Are any categories of worker (for example, fixed-term workers or workers on family leave) entitled to specific protection, other than protection from discrimination or harassment, on the termination of employment?
Employment & Labour Law
Please see our response to question 11.
Under the Family and Medical Leave Act (FMLA) covered employees are entitled to up to 12 weeks of unpaid leave, and it is unlawful for an employer to terminate an employee for using or trying to use FMLA leave, opposing any practice made unlawful by the FMLA, or being involved in any proceeding under or related to the FMLA. Reasons for leave include: the birth of a child, adoption, to bond with child, to care for a spouse, child or parent, for one’s own qualifying serious health condition, and for qualifying exigencies related to the foreign deployment of a military spouse, child, or parent. In addition, many states have similar family leave measures.
Employees with fixed-term contracts generally have no specific protections upon termination except as agreed by the parties.
Yes, there are. Employees protected from dismissals are:
- Workers’ legal representatives.
- Workers who have requested or are currently benefiting from specific legal rights (such as child-care leave; or have requested legal reduction of working hours).
- Workers who are victims of domestic violence exercising the rights to reduction or reorganization of their working time, geographical mobility, or change of work center or suspension of labor relations.
- Workers after reinstatement at work at the end of the periods of contract suspension for adoption, fostering or paternity, provided that more than nine months have not elapsed from the date of birth, adoption or fostering of the child.
- The dismissal of employees who have already initiated proceedings against the Company, protected by the so-called indemnity guarantee. This guarantees that the exercise of an action at law, or of preparatory acts prior to such an action, does not carry damaging consequences for the claimant in his public or private relations. In the field of labor relations, the indemnity guarantee protects employees from reprisals relating in any way to the exercise of their legal rights.
A fixed term employment contract can only be terminated before the expiration date of the contract due to valid grounds or just causes explained in Question 1.
Turkish Labour Law provides for specific protections with regards to the termination of employment contracts in the cases of short term military service, temporary sickness and pregnancy and maternity:
- Employer cannot terminate the employment contract of the employee who is on short term military service as long as the absence period of such employee does not exceed 90 days in total.
- Temporary sickness cannot be considered as a valid ground on the termination of the employment contract.
- Employer is obliged to give female employees permission to leave for a total period of sixteen weeks, eight weeks before the confinement eight weeks after the confinement.
During such periods of absence, employment contracts shall be deemed as suspended and cannot be terminated based on the above grounds.
See answer to question 10.
Particularly the following categories of employees are also entitled to specific protection according to art. 336 and/or art. 336c of the Swiss Code of Obligations:
- Employees being partially or entirely prevented from working by illness or accident through no fault of their own (against any termination during specified periods depending on the years of service);
- Employees fulfilling non-voluntary legal obligations (against terminations for reason of their status);
- Members of an employees' organisation and employees carrying out trade union activities in a lawful manner (against terminations for reason of their status);
- Elected employee representatives on the staff council for the business or on a body linked to the business (against terminations for reason of their status respectively if the employer cannot prove just cause for terminating the employment); and
- Employees participating in an overseas aid project ordered by the competent federal
authority and with the employer's consent (against any termination during this participation).
Yes, (i) fixed-term employees, (ii) employees taking maternity leave and (iii) employees taking leave due to work-related injuries or illnesses are entitled to specific protection.
The dismissal of fixed-term employees during their term of employment requires a ‘compelling reason’ which is considered to be narrower than the ‘reasonable grounds’ required for the termination of employment of an indefinite term (please see reply to Question 1).
Employers are prohibited from dismissing an employee while on maternity leave and within 30 days after the end of such leave (Article 19, paragraph 1 of the Labour Standards Act).
Employers are prohibited from dismissing an employee while on leave due to a work-related injury or illness and within 30 day after the end of such leave, unless the employer pays compensation equivalent to the employee’s average salary for 1,200 days (Article 19, paragraph 1 of the Labour Standards Act).
In accordance with the LPA and the Labour Relation Act B.E.2518 (“LRA”), the following categories of employee are entitled to specific protection on the termination of employment:
- pregnant employees (Section 43 of the LPA);
- any employees, representatives of employees, committee or sub-committee members of a labour union or labour federation involved in a demand for an agreement relating to conditions of employment or an amendment of that agreement, during the period in which the demand had been submitted to the employer, unless in certain exceptional circumstances (for example, where the employee performs his duties dishonestly or intentionally commits a criminal act against the employer) (Section 31 of LRA); and
- an employee who is a member of an employee’s committee, unless the Labour Court permits (Section 52 of the LRA).
The Maternity Benefit Act, 1961 makes it unlawful for an employer to discharge or dismiss a woman who absents herself from work in accordance with the provisions thereof except on grounds of misconduct. The restriction applies on termination which is during or on account of the woman’s absence, or to issuance of notice of discharge or dismissal given on such a day that it expires during the woman’s absence.
Workmen category employees are also protected from dismissal during pendency of proceedings of an industrial dispute. Any dismissal can be effected only with the permission of the adjudicating authority.
In some cases our laws grant the dismissed employee the right to receive a special indemnity dismissal. This is the case of maternity, sickness and labour accidents dismissal, in which the employee is granted a higher dismissal indemnity.
In case the dismissal responds to the dismissed worker’s participation in the union or in union related activities, the employee is entitled to file a claim before Labour Courts requesting the nullity of the dismissal and payment of the salaries he did not perceive during the time between the dismissal and the effective reincorporation. The Court will ultimately decide if the worker must be reincorporated and paid said salaries.
The Labour Law does not expressly provide for protected classes of workers. However, the UAE Cabinet, following request by the Minister of Human Resources and Emiratisation, can impose any rules that may be more favourable to a national employee.
In addition, if an employee (of any nationality) suffers a partial disability, his employer must allow him to carry out another role if he is capable of doing so, and he wants to undertake that other role (and his employer must pay him the same as a non-disabled employee doing the same role). Furthermore, the Labour Law states that a woman must be paid the same as a man, if she is doing the same role.
Yes, some categories of employees cannot be dismissed unless he/she is at fault as stipulated by the LCL. Such special protection is given to employees who:
A. Are exposed to occupational hazards and have not undergone the necessary occupational medical exams before termination, or are likely to have contracted an occupational disease or are under medical observation; or
B. has an occupational disease or a work-related injury during the execution of his/her duty and it is confirmed that the employee lost his/her capacity to work in whole or in part; or
C. suffers from a non-work related injury and is within the statutory medical treatment period; or
D. is pregnant, on maternity leave or during the lactation period; or
E. has been working for the employer for 15 consecutive years or more and is less than 5 years from statutory retirement age.
Several regulations set out prohibitions against unfair terminations of employment. Regarding employees on parental leave, the Swedish Parent Leave Act sets forth that an employee’s employment may not be terminated based on grounds related to parental leave. The same applies to employees on leave due to studies according to the Employee Leave (Education) Act. If an employer terminates or summarily dismisses the employment of an employee on parental or study leave leave due to reasons that is in correlation with the leave, the termination or the summarily dismissal shall be declared invalid.
According to the Union Representatives (Status in the Workplace) Act, union representatives have an additional protection against negative changes within the employment or terms of employment based on their assignment as union representative. Further, they may be exempted from the order of priority of termination in redundancy situations.
An employer cannot dismiss an employee on maternity leave during her maternity leave period or for 30 days after returning to work and during an employee on childcare leave. An exception is permitted in the event that the employer cannot continue its business.
An employer may not dismiss an employee during a period of occupational injury or disease and within 30 days thereafter unless it has paid certain amount of lump sum compensation to employee or is ceasing its business operations.
If an employer dismisses an employee because of, or for a reason connected with, the employee’s trade union activities, including legitimate industrial action, such dismissal will not only violate the just cause requirement under the LSA, but will also violate the Trade Union and Labor Relations Adjustment Act as the employer would be considered to have engaged in unfair labor practices.
Even though a fixed-term contract generally comes to an end automatically on the expiry of the agreed term, under the FTPTWPA, a fixed term employee who has been consecutively employed for longer than 2 years would be regarded as being employed for indefinite term and the employer cannot bring to an end without just cause. Furthermore, if an employee has formed a reasonable expectation that her employment contract will be renewed, the employer’s refusal to renew the employment contract may be construed as dismissal of the employee, which requires just cause.
Pregnant employees, or employees under sick leave following a work accident or occupational disease, benefit from a protection consisting of the employer’s prohibition to terminate the contract except for gross misconduct or “impossibility to maintain the contract”. Employees on strike may not be dismissed on the basis of facts committed during the strike, except in case of willful misconduct. The non-respect of this prohibition entitles the employee to reinstatement and/or high damages. For fixed-term contracts, please refer to question 1 above.
Under the Labour Constitutional Act 1974 other than protection from discrimination or harassment, certain group of employees are granted protection against a dismissal as well. Among these are employees with disabilities, pregnant employees, parents to whom the Maternity Protection Act 1979 or Paternity Leave Act 1989 applies, members of the works council, employees on compassionate leave, employees carrying their compulsory military or alternative community service. Depending on the statement by the works council, the employee or the works council can claim that a dismissal is either unfair on social grounds (the dismissal of a 55-year-old employee with custody of a child and 25 years' service, who has not done anything to interfere with the employer's operational interests), or made for inadmissible reasons (e.g. if an employee is dismissed because of union activities).
Statutory Leaves of Absence and the Right to Reinstatement
Broadly speaking, employees who take a statutory leave of absence cannot be terminated for reasons related to the leave. Employees returning from a statutory leave of absence must be reinstated to the position they most recently held before the leave began. Even if another person is doing the job, the returning employee is entitled to be reinstated to that position so long as the work is still being done and the job still exists. If the position no longer exists, the returning employee must be reinstated to a comparable position. Exceptions may be available where the employee’s employment is ended solely for reasons unrelated to the leave.
Fixed Term Contracts
At common law, fixed-term employees are not entitled to reasonable notice of termination or pay in lieu of notice upon the expiry of their fixed term contract. Under employment standards legislation, fixed term employees may be entitled to notice of termination or pay in lieu upon the expiry of the term, subject to the terms of applicable legislation. For example, in Ontario, the ESA provides that employees are not entitled to notice of termination or pay in lieu upon the expiry of a fixed-term contract that is less than 12 months (but are so entitled if the term is greater than 12 months).
In common law Canada, employers may terminate an employee during the fixed term so long as the contract contains a clear termination provision and such provision complies with the applicable employment standards requirements for notice or pay in lieu. However, in the absence of an enforceable early termination provision in a fixed term contract, a court may award the employee damages equivalent to the remainder of the term.
Yes, there are different categories of protected workers:
- members of or non-elected candidates for the works council and the committee for prevention and protection at work;
- members of the union delegation;
- prevention advisors; and
- “thematic” protected workers, such as pregnant women or workers benefiting from a time-credit regime, a career break or a specific leave (e.g. parental leave), etc.
The scope of the protection depends on the type of protection concerned.
Employees who have successfully completed the probationary period are entitled to specific protection in case of null and void/unfair dismissal.
As to the first category, the dismissal is deemed null and void and the employee must be reinstated in the company and receive the payment of damages (all remuneration lost during the period from dismissal until reinstatement, subject to a minimum of five months of salary) in the following cases:
i. Dismissal served in oral form;
ii. Dismissal based on a discriminative reason (above);
iii. Dismissal grounded on a determining unlawful reason pursuant to section 1345 of Italian Civil Code;
iv. Dismissal null and void according to other mandatory law provisions (e.g. pregnancy, maternity leave etc…).
According to case law, the same consequences regarding the dismissal grounded on discriminatory reasons also apply in case of dismissal served by the employer exclusively in reprisal or retaliation of the employee’s exercise of his/her legitimate rights concerning the employment relationship.
The above protection applies to all employees regardless of the level, the size of the employer and the date of hiring.
For other types of dismissal, the sanctions vary depending on the type of dismissal, the size of the employer, the date of hiring and his/her level.
i. Disciplinary dismissal (just cause or justified subjective reason)
For employers having up to 60 employees in the whole Italian territory or up to 15 in a single business unit or in several business units within the same municipality (“Comune”) the employer could be ordered to:
- re-hire the dismissed employee under a new employment contract; or, alternatively
- pay the dismissed employee an indemnity (i) ranging from 2.5 to 6 months’ gross salary for employee hired before 7 March 2015 or (ii) equal to 1 month’s salary per year of service, with a minimum of 2 and a maximum of 6 month’s salary.
The law sets out various criteria which the judge should utilise to quantify the indemnity, including: (a) the number of employees working for the employer; (b) the company's size; (c) the employee's length of service; (d) the parties' behaviour; and (e), the employment conditions in the local market.
It is up to the employer to choose between re-hiring the employee and paying the indemnity under (ii) above.
If the employer has sixty-one or more employees in the whole Italian territory or sixteen or more employees in a single business unit or in more business units within the same municipality (“Comune”), as above the consequences vary depending on the date of hiring.
- Employees hired before 7 March 2015
According to section 18 of the Workers' Statute, the employer has to reinstate the employee unfairly dismissed should the Judge ascertain that the ‘justified subjective reason’ or the ‘just cause’ does not occur because: (i) the contested behaviour is groundless or; (ii) the contested behaviour could have been sanctioned with a conservative measure according to the applicable collective bargaining agreement.
In this case, the employee has the right to be reinstated, and the employer has to pay him/her an indemnity equal to the salary due between the date of the dismissal and the date of the effective reinstatement with a maximum of twelve months of salary deducting the salary the employee earned whether employed in a different workplace (the so-called aliunde perceptum) or the salary the employee could have earned if she/he would have found an employment using the ordinary diligence (so-called aliunde percipiendum).
Should the Judge ascertain that the ‘justified subjective reason’ or the ‘just cause’ does not occur for different reasons than those set out at points (i) and (ii) above, the employee is entitled to a payment of an allowance ranging from a minimum of 12 month’s salary to a maximum of 24 month’s salary.
- Employees hired from 7 March 2015
According to the provisions entered into force in 2015, the newly hired employees have the right to be reinstated only in a specific case of disciplinary dismissal (i.e. dismissal for ‘just cause’ and for ‘justified subjective reason’). Specifically, the reinstatement will be available only when it is proved that the “material fact” upon which the dismissal was based did not occur. In this case the reinstatement should be implemented together with an indemnity equal to the lost salary from the date of dismissal until the reinstatement with a cap of 12 month’s salary deducting the salary the employee earned whether employed in a different workplace (aliunde perceptum) or the salary the employee could have earned if she/he would have found an employment using the ordinary diligence (aliunde percipiendum). The employee will also have the right to choose the 15 month’s salary indemnity in lieu of reinstatement.
In all the other cases, the employee will be only entitled to a monetary compensation, equivalent to two monthly remuneration per year of service (subject to a minimum of 4 month’s salary – in order to protect the employee at the beginning of the employment relationship – and a maximum of 24 month’s salary).
It is worth highlighting that if the employer has up to sixty employees in the whole Italian territory or up to fifteen in a single business unit or in more business units within the same municipality (“Comune”), the sole remedy applicable to the employee would be the increasing indemnity as the reinstatement is excluded for employees of ‘small companies' (with the exception of dismissal for ‘discriminatory’ reasons). In this regards, the indemnity payable by those employer is only half of the increasing indemnity indicated above, with a maximum of 6 month’s salary.
ii. Individual redundancy
The sanction for unlawful individual dismissal varies depending on the date of hiring and the size of the employer.
- Employees Hired before 7 March 2015
If the employer has up to sixty employees in the whole Italian territory or up to fifteen in a single business unit or in more business units within the same municipality (“Comune”), it is ordered to re-hire the employee with a new employment contract, or, alternatively, pay him/her an indemnity ranging from 2.5 to 6 month’s salary, depending on the employee’s qualification, length of service and behaviour as well as on the employer’s size and type of business, the market’s conditions and the parties' behavior before the dismissal. This indemnity can be increased to up to ten months of salary for an employee with ten years of service and up to fourteen month’s salary with twenty or more years of service.
It is up to the employer whether to re-hire the employee or pay the indemnity.
If the employer has sixty-one or more employees in the whole Italian territory or sixteen or more employees in a single business unit or in more business units within the same municipality (“Comune”), according to section 18 of the Workers' Statute, in the event the fact on which the termination was based is ‘manifestly groundless' the employees has the right to be reinstated and to the payment of an indemnity for the remuneration lost, with a 12 months cap. In all the other cases, the employee is entitled to a payment of an allowance ranging from a minimum of 12 month’s salary to a maximum of 24 month’s salary.
It is worth underling that the employees is entitled to reinstatement and to the monetary compensation for the remunerations lost (with a 12 month’s salary cap) also in case the employer serves the individual dismissal: (i) in violation of the sickness leave during which the employee is entitled to keep her/his job (so-called periodo di comporto) or (ii) unlawfully grounding the dismissal for objective reasons on the employee’s physical unsuitability for working.
- Employees hired from 7 March 2015
The employee does not have any right to be reinstated, being entitled only an increasing monetary compensation (two monthly remuneration per year of service, with a minimum of 4 until 24 month’s salary).
Eventually, in the event the employer serves the individual dismissal unlawfully grounding the dismissal for objective reasons on the employee’s physical unsuitability for working, the employee will be entitled to reinstatement and to the payment of all remuneration lost during the period from dismissal until reinstatement, subject to a minimum of five month’s salary.
The Legislative Decree no. 23 of 4 March 2015 does not specifies the sanction for the dismissal served in violation of the sickness leave during which the employee is entitled to keep her/his job (so-called periodo di comporto). As this kind of dismissal is directly related to the health protection guaranteed by Italian Constitution (section 32), according to certain authors the employee should maintain the right to reinstatement. On the contrary, other authors argue that the absence of any provision on this issue implies that the only remedy available to the employee would be the payment of the increasing monetary compensation (two monthly remuneration per year of service, with a minimum of 4 until 24 month’s salary). It will be therefore fundamental to wait for the first case law on this issue.
iii. Collective redundancy
- Employees hired before 7 March 2015
As anticipated above, Law no. 223 of 23 July 1991 provides that in the event that the employer does not comply with all the steps set forth for the procedure for collective dismissals, the employer shall pay the employee an indemnity ranging between a minimum of 12 month’s salary to a maximum of 24 months of salary.
If selection criteria are violated, the provisions set forth in section 18, paragraph 4 of the Workers' Statute (Law no. 300 of 20 May 1970) shall apply, and the employer shall (i) reinstate the employee unfairly dismissed; and (ii) pay him/her an indemnity equal to the salary due between the date of the dismissal and the date of the effective reinstatement, with a maximum of twelve months of salary deducting the salary the employee earned whether employed in a different workplace (the so-called aliunde perceptum) or the salary the employee could have earned if she/he would have found an employment using the ordinary diligence (so-called aliunde percipiendum).
- Employees hired from 7 March 2015
Similarly to the dismissal for ‘economic reason’, also the employees unlawfully dismissed in the framework of a collective layoff shall be entitled only to the monetary compensation above mentioned (1 month’s salary per year of service seniority, from a minimum of 4 until 24 month’s salary), being the right to reinstatement limited to the dismissal communicated orally.
Specifically, the monetary compensation will be the only remedy also in the event the employer does not comply with the criteria governing the selection of the employees to be made redundant (as anticipated, under Italian Law the selection of the employees to be dismissed in a collective layoff should follow the criteria provided for by the agreement reached during the consultation procedure with Unions or, in the event of a negative outcome, the employer must follow the criteria provided for by Law no. 223 of 23 July 1991: family dependants, seniority, and technical, productive or organizational matters). As far as collective dismissals are concerned, ‘new’ and ‘old’ employees will have a very different protection as in case of violation of the selection criteria the employees hired prior to the entry into force of the new regulations will have the right to be reinstated and to the payment of an indemnity for the remuneration lost, with a 12 months cap.
If the dismissal is judged to be unfair, the executive is entitled to a supplementary indemnity payment provided by the applicable national collective bargaining agreement, ranging from a minimum to a maximum number of months of salary. In addiction the executive could be entitled to receive other months of salary depending on his/her age at the moment of the dismissal, as determined by the applicable national collective bargaining agreement.
Regarding the executives, the Law no. 161 of 30 October 2014 has introduced specific sanctions for unlawful dismissal in case of collective redundancy involving them. In particular, in the event the dismissal of the executive is in breach of either the procedure or the selection criteria the employer shall pay him/her an indemnity ranging from 12 up to 24 monthly salaries, ‘unless the national collective bargaining agreements provide different provisions on the amount of said indemnity’.
The employees hired on a fixed-term basis cannot be dismissed before the expiry of the term except for just cause. Failure to do so will entitle the employee to the payment of the salary until that date.
Italian Law provides several cases in which the employer is prevented from dismissing employees (executives, too) as the dismissal is deemed null and void:
- Pregnancy: A female employee may not be dismissed from the beginning of pregnancy up to one year after the child’s birth, except in the cases of: (i) ‘just cause’ according to section 2119 of the Italian Civil Code; (ii) termination of the business by the enterprise; (iii) termination of the employment contract for expiration of the fixed-term; or (iv) termination of the employment relationship during the probationary period. The same rules apply to the father-employee who takes benefits from paternity leave for the whole length of such leave and up to the time the baby is 1 year old.
- Care child: Dismissal as result of the employee’s request to take parental leave or to take leave to care for a sick child is null and void.
- Marriage: an employer cannot dismiss a female employee from publication of a notice of marriage to one year after the wedding date, unless the dismissal is grounded on: (i) a ‘just cause’ according to section 2119 of the Italian Civil Code; (ii) termination of the business by the enterprise; (iii) termination of the employment contract for expiration of the fixed-term; or (iv) termination of the employment relationship for unsuccessful result of the probationary period.
In addition, according to Section 5, paragraph 2 of the Law no. 223/1991 the employer must ensure that he does not make a disproportionate number of women redundant. In particular an enterprise cannot make redundant a percentage of women higher than the percentage of women employed in the job categories concerned.
An employer who has been duly notified of an employee’s incapacity to work within the proper length of time (i.e. on the first day of incapacity), or who has received a medical note from the employee in due form within the proper length of time (i.e. on the third day of absence at the latest), is prohibited from notifying the employee of the termination of their contract or summoning them to the interview prior to dismissal. Any notification of dismissal by the employer to the employee during this period is unfair.
The employer’s right to dismiss an employee is then suspended for a maximum of twenty-six (26) weeks following the date of incapacity.
The following employees also enjoy a special protection against termination as well (this list is not exhaustive):
- a woman whose pregnancy is medically approved cannot be dismissed during her period of pregnancy and for a maximum of twelve (12) weeks following the birth of the child. Any notification of dismissal during this period is deemed to be null and void.
- an employee during parental leave. Any notification of dismissal during this period is deemed to be null and void.
- Staff representatives, as well as their alternates, are protected against dismissal throughout their term of office. Any dismissal is deemed to be null and void, whatever the reason. This protection period is extended to former representatives for six (6) months following the end of their term of office, and to candidates for election to such office for a period of three (3) months following the announcement of their candidacy.
- Members of the Joint Works Council may only be dismissed with the consent of the joint works council to which they form part.
Fixed-term workers cannot ordinarily be dismissed unless a termination clause is included in the contract.
Woman during a pregnancy and in the first four months after delivery enjoy special protection. The same applies to employees (men or women) during parental leave. Moreover, persons with severe disabilities are protected and the employer requires prior consent of the competent authority. Other people who enjoy special protection against dismissal are works council members and other officials under the Works Constitution Act. They cannot be dismissed ordinarily but only for cause and only if the consent of the works council has been granted or been replaced by a court decision.
While there may be special protections for certain types of employees such as minors 15 to 18 years old and pregnant employees, every employee is entitled to the same protection on the termination of employment. Employees with a tenure of more than 20 years of service are partially protected against termination with cause, in the sense that the grounds for termination must be, according to the FLL, “particularly serious”.
Yes. Certain groups of employees enjoy special protection against the termination of employment. Shop stewards, industrial safety delegates and personnel representatives may only be dismissed under exceptional circumstances specified by law. The protection of these groups has often been further improved by collective agreements.
In addition, an employer has no right to dismiss an employee who is on family leave. If a pregnant employee is dismissed, the dismissal is deemed to have taken place due to the pregnancy, unless evidence to the contrary is provided by the employer.