Dismissal Protection in the Brics Countries in Light of ILO con Vention No. 158

AuthorE. Sychenko - M. Laruccia - D. Cusciano - I. Chikireva - L. Wenpei - P. Smit
PositionSaint Petersburg State University (Saint Petersburg, Russia) - Jorge Duprat Figueiredo Foundation for Safety and Occupational Health at Work (Fundacentro) and Pontifical Catholic University of São Paulo (São Paulo, Brazil) - Jorge Duprat Figueiredo Foundation for Safety and Occupational Health at Work (Fundacentro) and Getúlio Vargas Foundation...
Pages34-66
BRICS LAW JOURNAL Volume VI (2019) Issue 4
DISMISSAL PRoTECTIon In THE BRICS CounTRIES
In LIGHT oF ILo ConVEnTI on no. 158
ELENA SYCHENKO,
Saint Petersburg State University (Saint Petersburg, Russia)
MAURO LARUCCIA,
Jorge Duprat Figueiredo Foundation for Safety and Occupational Health
at Work (Fundacentro) and Pontical Catholic University of São Paulo
(São Paulo, Brazil)
DALTON CUSCIANO,
Jorge Duprat Figueiredo Foundation for Safety and Occupational Health
at Work (Fundacentro) and Getúlio Vargas Foundation
(São Paulo, Brazil)
LI WENPEI,
China University of Labor Relations (Beijing, China)
IRINA CHIKIREVA,
Tyumen State University (Tyumen, Russia)
PAUL SMIT,
North-West University (Potchefstroom, South Africa)
https://doi.org/10.21684/2412-2343-2019-6-4-34-66
The BRICS countries have aspirations to achieve sustainable development in their
economies and environmental protection. These aspirations have an important social
aspect in the area of employment protection as it relates to ensuring fair development.
In order to establish national standards for dismissal protection in four of the BRICS
countries (Brazil, Russia, China and S outh Africa) the authors have considered the
legislation and relevant national case law. This paper includes a review of International
Labour Organisation (ILO) standards of dismissal protection, which are used as a pattern
ELENA SYCHENKO, MAURO LARUCCIA, DALTON CUSCIANO, LI WENPEI, IRINA CHIKIREVA, PAUL SMIT 35
for comparison. The paper consists of ve parts: the rst deals with the histor y and
explores the legal standards adopted in the ILO Convention No. 158; the remaining four
parts present the research on each of the national dismissal protection systems in the
four BRICS countries under study. The authors conclude that even though the national
systems are dierent and have dissimilar scopes in respect of dismissal protection, their
regulations are largely in line with the Convention, which has not been ratied by any of
the BRICS countries; and that international instruments even without ratication may
be a helpful instrument for shaping the national system of dismissal protection, and for
providing guidance to policymakers and legislators.
Keywords: dismissal protection; BRICS; ILO; redundancy; justied dismissal; remedy.
Recommended citation: Elena Sychenko et al., Dismissal Protection in the BRICS
Countries in Light of ILO Convention No. 158, 6(4) BRICS Law Journal 35–66 (2019).
Table of Contents
Introduction
1. ILO Termination of Employment Convention (No. 158)
2. BRICS Countries’ Regulations Relating to Dismissal Protection
2.1. Brazil
2.2. Russia
2.3. China
2.4. South Africa
Conclusion
Introduction
The recent development of BRICS cooperation demonstrates that the eld of
employment protection and achieving social justice is one of the signicant spheres
for this union. The BRICS countries met in Russia in 2016 to discuss core labor and
employment issues. A year later the BRICS Labour and Employment M inisters’
Declaration was adopted,1 which underlined the need to enhance employment
protection and ensure the transition to formal labor markets, emphasizing in
particular the value of social dialogue. This document was warmly welcomed by
International Labour Organisation (ILO) Direc tor-General Guy Ryder, as it is in line
1 BRICS Labour and Employment Ministers’ Declaration, Chongqing, China, 27 July 2017 (Oct. 19, 2019),
available at https://www.ranepa.ru/images/media/brics/china2016/BRICS%20MD%200725-EWG%20
Meeting.pdf.
BRICS LAW JOURNAL Volume VI (2019) Issue 4 36
with ILO values.2 The BRICS declaration adopted in Xiamen on 4 September 2017
reected partly the minister’s statements. Thus it rearmed the commitment to
fully implementing the 2030 Agenda for Sustainable Development.3 The heads of
the BRICS states underlined the aspirations to achieve sustainable development
in its three dimensions – economic, social and environmental – in a balanced and
integrated manner. It was also stated that the establishment of sustainable peace
requires a comprehensive, concerted and determined approach, based on mutual
trust, mutual benet, equity and cooperation, that addresses the causes of conicts,
including their political, economic and social dimensions.4 These words are consonant
to the preamble of the ILO Constitution:
Whereas universal and lasting peace can be established only if it is based
upon social justice; … Whereas also the failure of any nation to adopt humane
conditions of labour is an obstacle in the way of other nations which desire
to improve the conditions in their own countries.5
Employment protection is traditionally built upon three pillars: antidiscrimination
policy, fair and safe working conditions and dismissal protection. The present paper
will research the peculiarities of the latter in the BRICS countries, namely in Russia,
China, Brazil and South Africa. The analysis of the national legislation and the relevant
case law will be organized on the sample of dismissal protection provided by the
ILO in the ILO Termination of Employment Convention (No. 158) which was adopted
in 1982, entered into force on 24 November 1985. This Convention was not ratied
by none of the BRICS states, however, as a certain benchmark, it provides us with
standards which will be used for comparing the national approaches to dismissal
protection. The paper consists of ve parts: the rst deals with the history and explore
the legal standards adopted in the Convention, other four parts present the research
of national dismissal protection systems in the four BRICS countries.
2 ILO head praises BRICS countries’ commitment to social dialogue, International Labour Organization,
3 August 2018 (Oct. 19, 2019), available at https://www.ilo.org/moscow/news/WCMS_636211/lang--
en/index.htm.
3 This armation was also repeated in the most recent 10th BRICS Summit Johannesburg Declaration,
adopted on 26 July 2018 (Oct. 19, 2019), available at https://www.mea.gov.in/bilateral-documents.
htm?dtl/30190/10th_BRICS_Summit_Johannesburg_Declaration.
4 BRICS Leaders Xiamen Declaration, Xiamen, China, 4 September 2017 (Oct. 19, 2019), available at
https://brics.mid.ru/en_GB/document/-/asset_publisher/VmQiTl1AUALV/content/samen-skaa-
deklaracia-rukovoditelej-stran-briks-samen-kitaj-4-sentabra-2017-goda?redirect=%2Fen_GB%2Fdo
cuments&inheritRedirect=true.
5 ILO Constitution (Oct. 19, 2019), available athttps://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::
NO:62:P62_LIST_ENTRIE_ID:2453907:NO. These words were also part of the Nobel lecture delivered
by David A. Morse, who spoke on behalf of the International Labour Organisation in 1969 (Oct. 19,
2019), available at https://www.nobelprize.org/prizes/peace/1969/labour/lecture/.

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