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 (3rd edition)
Argentina law does not provide any distinction between full time, or employees under specific terms. Therefore, all employees are protected under the law.
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:
- 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
- has an occupational disease or a work-related injury during the execution of his/her duty and it is confirmed that the employee has lost his/her capacity to work in whole or in part; or
- suffers from a non-work-related injury and is within the statutory medical treatment period; or
- is pregnant, on maternity leave or during the lactation period; or
- has been working for the employer for 15 consecutive years or more and is less than 5 years from statutory retirement age.
The categories of worker with special protection on the termination of employment are as follows
- The union leader and the woman associated to a motherhood condition have special protection in case of discrimination and termination of the employment. In these cases, there may be one of two consequences: 1) the judge may order the reinstatement of the employee to the job position or 2) the judge may order the additional economic compensation of twelve remunerations.
- In any case of termination of the agreement for discrimination against other employees without the qualities stated above, there will be an equal additional economic compensation of twelve remunerations.
- The sick worker with a rest medical certificate, who suffers a dismissal without a cause has an additional compensation of six months of remunerations.
- If a worker is dismissed in the process of forming a trade union, or at the end of a lawful strike, he/she is entitled to an additional compensation of twelve-monthly remunerations.
- If a disabled qualified worker is dismissed without a cause, he/ she is intitled to an additional compensation of eighteen monthly remunerations.
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.
Fixed-term employments cannot ordinarily be terminated unless a termination clause is included in the contract.
Women 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. Furthermore, persons with a severe disability 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. In addition, some other employees given special tasks under relevant laws such as the Data Protection Officer (if an employee) enjoy special dismissal protection.
Also, some collective bargaining agreements preclude the dismissal of elder employees with a certain length of service (cf. answer to question 9).
Yes (e.g. pregnant worker; workers who are under medical leave; workers who are union directors and president of the Health and Safety Committee).
We set out below the categories of workers that are provided special protection from discrimination or harassment in a termination of employment:
- an employee who is sick for a period not longer than 12 months;
- an employee who is carrying out a state duty;
- an employee who is conducting a religious duty;
- an employee who gets married;
- an employee who is pregnant or recently had a miscarriage;
- an employee who has direct relations or if an employee marries a co-worker;
- an employee who becomes a member of a labour union;
- an employee who has different religious view, pollical views, race, religion, gender, physical well-being, skin colour and marital status; and
- an employee who is disabled.
Kindly be advised that if an employee is terminated due to any of the above reasons, the termination of employment is deemed as null and void and the employee must be reinstated to his/her former position.
Under Italian law, dismissals are to be considered as being null and void whenever these:
- are grounded upon employees’ marriage - the dismissal is considered as being notified due to the employee’s marriage whenever it is served over the period as of the date on which the banns are publicly put up until 1 year running as from the marriage date, unless it relies on: (i) a misconduct by the relevant employee which qualifies as a cause for termination (“giusta causa”); (ii) the company’s shutdown; or (iii) the expiry of the term under a fixed-term agreement;
- are served to female employees over the period as from the beginning of the pregnancy until the date on which the child turns 1, to male employees who have taken a paternity leave over the period as from its starting date until the date on which the child turns 1 or to female employees over a 1-year term starting from the date on which the adoption/custody takes place, unless the dismissal relies on: (i) a misconduct by the relevant employee which qualifies as a cause for termination (“giusta causa”); (ii) the company’s shutdown; (iii) the expiry of the term under a fixed-term agreement; or (iv) unsuccessful trial period;
- rely on parental leaves or leaves for child illnesses having been taken by the relevant employee;
- solely rely on an unlawful reason, this including retaliation grounds;
- fall under the other cases of invalidity contemplated under Italian law (for example, dismissal relying on a transfer of business having taken place).
If the dismissal is found to be null and void, affected employees are entitled to be reinstated in their previous position (or, at their own choice, to be granted with an indemnity amounting to 15 months of salary) as well as to be paid with an indemnity amounting to those salaries which would have been accrued over the period as from the dismissal date until the date of actual reinstatement (a minimum floor of 5 months of salary is provided for).
Moreover, as per Italian law provisions, individual dismissals relying on objective justified grounds (“giustificato motivo oggettivo”) served to disabled employees who have been hired by the employer to comply with its mandatory hiring obligations under Italian law or those notified to the same category of employees within a collective dismissal procedure are invalid whenever the overall number of disabled employees in force after the dismissal is below the statutory threshold established by Italian law.
Employees who fall within the ambit of the Employment Act 1955 (“EA”) cannot be terminated unless they are found guilty after due inquiry into their alleged misconduct. Although there is no specific requirement for non-EA employees, it is advisable for due inquiry to be conducted in compliance with the rules of natural justice.
Female employees cannot be terminated during maternity leave unless the termination of employment is due to closure of business (See: Part IX of the EA).
An employee in the private sector is also protected from being prematurely retired before he reaches the minimum retirement age of 60 years old pursuant to the Minimum Retirement Age Act 2012 (unless he falls within the category of exempted employees specified in the Act).
Employees on fixed-term contracts for more than a year are entitled to a written notification from the employer about the end date of their employment. Such information must be provided to the employee at least one month prior to the expiry of the agreed fixed-term period. If the employee is on a temporary contract for more than three years (as a substitute) or more than four years as a temporary employee (for instance project-based), he/she is considered as a permanent employee with all the protection against unfair dismissal.
Employees on family leave or sick leave are protected against termination of employment on grounds related to such leave.
Employees who are elected employee representatives have additional protection against termination when employees are made redundant.
The rules on termination of employment generally apply to all workers, regardless of category.
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, states have increasingly passed legislation to enhance family leave benefits. For example, in 2018 Massachusetts enacted a paid family and medical leave law, establishing a system for paid family leave up to 12 weeks to care for a family member, and up to 20 weeks for your own illness.
Employees with fixed-term contracts generally have no specific protections upon termination except as agreed by the parties.
Mattos: Yes. These employees have job protection (tenure) under the following conditions:
A. If the employee had a work-related accident or suffers from a work-related disease: the employee has tenure from the moment of leave up to 12 months after the date of reinstatement
B. If the employee is member of the company's internal commission for accident prevention: the law requires the employer to have this internal commission depending on the size of the company's facilities, and the number of employees in each of these facilities; representatives of the employer and employees form this internal commission; if such case, the employees have tenure from the moment they apply to the position up to one year after their mandate ends
C. If the employee gets pregnant: the employee has tenure from the moment of pregnancy confirmation up to five months after the date of birth
D. If the employee is a union representative: the employee has tenure from the moment of application to the position up to one year after the mandate ends
E. If the employee is a representative of the company's employees: the law requires companies with more than 200 employees to elect representatives of employees; the number of representatives follows a progressive scale that is dependent on the total headcount of the company; these representatives have job tenure from the moment they apply to the position up to one year after the mandate ends
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).
An employer employing 30 or more employees (including all employees working in all entities and workplaces of the employer worldwide) may only terminate the employment relationship of an employee with at least six months seniority on a valid or justified ground.
In general, according to TLC, employees who work in a workplace that employs 30 or more employees and who have been working in that workplace for at least six months enjoy special protection as to termination of their contracts. These specific provisions are called the job security provisions, according to which, the employment contracts of such employees can only be terminated either on valid or justified grounds (See Question 1).
Furthermore, TLC specifically regulates that pregnant employees should not be treated inequitably. Thus, pregnant employees are granted an explicit protection against any termination that may take place because of their unique situation.
The following categories of workers enjoy absolute protection against dismissals during certain periods ('protected periods'):
- pregnant mothers: during the pregnancy and 16 weeks following the birth of the child
- employees who are fully or partially prevented from working due to an illness or accident: during a period of 30 days in the first year of service, 90 days from the second to the fifth year of service (included), and 180 days after the sixth year of service;
- employees performing a compulsory military or civil defence service (provided that the service lasts more than 11 days): for the duration of the service, as well as the four weeks preceding and following the service;
- employees participating in a foreign aid programme assigned by the Federal authorities, with the employer's consent: for the duration of the programme.
Notice given by the employer during a protected period is null and void. If notice is given prior to the beginning of a protected period which arises during the notice period, the notice period is suspended for the duration of the protected period and shall continue to run thereafter. If, following the suspension, the notice period does not end on the last day of a month, the employment relationship is extended until the end of the following month.
Several regulations set out prohibitions against unfair terminations of employment. Regarding employees on parental leave, the Swedish Parental Leave Act sets forth that an 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´s Right to Educational Leave Act. If an employer terminates or summarily dismisses the employment of an employee on parental or study leave due to reasons that is in correlation with the leave, the termination or the summary dismissal shall be declared invalid.
According to the Trade Union Representatives Act, union representatives have additional protection against negative changes regarding their 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.
The following categories of employees have some additional protection:
With very limited exceptions, an employer may not terminate employment of any employee by reason of pregnancy or state of health during pregnancy.
An employer cannot terminate employment by reason of the employee indicating the he or she wishes to take parental leave under the Parental Leave and Employment Protection Act 1987.
Limited to certain special defences, an employer cannot terminate employment on the basis of the employee’s absence on parental leave or during the period of 26 weeks commencing with the day after the date of which period of parental leave ends.
Termination of employment for cause is not affected by the Parental Leave and Employment Protection Act 1987.
Employees affected by family violence
From 1 April 2019, employees who are affected by family violence are entitled up to 10 days’ paid leave per annum, once employees have been employed continuously for 6 months. Family violence leave is not cumulative, is not paid out at the end of employment and can be taken in advance.
Employees who are affected by family violence can also request short term changes to their working conditions, including work location, duties, contact details that the employee gives to the employer, or any other term of the employment agreement.
Fixed term employment
Employers can offer fixed-term employment if there are genuine reasons based on reasonable grounds for the fixed term, which may include, for example, seasonal work, project work, or where the employee is covering another employee’s parental leave. The employer must, in the employment agreement, advise the employee of when and how his or her employment will end and the reasons for his or her employment ending in that way.
If the employment agreement does not comply with these requirements, the employer may not rely on any fixed term to end the employee’s employment or to justify termination of employment, where the employee elects, at any time, to treat that term as ineffective.
Employees involved in cleaning services and food and catering in any workplace; and caretaking or laundry in the education sector; and orderly or laundry in the health sector and aged-related residential care sectors are entitled to transfer their employment if their work is replaced with contractors, contracted out or their business or part of the business is sold.
Public Health Sector
There is a code of good faith for public health sector that provides some additional protection to employees in the public health sector including employees of employers that provide services to the public health sector. This includes employees of employers who contract services to the public health sector being entitled to transfer to a new employer if the service provider is changed.
In principle fixed-term contracts may be terminated before their term only for gross misconduct.
Pregnant employees are protected and may either request the nullity of their termination (and their reinstatement) or they may claim damages for unfair termination.
Employees on parental leave may request the nullity of their termination (and subsequent reinstatement in the company).
Personnel representatives are protected and may either request the nullity (and reinstatement) or specific damages for their termination.
Employees on sick leave are protected from termination (with or even without notice) for a period of 26 weeks of continuous leave: otherwise their termination is deemed unfair and they are entitled to damages.
Employees benefiting from internal redeployment are protected from termination with notice for a period of twelve months as of the decision of the administration granting the redeployment and may request that the court order their reinstatement for void termination.
Specific whistleblowers are protected against termination: their termination is deemed void.
Other express cases when employers are prohibited from dismissing employees include:
- pregnancy, if the employer acknowledged the pregnancy before issuing the dismissal decision;
- maternity leave;
- parental leave;
- sick child care leave;
- during maternity risk leave (and for a 6 month term after);
- for a 6 month term after their final return to work from parental leave etc.
Yes. Our legislation gives special protection for termination of employment to workers that qualify under the following categories:
- Workers who have recently joined a union or that have participated in union activities, within the thirty (30) days prior to the completion of the electoral process and up to thirty (30) days after its conclusion.
- Workers who are candidate as workers' representative or act or have acted as such, for a period of up to ninety (90) days after leaving said position.
- Workers who have filed a complaint or participated in proceedings against the employer before the competent authorities.
- Pregnant and nursing women workers, if the dismissal occurs during the pregnancy or during the period established for breastfeeding, which concludes when the newborn turns one year old.
If there was not a legal cause for the termination of employment in any of the aforementioned cases, the dismissal could be declared void by a judicial authority and, therefore, the workers would be entitled to the rights and benefits described in Question N° 11 (reinstatement at work and accrued social benefits).
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 when the employee does not recover from the injury or illness for 3 years (Article 19, paragraph 1 of the Labour Standards Act).
In Dutch law a distinction is made between two categories of prohibition of termination. One category are the ‘during-prohibitions’ (concerning employees under sick leave, unless the disability lasted more than two years, pregnant employees, employees on compulsory military service or employees who are members of the works’ council). In these circumstances the employee is protected against the termination of the contract except for specific situations, such as a serious imputable act by the employee or the closing down of the company.
The other category is the ‘because of-prohibition’. An employee cannot be dismissed because of a certain capacity of him or her, e.g. being a member of an union, political leave, the transfer of business or not wanting to work on a Sunday. Neglecting these prohibitions entitles the employee to reinstatement or high damages.
Under the Labour Constitutional Act certain groups of employees are granted protection against a dismissal. Among these are employees with disabilities, pregnant employees, parents to whom the Maternity Protection Act or Paternity Leave Act 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 (e.g. the dismissal of a 55-year-old employee with custody of a child and 25 years' service, who has not interfered with the employer's operational interests), or made for inadmissible reasons (e.g. if an employee is dismissed because of union activities).
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”.
The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 apply to employees engaged on contracts of employment for a specific time period or which will end when a specified event happens. Employees working under such contracts are entitled to be treated in the same way as permanent employees who are employed at the same place and to do similar work. Different treatment is capable of objective justification.
Part-time workers are entitled to similar protection under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which also derive from European law. Part-time workers are entitled to be treated in the same way as comparable full-time workers and are protected from being subject to less favourable contractual terms or any other detriment, on the grounds that the worker is part-time. This concept is subject to the ‘pro-rata’ principle, that it is not less favourable to pay part-time workers proportionately less pay and benefits than full-time workers.
If the principal reason for dismissal of a worker is that they have asserted their rights as part-time workers or fixed-term employees, the dismissal will be automatically unfair.
The labour contract may not be dissolved during the temporary disability period of any employee (with exception of long-term disability) or during the leave of: pregnant women–during the period lasting from submission of the pregnancy certificate to the employer to the completion of one month after the end of the pregnancy and delivery leave; persons who take care of a child but are not on leave – during the whole period of care for the child until
it attains the age of one, with several exceptions; after taking the decision to strike and during the strike, persons who take part in a strike in compliance with the procedure defined by legislation; and for persons who have duties imposed on him/her by governmental or local self-management bodies, save for cases of conscription for military service.
Fixed-term employees are treated the same as regular, indefinite-term employees under Korean employment laws. Also, please refer to Questions 11 and 12 for information on specific protections for certain categories of employees against termination and/or discrimination.
Fixed-term employees and part-time employees are protected from being treated less favourably (including protection from dismissal) than their permanent comparators unless there are objective grounds justifying such action and it is intended to achieve a legitimate aim so the different treatment is appropriate and necessary to achieve that aim.
Dismissal on the grounds of pregnancy or the employee exercising certain rights to protective leave (e.g. maternity, paternity, adoptive, parental or carer's leave) is automatically unfair. In addition, any notice of termination served on an employee during maternity leave is void and an employee returning from protected leave has the same right to return to the same job or - if it is not reasonably practical – a suitable alternative to the job held prior to going on maternity leave.
Banded hours employees and employees who are dismissed in relation to asserting their rights under the Employment (Miscellaneous Provisions) Act 2018 are protected from dismissal.
Temporal employment contracts may be terminated only if that option is provided by the contract.
An employment contract may not be terminated during a person’s pregnancy, maternity, parental or adoption leave, periods of part-time work, periods of short-time work due to intensified childcare, the leave of pregnant women or breastfeeding mothers, and the periods of leave or short-time work for reasons of caring for a child with serious developmental disabilities, and within fifteen days after the end of such rights. Such termination is considered null and void.
It is not possible to terminate the contract of a worker who is temporarily incapacitated for work due to medical treatment or recovery from a work-related injury or a professional illness. Such termination is considered null and void.
Yes, there are workers who have reinforced job stability or commonly known as immobility, these are:
- Those parents who have a child under 1 year of age.
- Those who have the legal status of physically "disabled".
- Those that belong to the directory of a union.
Employees on fixed-term contracts cannot be dismissed in the strict sense of the term but the contract can be terminated unilaterally by the employer in certain cases (see question 1).
Please see our response to question 11.