of the International Labour Office shall notify all Mem bers of the International Labour Organisation of the registration of all ratifications and denunciations com m unicated to him by the Mem bers of the Organisation. 2 . When notify ing the Mem bers of the Organisation of the registration of the second ratification com m unicated to him , the Director-General shall draw the attention of the Mem bers of the Organisation to the date upon which the Conv ention will com e into force.

Article 19
The Director-General of the International Labour Office shall com m unicate to the Secretary -General of the United Nations for registration in accordance with article 1 02 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the prov isions of the preceding Articles.

Article 20
At such tim es as it m ay consider necessary the Gov erning Body of the International Labour Office shall present to the General Conference a report on the working of this Conv ention and shall exam ine the desirability of placing on the agenda of the Conference the question of its rev ision in whole or in part.

Article 21
1 . Should the Conference adopt a new Conv ention rev ising this Conv ention in whole or in part, then, unless the new Conv ention otherwise prov ides(a) the ratification by a Mem ber of the new rev ising Conv ention shall ipso jure inv olv e the im m ediate denunciation of this Conv ention, notwithstanding the prov isions of Article 1 7 abov e, if and when the new rev ising Conv ention shall hav e com e into force; (b) as from the date when the new rev ising Conv ention com es into force this Conv ention shall cease to be open to ratification by the Mem bers. 2 . This Conv ention shall in any case rem ain in force in its actual form and content for those Mem bers which hav e ratified it but hav e not ratified the rev ising Conv ention.

Article 22
The English and French v ersions of the text of this Conv ention are equally authoritativ e.
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See related
Conventions
C135 - Conventions: C135 - Workers' Representatives Convention, 1971 (No. 135)

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

Constitution
Constitution Article 22

See also
Ratifications by country Submissions to competent authorities by country

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