Answer ... Yes. After the end of the probation period, dismissals that cannot be justified under any one of the grounds below are considered unlawful per se:
- unsatisfactory performance (excluding temporary incapacitation due to illness, injury or childbirth);
- force majeure, act of war, civil commotion or act of God;
- termination at the end of a fixed period;
- conduct which renders the employee subject to summary dismissal; or
- conduct which makes it clear that the relationship between employer and employee cannot reasonably be expected to continue, commission of a serious disciplinary or criminal offence, indecent behaviour or repeated violation or ignorance of employment rules.
There is a statutory period of 26 weeks of continuous employment, which may be extended to two years by agreement.
Answer ... Yes. Written notice of termination must be given to the employee outlining the reasons for the dismissal and the effective date of termination.
According to the Termination of Employment Law, the statutory minimum notice period varies from one to eight weeks according to the employee's period of continuous employment, as follows:
- No notice for up to 26 continuous weeks’ employment;
- One week’s notice for 26 to 52 continuous weeks’ employment;
- Two weeks’ notice for 52 to 104 continuous weeks’ employment;
- Three weeks’ notice for 104 to 156 continuous weeks’ employment;
- Five weeks’ notice for 156 to 208 continuous weeks’ employment;
- Six weeks’ notice for 208 to 259 continuous weeks’ employment;
- Seven weeks’ notice for 260 to 311 continuous weeks’ employment; and
- Eight weeks’ notice for 312 continuous weeks’ employment or more.
Otherwise, compensation for immediate termination can be paid in lieu of notice.
Dismissal without notice or payment in lieu of notice can take place only in the following circumstances:
- The employee's conduct has rendered the employee subject to summary dismissal;
- The employee's conduct indicates that the relationship between the employer and employee cannot reasonably be expected to continue under the circumstances;
- The employee has committed a serious disciplinary or criminal offence;
- The employee has behaved indecently; or
- The employee has repeatedly violated or ignored employment rules.
Answer ... Employees are generally protected from dismissal for any reason that is not a legally justified ground for dismissal. Furthermore, it is a criminal offence to dismiss a pregnant employee from the time of presentation with a doctor's certificate of pregnancy up to five months after the end of maternity leave. There are similar protections from dismissal for employees on paternity leave, parental leave or leave on the grounds of force majeure.
It is also illegal to dismiss an employee on leave due to an incapacity throughout the period of sick leave (up to one year) plus a further one-quarter of the sick leave period, unless certain conditions are satisfied.
Finally, an employer cannot dismiss an employee based on:
- religious beliefs;
- nationality; or
- social origin
- political or other beliefs;
- sexual orientation;
- ethnic origin; or
An unfairly dismissed employee can bring a claim for damages for unlawful or wrongful dismissal at the Industrial Disputes Tribunal, which has exclusive jurisdiction to determine matters arising from the contract of employment and termination. Please see question 5.4 for minimum payable damages, which may be aggravated on grounds of loss of career prospects, age and specific circumstances surrounding the case. Alternatively, an employee has the right to file a claim for breach of contract with the district courts if the claim exceeds the equivalent amount of two years' salary (which is the maximum amount of compensation that can be ordered by the Industrial Disputes Tribunal).
In addition, an illegally dismissed employee who has not been given notice of termination is entitled to payment in lieu of notice, which is calculated based on the scale mentioned above in question 5.2.
In cases of unlawful termination of employment, and provided that the employer's total workforce exceeds 19 persons, the Industrial Disputes Tribunal can order the employer to redeploy the employee. However, this discretionary power is rarely exercised.
Answer ... The minimum statutory compensation for unlawful dismissal payable by the employer depends on the period of continuous employment and is calculated in the same way as compensation for redundancy. This compensation is calculated in accordance with Table 4 of the Termination of Employment Law, which provides as follows:
- two weeks' wages for each year of service up to four years;
- two-and-a-half weeks' wages for each year of service from five to 10 years;
- three weeks' wages for each year of service from 11 to 15 years;
- three-and-a-half weeks' wages for each year of service from 16 to 20 years; and
- four weeks' wages for each year of service beyond 20 years.
In cases of lawful termination of employment due to redundancy, an employee is not entitled to compensation from the employer. In such case the employee is entitled to compensation from the state-administered Redundancy Fund, to which all employers pay monthly contributions.
The maximum amount of compensation that the Industrial Disputes Tribunal is entitled to award is two years of the claimant's salary. Depending on the circumstances of the case, the tribunal may award any amount between the minimum (which is calculated in the same way as compensation for redundancy) and the maximum (two years' salary). Before deciding, the tribunal will consider the employee's age, career prospects and all circumstances of termination. Any payment in excess of one year's wages is payable to the employee by the state-administered Redundancy Fund, not by the employer.