La protección de los trabajadores frente al despido en la historia de la OIT

Abstract

The centrality of the legal regulation of dismissal, in the economy of the contract of employment, but also in the whole system of Labour Law, is indisputable. But regulation of dismissal cannot be considered definitive and lasting over time, as normative solutions must necessarily adapt to changing circumstances. It is precisely for this reason that the work carried out by the ILO throughout history, whose central objective has sought to define the image or framework of this institution, is particularly significant. Since its first actions, its efforts have been aimed at designing the basic features that make the institution recognizable when talking about termination of employment in any legal system and that serve as a guarantee tool to achieve an effective guardianship of workers’ interests in preserving their employment. Although issues related to termination of employment had been the subject of indirect treatment in Conventions and Recommendations since the ILO origins, direct and determined action led by the implementation of a General Study of the problem of termination of the working relationship was not adopted until the thirty-third International Labour Conference in 1950. However, it was not until the early 1960s that that action led to the Recommendation on the termination of employment (No 119). It was based on the principle of flexible adaptation of its guidelines and established a genuine system of guarantees against unjustified dismissal: the need for justification of termination of employment on the initiative of the employer; certain procedural guarantees, the right of appeal and the establishment of measures to remedy the damage caused by termination. It also included a requirement of notice and the issue of a company certificate by the employer. It also established the need for the worker’s income to be protected at the termination of employment. Its last paragraphs were devoted to incorporating rules of social dialogue and administrative control into collective staff reductions. Some years later, in 1982, the Termination of Employment Convention, 1982 (No. 158) and the Termination of Employment Recommendation, 1982 (No. 166) were published, replacing Recommendation No. 119. The Convention became a basic reference in this field. Its central wording is found in article 4, by prohibiting the termination of employment “unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”. In addition, articles 5 and 6 contain a number of reasons that should be specifically considered invalid, relating to trade union or representative activities, the guarantee of indemnity, certain grounds of discrimination or absence on grounds of maternity, illness or injury. Apart from the cause of the dismissal and the necessary description as an invalid reason, the Convention also includes references, as in Recommendation No. 119, to ensure that its guardianship and protection are not merely rhetorical (articles 8-10). It also refers to solutions against dismissal (valid or not) in articles 10 and 12. If termination of employment is described as “unjustified”, preference is given to readmission over compensation. More generally, referring to “any worker whose employment relationship has been terminated”, the option for end-ofservice compensation or replacement income benefits is established. Special rules are also contained in relation to collective redundancies which are complemented by the broad list added by Recommendation No. 166. In spite of the symbolic value of the ILO Convention No. 158, reflected in both article 24 of the European Social Charter (revised) and article 30 of the Charter of Fundamental Rights of the European Union, its success rate has been low. Since its adoption in 1982, it has only achieved 36 ratifications, which seems to be a low number considering that the ILO has 185 Member States. The last ratification was made by Slovakia in 2010. After the denunciation by Brazil, the Convention is in force in only 35 countries. While the protection of the forms of termination of employment remains a concern, dismissal has some particularities and economic projections that make consensus on what comprehensive regulation is or should be in the future significantly difficult. Therefore, it must not be overlooked in an extremely positive way that, at some point in history, the ILO has managed to reach minimum consensus and to bring about a set of provisions in this area. All in all, as expected, consolidating and settling that logic permanently is and will be extremely difficult.