Does the employer have to obtain the permission of or inform a third party (e.g local labour authorities or court) before being able to validly terminate the employment relationship? If yes, what are the sanctions for breach of this requirement?
Employment & Labour Law (3rd edition)
There is not no reporting obligation, except as informed in 2. above in case of massive redundancy or reduction in force.
Yes, in some circumstances the employer has to inform or report to a third party. For example, when a redundancy occurs in a company the employer must explain the reasons to the trade union or the whole staff 30 days in advance, get their opinions and report the redundancy plan to the local labour authority. Also, the employer shall inform the trade union in advance when it intends to terminate any employment unilaterally. If the employer contravenes laws, regulations or the employment contract, the trade union can require the employer to rectify the errors. The employer must consider the opinions of the trade union and inform the trade union of the result.
If an employer fails to fulfil such procedures, the termination will be deemed as illegal and the employer should bear the relevant liabilities (see question 8).
There are two possible scenarios for this question.
- If the employer wants to terminate the agreement with a dismissal without a cause, he/she does not need to inform nor obtain prior permission. The only requirements will be to pay the legal indemnification and to register the worker's departure in the on-line platform (SUT) maintained by the Labor Ministry.
- If the employer wants to terminate the agreement based on dismissal with a fair cause with no indemnification payment obligation, it is mandatory to follow the administrative procedure called Visto Bueno before the Labor Inspector and previously obtain its favorable approval resolution.
The labour inspector’s authorization is required to terminate the employment of protected employees, e.g., current elected or appointed employee representatives, former representatives (who remain protected over a period of 6 or 12 months depending on the nature of their mandate) and candidates to staff elections. Failure to request said authorization, or annulment of said authorization by a court, results in an obligation to reinstate the dismissed employee or, if the employee waives reinstatement, payment of damages up until the end of protection within the limit of 30 months.
In general, the employer does not need to obtain permission by a third party. However, if a person falls under maternity protection or is taking parental leave they can only be dismissed if the competent state authority agrees. Also, with respect to persons with disabilities dismissals require the prior consent of the competent authority.
Furthermore, the Federal Employment Agency needs to be notified before a mass layoff (cf. answer to question 2).
No permission is needed from third parties to conduct termination, although the employer must inform the termination of employment to the Labour Authority. If the employer fails in the notification to the Labour Authority, this will not affect the validity of the termination, but it may result in a fine imposed to the employer which could vary from €63,69/USD72,01 to €3,821/USD 4319,89 approx.
Yes, prior to commencing a termination of employment, an employer would need to obtain approval on termination of employment from the relevant industrial relations court. Unless the employer and the employee agree to a mutual termination of employment, the lack of approval for termination may gives the employee a ground to challenge the termination and submit a claim against the employer based on the ground that the employment relationship was terminated unilaterally.
Under Italian law, there is no legal requirement for the employer to inform in advance third parties before terminating its employees’ employment relationship, except for:
- collective dismissals, as these are to be served within the framework of an information and consultation procedure with the trade unions/works councils, which is to be mandatorily triggered in advance by the employer;
- dismissals relying on objective justified grounds (“giustificato motivo oggettivo”), which - conditional upon these being served to middle-managers (“quadri”), white-collars and blue-collars hired before 7 March 2015 by employers which are staffed with more than overall 60 employees in Italy or which employs more than 15 employees at each production unit/within each municipality - must be notified in advance to the labour office (as this has to schedule a meeting before the settlement committee).
There is no requirement to obtain permission from a 3rd party prior to termination of employment.
However, for retrenchment exercises, voluntary separation schemes and lay-offs, the employer must notify the nearest Labour Office no later than 30 days before the proposed exercise using the PK Form, otherwise it may be fined up to RM10,000.
No approval from a government agency is required when terminating employment. However, the Norwegian Labour and Welfare Organisation has to be notified if 10 or more employees are affected by a redundancy process, see question 2 above.
If an enterprise is to be shut down resulting in the termination of all employee contracts, the owner of the entity is obliged to notify the county authorities.
For just causes, the employer need not inform/obtain the permission of the labor authorities or the courts to validly terminate employment.
For authorized causes, the employer is required to serve a written notice to the DOLE at least thirty days before the intended termination date, otherwise the employer may be held liable to pay nominal damages to the employee in the amount of up to P50,000.
Generally, unless the WARN Act or similar state statutes are implicated (see response to Question 2), an employer is not required to obtain the permission of or inform a third party before being able to validly terminate the employment relationship.
Mattos: No. However, in case of layoffs/collective dismissals case law before the Labor Reform was demanding previous negotiation with the employees’ union (please refer to answer to query # 2 above).
No, except in the case that the employee whose employment is being terminated is a member of the Employee’s Committee of a labour union, in which case the Labour Court’s approval (as mentioned in paragraph 11 above) would be required. Failure to comply with the requirements under paragraph 12 would also result in the employer being liable to imprisonment not exceeding one month and/or to a fine not exceeding Baht 1,000, or to both.
The employer does not have to obtain any permission of a third party but is required to inform the Social Security Institution regarding the redundant employee within ten days following the termination. If the employer breaches this requirement, a fine corresponding to one tenth of the minimum wage (app. TRY 256) shall be imposed.
Additionally, in case of a collective redundancy, the procedures explained in Question 2 shall be applied. If the employer breaches the obligations stated thereunder, a fine of TRY 857 per each employee shall be imposed.
Except for collective dismissals (see question 2) or when the employer is party to a collective labour agreement, federal and cantonal authorities or employees' representative bodies are not involved in the process of terminating an employment relationship.
According to Swedish law, no prior approval from a government agency is required when terminating employees. However, as stated in question 2 above, the employer is obligated to inform the ES when conducting redundancy terminations of five or more employees. If the employer fails to inform the ES it may be liable to pay a fine of up to SEK 500 per affected employee per commenced week.
No. The validity of the termination of the employment is subject to the test of justification contained in s103A of the Employment Relations Act 2000.
If the employer plans to terminate the employment contract of a personnel representative the court must be involved and first validate the reasons and allow the termination. Failing to comply results in either reinstating the personnel representative by order of the court (the termination being void) or paying the personnel representatives damages, including ‘specific damages for void termination of a personnel representative specifically protected’.
If the employer plans collective redundancies, the unions are involved if there is a collective bargaining agreement applicable and in any case various administrations are involved (Employment Agency, Labour Inspectorate, sometimes National Conciliation Office or Ministry of Economy).
By law the employees made redundant further to an irregular collective dismissal procedure (e.g. not involving the Employment Agency) may claim damages for unfair termination.
Moreover, failing to comply with specific provisions of the procedure for collective redundancies makes the redundancies void.
Where the termination is void by law, the courts must order that the employee dismissed is reinstated if s/he so wishes. By law, the employee dismissed may however opt for damages for unfair termination instead.
There are no third-party approvals expressly required by law, however, there is a requirement to involve certain labor authorities (during a mass lay-off process or, in specific cases, during a poor-performance or medical unfitness dismissal), including an obligation to provide them with relevant termination-related documents.
Under Peruvian legislation, the only cases in which the employer must previously obtain the Labor Authority’s approval is for collective termination of employment, as described in Question N° 2. If the employer does not comply with such obligation, the request for collective termination will be denied by the Labour Authority; therefore, the procedure for termination of employment will be considered invalid.
In principle, the employer does not need to obtain the permission of or inform a third party before terminating the employment relationship, unless required under an agreement with a third party such as a trade union (please see reply to Question 9).
When the termination of employment due to redundancy (including both dismissals and solicited resignations) of 30 or more employees is expected to occur within one month, the employer must create a support plan for re-employment, submit it to a local public job-placement office and obtain its approval at least one month before the first termination of employment occurs (Article 24, paragraph 1 of the Employment Measures Act) (‘EMA’).
Similarly, when the termination of employment for any reason (including both dismissals and solicited resignations) of 30 or more employees is expected to occur within one month, the employer must file a notification of large-scale termination with a local public job-placement office at least one month before the “first” termination of employment occurs (Article 27, paragraph 1 of the EMA). If the reason for the termination is redundancy, and the employer has submitted a support plan for re-employment as required, then the employer would be deemed to have filed the large-scale termination notification.
Also, if the termination of employment due to redundancy (including both dismissals and solicited resignations) of five or more elderly employees (employees whose ages are 45 or over but below 65) is expected to occur within one month, the employer must file a notification of termination of elderly employees with a local public job-placement office at least one month before the “last” termination of employment occurs (Article 16, paragraph 1 of the Act on Stabilization of Employment of Elderly Persons) (‘ASEEP’). If the employer has submitted a large-scale termination notification pursuant to the preceding paragraph, then the employer would not need to file the notification of termination of elderly employees.
Employers who fail to file a notification with the local public job-placement office are subject to a penalty of fine up to 300,000 yen in case of a large-scale termination notification (Article 40, paragraph 1, item 1 of the EMA) and 100,000 yen in case of a notification of termination of elderly employees (Article 57 of the ASEEP).
Yes, see question 7 and 8.
When terminating the employment relationship with protected employees, special procedures have to be observed. Dismissal of a protected member of the workforce typically requires prior consent from a court. The dismissal of a registered disabled person is only valid provided the employer obtains a prior consent from the Disability Employees Committee chaired by the Federal Office for Social Affairs and Disabled Persons. When breaching this requirement, dismissal is null and void and the employer could be facing legal consequences, company reputation, reduced productivity, penalties, discrimination complaints and/or lawsuits.
The FLL provides as a general principle of Mexican labour law, the prohibition of acts of discrimination and labour and sexual harassment. These acts are also considered grounds for terminating an employee with cause if the employee engages in this type of conduct. Finally, in the catalogue of employer prohibitions, any act of discrimination or labour or sexual harassment is expressly forbidden.
In the event of an act of discrimination or labour or sexual harassment, an employee can bring an action against the employer, terminating the employment relationship with cause, and claiming the payment of severance plus accrued back pay through the end of the trial. There is no special severance, compensation or damages available in Mexican labour court for an employee claiming an act of discrimination or labour or sexual harassment. Because the employee would have to terminate the employment relationship with the employer with cause based on said grounds, the severance available is the same as for any other action for wrongful termination or unjustified dismissal.
There are no circumstances in which a failure to notify a third party will void the termination of employment.
An employer who proposes to dismiss as redundant 20 or more employees within a 90 day period must notify the Secretary of State of such planned redundancies using a prescribed form. Failure to make the required notification is a criminal offence and a fine may be payable.
In case of liquidation of the organization or reduction of the number of the employees, while terminating the employment contracts the employer shall submit the information about the number of the dismissed employees to the State Employment Service of the Republic of Armenia and the representative of the employees, about the termination of the employment contract not later, than two months in advance, if during two months they envisage to dismiss more than ten percent of the total number of employee, which, however, makes not less than 10 employees.
Employers are not required to obtain the permission of or inform a third-party (e.g., local labor authorities or the courts) before terminating individual employees.
In the case of a layoff, one of the Layoff Requirement includes filing a report to the MOEL if, in principle, 10% or more of the workforce is being laid off. However, if the first four (4) Layoff Requirements are satisfied (please see Question 2), the validity of a layoff would not be diluted simply because the employer fails to make this report. Please note that if a layoff is held invalid, the available remedies are reinstatement and backpay for the terminated employees.
Please refer to Question 8 regarding the consequences of an invalid termination.
As explained in response to question 2 above, where collective redundancies are proposed the employer is required to provide specific information in writing to the Minister for Employment Affairs and Social Protection at least 30 days before the first dismissal takes effect. Employee representatives must be sent a copy of this notice.
Sanctions for breach of this requirement include a declaration that the complaint was or was not well-founded, the employer may be required to comply with this notification obligation at least 30 days before the first dismissal takes effect, and/or the employer may be ordered to pay the employee compensation of a maximum of four weeks remuneration.
In the case of exceptional collective redundancies (ie where the employees being made redundant are replaced by employees who are carrying out essentially the same functions but under materially inferior terms and conditions), the employer may face liability of up to five years' gross remuneration for each affected employee and/or fines on indictment of up to €250,000.
The employer has to obtain permission from the works council when termination is planned for the following workers:
- a member of the works council,
- a candidate for the works council who was not elected, during a period of three months after election results,
- a worker who has diminished or no working capacity due to a work-related injury or professional illness
- a worker over 60 years of age,
- a workers' representative in an employer’s body,
- a worker terminated for collective redundancy reasons
If the above requirement is breached, the termination will be considered null and void.
It does not apply in our legislation.
Dismissal on the ground of physical unfitness
Physical unfitness must be notified to the employer who must explore all possibilities of redeploying workers. If redeployment is not possible or if the employee declines it, the employer shall obtain the prior consent of a Commission to dismiss the employee.
Employers shall obtain the prior consent of the Dismissal Commission to dismiss the following employees:
- Pregnant employees, employees on parental leave or adoption leave;
- Staff representatives, union representatives, harassment officers;
- Labour Court member.
Non-compliance with the procedure or the commission’s negative opinion entitles the employee to damages for unfair dismissal. Failure to meet these provisions is also punishable by criminal laws.
There is generally no requirement to obtain the permission of or to inform a third party before being able to validly terminate the employment relationship, unless the termination of the employment relationship is due to retrenchment, or a collective agreement requires the employer to notify and/or consult the trade union in advance. For more details concerning the termination of employment in retrenchment situations, please see our response to question 2.