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Chapter Termination

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12 views

Chapter Termination

Uploaded by

Najma Cawil
Copyright
© © All Rights Reserved
Available Formats
Download as PPT, PDF, TXT or read online on Scribd
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Employment Relationship

CHAPTER SEVEN
LEGALPROCEDURES OF EMPLOYMENT
RELATIONSHIP
• BEFORE THE RECRUITMENT- Rights
• DURING EMPLOYMENT –Rights and
Obligations
• AFTER –
• Termination of employment
Employment Relationship
1. Reciprocal rights and Obligation
1. The employment relationship is a legal notion widely used in
countries around the world to refer to the relationship between a
person called an ―employee‖ (frequently referred to as a
worker‖) and an ―employer‖ for whom the ―employee‖
performs work under certain condition in return for
remuneration. It is through the employment relationship,
however defined, that reciprocal rights and obligation created
between the employee and the employer.
2. The employment relationship has been, and continuous to be, the
main vehicle through which workers gains access to the right and
benefit associated with employment in the area of labour law and
social security.
3. It is the key point of reference for determining the nature and
extent of the employers‘ rights and obligations towards their
workers.
2. Scope of Labor Protection
The profound changes occurring in the world of work, and particularly
in the labor market, have given rise to new forms of relationship
which do not always fit withinthe parameters of the employment
relationship. While this has increased flexibility in the labour market,
it has also led to a growing number of workers whose employment
status is unclear and who are consequently outside the scope of the
protection normally associated with an employment relationship. In
2004, the Director-General of the International Labour Office
described the challenge as follows:
• The state has a key role to play in creating an enabling institutional
framework to balance the need for flexibility for enterprise and
security for the workers in meeting the changing demands of a global
economy …
• At the heart of national policies to meet the social challenges of
globalization is a dynamic strategy for managing labour market
change.
3. Legal Framework of Employment
relationship
• The legal framework governing the employment
relationship is an important component of
national policy for managing labour market
change taking account of the need for flexibility
and security.
• The question of the employment relationship
has, in one form or another, been on the
agenda of the International Conference for over
a decade.
Termination of Employment
relationship
Termination of Employment relationship and legal
conditions of Staff Gratuity
• In the context of somaliland labor code provided the below
situations of terminations, as summarized in the below list
with its particular applicable provisions of the law through
notice or without notice :-
1. Termination by law (Art 29) on expiration of the agreed
period of employment
2. Termination by the agreement of the parties (Art.29,44)
see table 1
3. Termination at the initiation of the employer-(Arts.28, 29)
4. Without notice or summary dismissal (Art.29,45)
Resignation
5.Termination at the initiation of the employee-
(resignation)-(Arts.29)

A.Resignation with notice/ordinary resignation


(Art.44, 29,)
B.Resignation without notice (constructive
dismissal) (Art.29)
ILLNESS, INEFFIENCY/INCAPACITY
6. Termination due to illness (Art.29(2) & Art. 21)
7. Termination on grounds of an
inefficiency/incapacity (Art 29(4)
8. Termination due to a force majeure or things
beyond the power of the parties (29(7))
Other Grounds of Termination
8 Other Possible Ground of Termination , There are
included among other grounds of termination,
where it can be one of the following situations;- 1)
Closure of Business, Operations, end of Project or
Programs(Art 61) or elimination of positions or by
redundancy(Art.29,44) . Therefore, if the company
want to take decision for these grounds, the
requirement shall be prior notification given by the
employer to the concerned staff and their
compensation will be taken as provided under
article 25 of the labor law.
Other Grounds
• Termination on disciplinary grounds/dismissal
(Art.45)
• Termination on the ground of death
(Art.25,26)
REDUNDANCY
• Redundancy is one of the most contested and
controversial aspects of employment especially
with regards to economies with unfavorable
economic climates.
• Many employers may sometimes be faced with
the unfortunate challenge of instituting changes
into their business and their business practices in
order to reduce operation costs and inevitably
being forced to make redundancies
Suspension
Suspension is a situation where the employee will not be required to provide service
to the employer and the employer will not be obligated to pay wages and other
benefits to the employee. Nonetheless, their contractual engagement remains
intact. Therefore, suspension is a grey area in the sense that it has attributes of
termination on the one hand and of employment relation on the other hand.

• A contract of employment may be suspended for a variety of reasons. Some of the


grounds are:
1. -Voluntary arrangement of the parties;
2. -Societal interest;
3. -Due to reasons beyond the control of the employer;
4. -Due to disciplinary reasons.
1. Voluntary arrangement

• The employer and the employee may agree to suspend


their contractual relation for sometime. For example, the
employee may get an offer for a better pay for six months
of employment.
• In such case she may request her employer to grant
her/his leave without pay for six months. If the employer
accepted the request, this is a typical case of suspension.
• Within the agreed six months, the employer will not pay
the wages and other benefits to the employee and the
employee will not be required to render service for her
employer.
• At the expiry of the six months period, however, the parties
will be reinstated to their previous employment relation.
2.Suspension for the benefit of
society
• An employee may be elected to hold office at
higher level trade union structure which may
demand full time engagement.
• The other possibility is he may hold office at
Lower position level or he may be elected as
parliamentarian. It is also possible that the
employee may be required to discharge
national service (be it military service or
otherwise)
• In such cases what will be the fate of his contract of employment?
Should it be terminated? Should he be still considered as an
employee and collect wage from the employer even if he is not
rendering service to him? It seems unfair to terminate the contract
of employment of this individual because he is rendering service
which is important to society at large and should not be sanctioned
for that. Individuals should be encouraged to serve society. This can
be achieved by ensuring employment security to such individuals.
• Should the employer then be required to pay him wages while the
employee is not rendering service to him? This is again unfair to the
employer because as the service is being rendered to society at
large it should be society which should incur such costs and not the
employer individually.
3. Suspension due to reasons beyond
the control of the employer
• At times situations which will have an impact
of temporary cassation of activities of the
• undertaking may occur. Most of these
situations are economic reasons
• Financial problem may also be a ground for
temporary cassation of operations.
4. Disciplinary Suspension
One of the prerogatives of an employer is to take
disciplinary action against an employee. The employee
on its part is required to render faithful service to the
employer. Failure to observe such faithfulness may
subject the employee to disciplinary action.
But prior to taking action, the employer is expected to
undertake the necessary investigation into alleged
misconduct of the employee. Until such time the
investigation is completed, it may be appropriate to
suspend the employee so that investigation could go
smoothly
Consequences of Expirty of Period of
Suspension
• Normally as soon as the duration for suspension expires,
the employee will be reinstated to his/her previous
employment. But there may also be circumstances where
suspension may be transformed into termination. For
instance, in case of disciplinary suspension (e.g. if the
outcome of the investigation shows a serious misconduct
attributed to the employee), the contract of the suspended
employee may be terminated.
• In case of suspension for reasons beyond the control of the
employer, particularly suspension due to economic
reasons,(e.g. if the undertaking cannot resume operation
within ninety days) suspension will be transformed into
termination.

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