Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Termination of Employment Convention, 1982 (No. 158) - Venezuela (Bolivarian Republic of) (Ratification: 1985)

Article 8 of the Convention. Procedure of appeal against unjustified dismissal. The Committee notes the observations received in August 2014 in which the International Organisation of Employers (IOE) and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS) express renewed concern at the inefficiencies in the productivity of enterprises caused by the reinstatement procedure provided for in the Basic Act concerning labour and male and female workers (LOTTT), which has been in force since May 2012, and by the guarantee of employment security decreed by the Government. In reply to these observations, in two communications received in November 2014, the Government refers to the information contained in its 2011 report and maintains that the labour inspection services have to handle more than 42,000 complaints of unlawful dismissal each year. The Government also refers to the procedure for reinstatement and restoration of rights established by section 425 of the LOTTT, which concerns workers who have been dismissed despite enjoying protection against dismissal or trade union immunity. FEDECAMARAS and the IOE reiterate that the provisions of the LOTTT and national practice do not allow employers to terminate an employment relationship with the due protection provided for by the Convention. According to FEDECAMARAS and the IOE, the labour inspectorate must first examine the grounds given for the dismissal and this may result in a request for reinstatement from the labour inspectorate (section 425(2) of the LOTTT). According to FEDECAMARAS and the IOE, the labour inspectorate only takes account of the worker’s allegations and approves reinstatement and the payment of outstanding wages or simply reinstatement in the post. If an employer opposes the reinstatement order from the labour inspectorate, he commits contempt of court, an offence for which he may be arrested (section 425(6) of the LOTTT). Furthermore, under section 425(9) of the LOTTT, an employer can only appeal against the reinstatement order after he has complied with it. FEDECAMARAS and the IOE stress that the labour inspectorate takes two, three or even more years to decide on cases of justified dismissals effected by employers, which means that dismissals are becoming more expensive for employers, even in justified cases. FEDECAMARAS and the IOE consider that the legislation and procedures relating to protection against dismissal, reinstatement and payment of outstanding wages should be revised, so that they not only ensure the protection of dismissed workers, even in justified cases, but also guarantee employers’ right to submit their defence in a timely manner and to dismiss with justification those workers who fail to fulfil their employment obligations. The Committee invites the Government to provide information enabling an appraisal of the manner in which effect is given in national law and practice to Article 8 of the Convention, which requires the existence of a procedure for appeal to an impartial body against unjustified termination.

The Committee refers to its observations of 2011 and 2013 and requests the Government to provide information on the manner in which the Convention is applied, adding details of the activities of the appeal bodies relating to appeals against justified dismissal, the outcome of such appeals and the average time taken for an appeal to be decided (Part V of the report form). The Committee invites the Government to provide examples of recent court rulings handed down in relation to the definition of justified reasons for dismissal (Part IV of the report form).

[The Government is asked to reply in detail to the present comments in 2015.]