Does the employer have to obtain the permission of or inform a third party (eg 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 (2nd Edition)
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.
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. Where 100 or more redundancies are proposed, notification must be made at least 45 days before any notice to terminate employment is given. If 20 or more redundancies are proposed, at least 30 days’ notice must be given. Failure to make the required notification is a criminal offence and a fine may be payable.
The employer does not, in general, have to obtain the permission of or inform a third party before being able to validly terminate the employment relationship.
However, in all jurisdictions except Prince Edward Island, there are specific notice provisions under the relevant employment standards legislation that apply to ‘mass’ or ‘group’ terminations (see Question 2). Pursuant to these provisions, notice to the applicable Ministry of Labour of an upcoming mass termination is often required. Failure to do so may invalidate notice given to employees and/or result in fines or penalties, as specified in applicable labour standards legislation. Also, a collective agreement may contain requirements concerning notification to the union or certain union officials.
In terminations due to authorized causes, the employer is required to notify the appropriate DOLE Regional Office of the same. However, the permission of the DOLE is not required. For terminations due to just causes, neither permission nor notice to the DOLE is required.
Other than with respect to protected groups of employees (see below), there is not a requirement to obtain the permission of any third party for the termination of employment. However, employers who terminate the employment of 10 employees or more, are required to send a notification in this regard to the Israeli Employment Service.
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. However, consultation and notification requirements do exist, for example, in collective redundancy situations. Employees impacted by a collective redundancy must be consulted 30 days prior to a termination taking effect and the Minister for Employment Affairs and Social Protection must be informed in writing (please see question 2 above). Employers are liable to a range of fines, depending on the breach for a failure to consult and notify.
Generally, 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.
Moreover, the Employment Agency needs to be notified before a mass layoff (cf. answer to question 2).
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.
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).
As general rule, the employer is free to decide on the dismissal of an employee.
In certain circumstances, as collective dismissals or for protected employees (e.g. employees’ representatives), the employer must notify/ask permission to dismiss the employee. If it does not respect this obligation, it will have to pay an extra indemnity.
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.
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.
In principle, no permission or information of a third party is required for a valid termination of an employment.
Only in case of an intended mass redundancy, the employer must inform the cantonal labour office. Notwithstanding the contractual and statutory provisions, employments terminated in the course of a mass redundancy may not end before the expiry of 30 days since such information to the cantonal labour office (see art. 335g of the Swiss Code of Obligations).
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.
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.
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.
Apart from the procedures above mentioned and related to individual or collective redundancy (according to which the employer must inform/deal with the Labour Office at local/regional/central level depending on the case), in general the employer is not required to obtain the permission or inform any third party when terminating an employee. However, some NCBAs (e.g. those for metal engineering companies) specify that works council members can only be dismissed with the prior consent of the union(s) to which they belong. The sanction is case of breach is the reinstatement of the employee and the payment of damages.
Employers are not required to inform or get the authorisation of any labour authorities when dismissing for severe misconduct or poor performance.
There is no legal requirement to obtain a prior permission before being able to validly terminate the employment relationship.
However, any employer employing at least 15 persons, must notify the Comité de Conjoncture (division within the Ministry of Economy in charge of supervising the implementation of prevention measures introduced into Luxembourg law in 2006) of any termination/redundancy taking place for any grounds not linked to the employee’s aptitude or attitude (i.e. for economic reasons). Such notification must be carried out at the latest when the employee is notified of the termination. There is no sanction attached to a breach of this obligation. The purpose of such notification is to give a right of review to the Comité de Conjoncture, which may take the initiative to invite certain employers to negotiate an employment safeguarding plan instead of a social plan in certain circumstances.
Only an information obligation with the Administrative Labour Authority exists and applies for collective layoff (in this regard, please see answer to question 7).
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).
For employees to whom the ID Act applies
As discussed in question 2 above, depending upon the nature, location and the number of employees in an establishment, the employer shall be required to serve a notice to the appropriate Government / authority and also take prior permission of the appropriate Government / authority as per the ID Act. Failure to provide the notice to the appropriate Government / authority or take prior permission shall attract penalty which shall be punishable with imprisonment and / or fine.
For employees to whom the ID Act does not apply
There is no requirement to consult or notify the local labour authorities for employees to whom the ID Act does not apply. Such employees shall be governed by the terms of their employment agreement and the S&E Act.