References
Labor Code [LC], consolidated version, DFL No. 1, as last amended by Act 20684 (Ley 20684) of 23 August 2013 (Código del Trabajo, texto refundido, coordinado y sistematizado - available in Spanish only)
Date:
22 Aug 1970;
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Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: state security corps, civil/public servants, police, army, judiciary, diplomats
See art. 1 LC: the LC does not apply to civil servants employed in centralized or decentralized state administration, the National Congress and Judiciary, or to workers in state undertakings or institutions or workers employed in bodies to which they contribute, participate or are represented, provided that such workers are governed by a special law (i.e. the Administrative Statute, Act No. 18834).
The provisions of the LC apply to those aspects not regulated by these special statutes, such as the area of maternity protection.
Independent workers are also excluded (Art. 8), except where the LC refers specifically to them.
Services rendered by persons who work either directly with the public, or intermittently or sporadically at home, are not considered as involving employment contracts, and therefore fall outside the LC (Art. 8). Graduates of institutions of higher education or professional technical training programmes, for a specified period, are also excluded while they are fulfilling work-experience requirements.
Contracts for apprentices, agricultural workers, stevedores, seafarers and casual port workers, and workers in private homes (domestic workers), artists and people working in the entertainment industry, sports professionals and related jobs and pilots and crew members are covered as special contracts under Title II of the LC.
Note that with respect to termination, there are specific rules for (161 LC):
- domestic staff;
- persons occupying positions of trust; and
- persons representing the employer, such as managers, assistant managers, agents or other types of representatives, provided that they have general administrative competence.
FTC regulated: Yes
Valid reasons for FTC use: no limitation
: 2
Art. 159 LC stipulates that fact of working after the expiration of a FTC transforms the FTC in an open-ended contract. The same effect is produced by the second renewal of a FTC.
Maximum cumulative duration of successive FTCs: 12month(s)
Art. 159 LC: Fixed-term contracts may be made for a maximum duration of one year (art 159 LC). One renewal is possible, provided that the maximum cumulative duration does not exceed 1 year.
As an exception, a FTC may last up to 2 years in case of managers or individuals with a professional or technical degree. One renewal is possible, provided that the maximum cumulative duration does not exceed 2 years.
If a worker is employed intermittently for 12 months or more under 2 or more FTC within a period of 15 months, which starts to count from the first appointment of the worker, there will be a legal presumption of an open ended contract.
Maximum probationary (trial) period (in months):
no limitationNo provision on probationary period in the Labour Code.
Obligation to provide reasons to the employee: Yes
Valid grounds (justified dismissal):
Prohibited grounds: marital status, pregnancy, maternity leave, race, colour, sex, religion, political opinion, social origin, nationality/national origin, age, trade union membership and activities, disability, financial status
- Art. 161 LC prohibits the dismissal grounded on economic reasons and the "desahucio" in the following cases:
* Workers on sick leave
* Workers on temporary work injury or illness leave
- Article 194 LC establishes that the employer cannot terminate the employment of the worker because of pregnancy.
- Article 2 also establishes that the financial status or debts by the employee cannot be taken into account by the employer as a condition to hire a worker.
- Art. 161bis LC provides that total or partial invalidity cannot be a just cause for termination of employment.
- Some union members, pregnant women and women returning from maternity leave enjoy protection against termination of employment under the "fuero laboral" in some circumstances (see special protection). This means that their dismissal must be authorized by a judge and can only take place on the grounds on conduct (see art. 174, 201, 243, LC)
- Race, color, sex, age, marital status, union association, religion, politic beliefs, nationality and social origins are prohibited grounds of discrimination in employment (art. 2 LC: general provision on non-discrimination in employment).
Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave, workers with family responsibilities, workers on temporary leave following an occupational disease or a work injury
- Under the LC, some workers benefit from the 'fuero laboral', which is a form of special protection against termination of employment. According to art. 174 LC, dismissal of those protected workers is subject to judicial authorization which can only be granted on the grounds of the worker's conduct or upon expiry of the agreed term of the contract or completion of the service for which the contract was made (art. 159, 160 LC).
Workers protected by the 'fuero laboral' are:
*Workers whose child/spouse/civil partner has died. They will enjoy the protection for one month after the death (article 66);
* Workers who want to constitute a trade union in the company. They will be protected from 10 days prior to the constituent assembly until 30 days after (article 221);
*Candidates for a union director position. They will be protected since the election date is set until the election is completed (article 238);,
* Union directors and directors of federations, confederations, and workers' centrals during their terms of office and for six months thereafter (articles 224, 235, 243 and 274);
* Employees involved in collective bargaining during the period starting 10 days before bargaining begins and ending 30 days after bargaining is completed (article 309);
* Staff delegates during their terms of office and for six months thereafter (articles 229 and 243).
* Pregnant women and working mothers up to one year after the end of the maternity leave (article 201);
* Working father if he has taken parental leave (articles 197bis and 201);
* Women and men who are single or widowed and they have expressed their wish to adopt a child according to the Adoption Act shall be entitled to one year's "protection from the day of the judicial decision granting the child' custody (article 201).
- Art. 161 LC prohibits the dismissal grounded on economic reasons and the "desahucio" in the following cases:
* Workers on sick leave
* Workers on temporary work injury or illness leave
Notification to the worker to be dismissed: written
See art. 161 and 162 LC.
Notice period:
- Dismissal without cause (desahucio) of persons in positions of trust, representatives or domestic staff must be carried out in writing, 30 days in advance except if the employer pays the worker cash compensation equivalent to the last monthly remuneration earned. Copy of the notice shall be sent to the relevant labour inspectorate (art. 161 LC)
- Dismissal based on the requirements of the undertaking: the worker must be given notice, copied to the relevant inspectorate, at least 30 days in advance (art. 162 LC).
- No notice period to be observed if the employee is dismissed for conduct-related reasons as listed in art. 160 LC.
Pay in lieu of notice: Yes
- Economic dismissal: art. 162 LC
- Desahucio: art. 161 LC
Notification to the public administration: Yes
Notification to the Labour Inspectorate, at the time the worker receives the dismissal notice is required for any type of dismissal.
* Conduct-based dismissal: art. 162
* Dismissal based on the requirements of the undertaking: art. 162 LC.
* Dismissal without cause in the cases established in article 161 (desahucio): art. 161 LC.
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
However, judicial authorization is required when the employer intends to dismiss workers who benefit from the "fuero laboral" (art. 174 LC - see special protection)
Approval by workers' representatives: No
Definition of collective dismissal (number of employees concerned) No statutory definition of collective dismissal for economic reasons.<br/>The LC stipulates that an employer can terminate a contract on the grounds of requirements of the undertaking, establishment or service, resulting from streamlining or modernization activities, reduced productivity, changes in market or economic conditions which impose the need to lay off <b>one or more workers</b>.
Art. 161 (1) LC.
Notification to the public administration No
Notification to trade union (workers' representatives) Yes
Art. 162 LC: notification to the Labour Inspectorate at least 30 days in advance. Notification shall take place prior to any dismissal (concerning 1 or more workers) based on operational requirements of the undertaking as defined in art. 161 (1) LC.
Notification to workers' representatives: No
Approval by trade union (workers' representatives) No
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
:
- Upon dismissal without cause (by way of desahucio), the workers are entitled to a statutory severance pay -Indemnización legal por años de servicio - (unless an individual or collective agreement is made with more favourable terms) equivalent to 30 days of the last monthly remuneration earned, for each year of service worked and fraction greater than six months. The upper limit is 330 days for workers with a contract in force for one year or more (sec. 163, LC). This applies to persons occupying positions of trust and persons representing the employer having general administrative competence. However domestic workers are entitled to a different indemnity.
- The same amount is payable to a worker whose contract is terminated on the basis of the requirements of the undertaking (see below redundancy payment)
- Upon termination of employment, regardless of the reason for termination, domestic workers are entitled to an indemnity to be funded by the employer's contributions to an insured pension fund equivalent to 4.11% of the monthly remuneration. The employer's contributions shall be paid for a period of 11 years which shall run from obligation to pay such contribution shall be for a period run from 1 January 1991 or the start date of employment, whichever is later (art. 163 LC).
- There is a possibility for an agreement on a substitute termination indemnity (see below - "Notes / Remarks")
Note that dismissals based on the worker's conduct (art. 160 LC) do not give right to severance pay.
Similarly severance pay is not payable in the event of termination upon expiry of the agreed term of the contract or completion of the service for which the contract was made, termination due to force majeure or unforeseen event, resignation, mutual agreement, resignation or the death of the worker.
: 0 day(s)
: 0 day(s)
: 30 day(s)
: 60 day(s)
: 120 day(s)
: 150 day(s)
: 300 day(s)
: 330 day(s)
:
Same as severance pay.
*Art. 163 LC foresees that, in case of dismissal for the economic reasons listed in art. 161 LC, dismissed workers who have been working for at least 1 year are entitled to severance pay. This indemnity (unless an individual or collective agreement is made with more favorable terms) shall amount to 30 days of the last monthly remuneration earned, for each year of service worked and fraction of a year greater than six months. The upper limit is 330 days for workers with a contract in force for one year or more (see art. 163 LC).
*See also substitute indemnity below under "Notes / Remarks"
: 0 day(s)
: 0 day(s)
: 30 day(s)
: 60 day(s)
: 120 day(s)
: 150 day(s)
: 300 day(s)
: 330 day(s)
mine workers: No
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): Compensation = severance pay (30 pays/year of service with a maximum of 330 days) increased by:<br/>- 30% if a dismissal based the requirements of the undertaking is declared unjustified, unfair or unlawful by the court.<br/>- 50 % if the court rules unjustified termination of employment due to unforeseen circumstances or force majeure;<br/>- 80% if a dismissal based on unduly conduct or serious breach of obligations set forth in the contract is declared unjustified<br/> - 100% if the alleged reasons for dismissal are serious misconduct, acts or negligence seriously affecting the safety of the establishment and deliberate material damages (art. 160, 1), 5) 6) LC) and the court rules that there were no plausible grounds for dismissal.
See art. 168 LC.
managerial / executive positions: Yes
There is no general right to reinstatement following unfair dismissal.
However reinstatement is available to the worker in the event of discriminatory dismissal (that is dismissal based on: race, colour, sex, age, marital status, union association, religion, politic beliefs, nationality and social origin) and which is declared serious by the court: see art. 489 LC.
Similarly, if a worker who is not protected under the "fuero laboral" is dismissed as the result of anti-union or unfair labour practices, he or she can opt for reinstatement (art. 294 LC).
police: Yes
- Judicial conciliation is part of the procedure before the labour jurisdiction: art. 453 2) LC.
- Small claims proceedings (procedimiento monitorio) = value not exceeding 10 months' wages: mandatory extra-judicial conciliation before the Labour Inspectorate (art. 497 LC)
Art. 420 a) LC: 'Juzgados de Letras del Trabajo'
Existing arbitration: No