Dismissal of an employee due to the lack of good performance or ethical issues according to the Iranian law
The present article has been prepared by Iran best Lawyer in order to provide you with our analysis on the Iranian employment agreements in light of dismissal of an employee because of his poor performance and behavior in accordance to the Iranian laws and regulations.
Summary:
In the event of the unlawful disobedience by the employee from the rightful instructions of the employer, such as unjustified absence at the workplace, regular delay or etc. the employer may enjoy from the application of the provisions of Article 27 of the Iran Labor Law (the “ILL”) as well as the Instruction No. 25138 of the Ministry of Labor and Social Affairs.
In the event that the employer cannot provide the labor court with the adequate evidences supporting the eligibility of the dismissal, the court may rule on “return to work” in favor of the employee. Moreover, the financial rights of the employee, for the duration of the unlawful dismissal, should be reimbursed by the employer.
Article 27 of the ILL:
According to Article 27 of the ILL, the following conditions, in the collective manner, should be met to ensure that the dismissal of an employee is lawful:
- The employee neglects to perform his obligations based on the employment agreement and/or breach the disciplinary code of the workplace;
- The employer notifies the employee from his poor performance or behavior via the written notices (the number of the required notices has not defined by the law, however, in practice, at least three notices are required to convince the court that the employee was already aware of the non-satisfaction of the employer prior to the date of dismissal).
- Obtainment of the assenting opinion of the Islamic labor Council of the workplace or the representative of the employees in the workplace. According to Note 1 of the aforesaid article, in the absence of the organs named in this paragraph, the labor court of first Instance may finally decide regarding the legal status of the dismissal. Therefore, the existence of the above-mentioned organs is not necessary for fulfillment of the legitimate dismissal. (In practice, the prior approval of the labor court has not been achieved for dismissal and the case merely referred to the court after dismissal through a complaint from the ex-employee).
- Upon dismissal, the severance fees of the ex-employee amounting to one month of his current salary per each year of his seniority, shall be paid to him by the employer.
The Instruction No. 25138 of the Ministry of Labor and Social Affairs (the “Instruction”)
According to the Instruction, quit work could be considered as the unilateral termination of the employment agreement by the employee. Considering the paragraph 3 of the Instruction, the difference between the quit work and a simple absence at the workplace is in the intention of the employee. In the quit work, the employee is not willing to back to his previous job.
In practice, in the event that the employee does not respond to the request of the employer asking him to return to work, the court may conclude that the employee has quit his job and therefore, the employer has the right of dismissal.
DISMISSAL OF AN EMPLOYEE FOR THE LACK OF APPROPRIAT PERFORMANCE OR BEHAVIOR
Dismissal of an employee by virtue of Article 27 of the ILL
The four conditions, as clarified above, for legitimate dismissal should be met in the collective manner.
The probable risk of unlawful dismissal for the employer
In the event of the failure of the employer to provide the labor court with the adequate supporting evidences as clarified by Article 27 of the ILL, to justify the dismissal, the court may decide in favor of the employee by issuance of the decision of the “return to work”.
In such an event, in addition to the above-mentioned decision, the court may condemn the employer to pay the financial rights of the employee e.g. salary, allowances fees and insurance fees for the duration of suspension (i.e. the duration between unlawful dismissal and the decision of the court).
Replacement of the ex-employee after dismissal
There is no special provision concerning the matter of replacement of the dismissed employee. The employer at its own discretion, may hire another employee with the similar or dissimilar work conditions. The position of the ex-employee also could permanently remain vacant.
Notwithstanding the above, considering the risk of the issuance of a decision by the court to return to work in favor of the dismissed employee, we may suggest to suspend the process of replacement recruitment upon the date of final decision of the labor court in order to avoid having two employees in the same position.
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