Notification to the worker to be dismissed: no specific form required
Art. 55 LC: The dismissal must be communicated to the worker by the employer or by his/her representatives, otherwise it is considered null and void, except when a written letter of dismissal signed by the employer or his/her representatives is delivered to the employee.
However, note art. 60. At the end of any contract, whatever the cause that motivated its termination, the employer must give written notice to the employee expressing: 1) starting and termination date of its work 2) type of work undertaken 3) last salary earned.
If the worker demands so, it can also include: 4) description of the worker’s efficiency and behaviour 5) reason of termination of contract.
Note that: it is not the official notification of the worker’s dismissal, it is rather a complementary document to the end of the contract.
tenure ≥ 6 months:
tenure ≥ 9 months:
tenure ≥ 2 years:
tenure ≥ 4 years:
tenure ≥ 5 years:
tenure ≥ 10 years:
tenure ≥ 20 years:
Pay in lieu of notice: No
Notification to the public administration: No
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
However, prior authorization from the competent jurisdictional authority is required for the dismissal of a worker covered by trade union immunity (art. 248 LC and 47 of the Constitution).
Approval by workers' representatives: No
There are no statutory notice periods to be observed in the event of dismissal.
Definition of collective dismissal (number of employees concerned):
No statutory definition of collective dismissal for economic reasons.
Art. 49The LC foresees termination of employment with no liability on the part of either party in the following cases:
- closure of all or part of the undertaking or establishment, or final reduction of the activities, resulting from the unprofitably of the business and authorized by the competent labour judge.
- business closure caused by the exhaustion of the substance exploited by the extractive industry and authorized by the labour judge.
In addition, the LC (art. 48) provides for termination without judicial intervention in the event of:
- dissolution of the undertaking in case the business has ended, orf an undertaking
- partial or total cessation of activities following bankruptcy , when it has been decided by the Trade Union or the Board of Creditors, and considered fortuitous and not negligent.
With the exception of those reasons, economic reasons are not considered to be a good cause for dismissal. Therefore dismissal based on economic reasons will be treated as de facto dismissal "despido de hecho" and will entail payment of compensation for unjustified dismissal.
See art. 48 and 49 LC.
Prior consultations with trade unions (workers' representatives): No
Notification to the public administration: No
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
However, prior judicial authorization is required in the folllowing cases:
- closure of all or part of the undertaking or establishment, or final reduction of the activities, resulting from the unprofitably of the business;
- business closure caused by the exhaustion of the substance exploited by the extractive industry (art. 49 LC).
Approval by workers' representatives: No
Priority rules for collective dismissals (social considerations, age, job tenure): No
Employer's obligation to consider alternatives to dismissal (transfers, retraining...): No
Priority rules for re-employment: No
Severance pay:
According to article 58 of Labour Code, in case the termination of employment contracts occurs without a cause, the worker is entitled do 30 days of salary per year of service or respective fraction of it, not less than 15 days of salary. The parameters to the calculation of severance pay must consider the salary as a maximum amount of 4 times the statutory minimum wage.
tenure ≥ 6 months: 15 day(s)
tenure ≥ 9 months: 22.5 day(s)
tenure ≥ 1 year: 30 day(s)
tenure ≥ 4 years: 120 day(s)
tenure ≥ 5 years: 150 day(s)
tenure ≥ 10 years: 300 day(s)
tenure ≥ 20 years: 600 day(s)
Redundancy payment:
tenure ≥ 6 months: 0 month(s)
tenure ≥ 9 months: 0 month(s)
tenure ≥ 1 year: 0 month(s)
tenure ≥ 2 years: 0 month(s)
tenure ≥ 4 years: 0 month(s)
tenure ≥ 5 years: 0 month(s)
tenure ≥ 10 years: 0 month(s)
tenure ≥ 20 years: 0 month(s)
1) Dismissal with cause (conduct or capacity related): no severance pay See art. 50, 51 and 52 LC which state that there is no employer’s responsibility.
2) De facto dismissal (dismissal without cause): compensation for unjustified dismissal equivalent to 30 day's pay for each year of service (or fraction) with a minimum of 15 days' pay. (Art. 58 LC)
As already indicated, any dismissal for economic reasons which do not fall within the limited categories specified in the LC (see above 'Definition of collective dismissal') will be treated as a 'de facto dismissal' and will therefore entail payment of compensation for unjustified dismissal by the employer.
Compensation for unfair dismissal - free determination by court: No
Art. 58 LC.
Compensation for unfair dismissal - Are there legal limits?: Yes
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
See article 58 of Labour Code above (compensation for unfair dismissal on the basis of 30 days of salary per year of lenght of service. The calculation will take into account a salary basis not higher than 4 times the minimum wage).
In addition, the employee is entitled to receive back pay which shall accrue from the date of the complaint until the court decision. However it shall not exceed 35 days' wages (increased by max. 20 days if the case goes to appeal or cassation).
2) According to article 59 of Labour Code, when a FTC worker is dismissed without just cause before the expiration of the contract, the employer has pay compensation which shall amount to the wages the worker would have been entitled to until the expiry of the FTC.
Art. 58 LC.
Reinstatement available: No
The Labour Code does not provide for the reinstatement of workers who have been unfairly dismissed.
Preliminary mandatory conciliation: Yes
Only in dismissals that lead to judicial procedure. Art. 385 LC.
Competent court(s) / tribunal(s): labour court
Art. 369 LC - "los jueces laborales" in first instance and "las Cámaras de lo Laboral" in second instance.
Existing arbitration: No
Arbitration is only foreseen for the settlement of collective disputes. due to economic or interest reasons. (Art. 480 and 500-514 LC).
Note that art. 24 Conciliation, Mediation and Arbitration Act excludes labour disputes from its scope of application.
Burden of Proof: both
Article 414 (1) Labour Code.