References
Labour Code, 1943
Date:
1 Jan 1970;
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Law against Sexual Harassment in Employment and Teaching
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Code of Civil Procedure
Date:
1 Jan 1970;
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Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: civil/public servants
Notes / Remarks
Art. 14 LC subsection c): The Labour Code is exempted from applying to agricultural or livestock farms that permanently occupy no more than five workers. However, the Executive Power may determine through decrees which rules of this Code will be applied to them. For this purpose, it will begin with those that do not imply economic assessment for employers.
However, it was considered unenforceable by resolution of the Supreme Court of Justice of July 22, 1954
Art. 14 LC: Public officials subject to a public employment relationship are governed by the civil service rules established in the General Law of Public Administration and the Civil Service Statute. In the absence of express regulations that regulate certain aspects, the provisions established in the CT are applicable in a supplementary manner to them.
Reforms under process:
Since 1998, a Labour Code Reform has been studied to reform particulary the labour court proceedings. The projects have been amended and discussed at the National Congress.
FTC regulated: Yes
Articles 26 of Labour Code provides that the fixed-term employment contract can only be agreed when the nature of the work merits it. In the same way, this type of contract can be carried out before occasional and extraordinary work. On the contrary, it cannot be agreed when the work is of a permanent nature.
Valid reasons for FTC use: objective and material reasons
See Article 26 above.
Maximum number of successive FTCs: no limitation
Arts. 26 and 27 Labour Code: The fixed-term or fixed-term contract must be stipulated for a period not exceeding one year. For the determination of said time, the extensions made to the employment contract must be taken into consideration. If special technical preparation is necessary to carry out the work, the employment contract can be extended for up to five years.
However, if the nature and cause of the work remain at the end of the employment contract for a certain period of time and the hiring is not renewed, it will be interpreted for the benefit of the worker as an employment contract for an indeterminate period and the payment of the corresponding workers' compensation will proceed. The foregoing would proceed even if the year of seniority is not exceeded.
Maximum cumulative duration of successive FTCs: 1year(s)
Arts. 26 and 27 Labour Code: The fixed-term or fixed-term contract must be stipulated for a period not exceeding one year. For the determination of said time, the extensions made to the employment contract must be taken into consideration. If special technical preparation is necessary to carry out the work, the employment contract can be extended for up to five years.
Maximum probationary (trial) period (in months):
The trial period is not regulated by the legal system. However, the trial period is often confused with the initial term of three months in the contracts for an indefinite period, in which it is possible to terminate the employment relationship, without the employer having to pay the notice and severance pay, accoridng to article 28 (a) of the Labour Code.
Excluded from protection against dismissal:
Articles 28 and 29 provide rules for prior notice and severance pay in case of termination of employment contract after 3 months. However, there is no information in the law in relation to shorter periods.
Obligation to provide reasons to the employee: No
Article 35 provides that it is only mandatory to provide written declaration of reasons for dismissal if requested by the worker.
Valid grounds (justified dismissal):
Prohibited grounds: pregnancy, maternity leave, trade union membership and activities, whistle blowing
Articles 94 and 94 of Labour Code provides that is forbidden to dismiss pregnant workers or workers who are breastfeeding, as well as indicate that in case os unlawful dismissal the worker can request reinstatement before the courts. Article 367 of Labour Code provides stability to trade union members. and workers representatives.
Moreover, persons reporting sexual harassment are protected by the Law against Sexual Harassment in Employment and Teaching.
Preliminarily, the principle of non-discrimination was regulated by Law No. 2694 of November 22, 1960, which establishes that all types of discrimination in employment are prohibited, which refers to race, sex, age, religion, color, marital status , political opinion, national ancestry, social origin, affiliation or economic situation. In addition, the art. 33 of the Political Constitution generally establishes the principle of equality and the principle of non-discrimination. Specifically, article 57 regulates equal pay and article 68 prohibits discrimination at work.
Workers enjoying special protection: pregnant women and/or women on maternity leave
See article 94 of Labour Code.
Notification to the worker to be dismissed: no specific form required
Although the law does not provide a statutory form of communication of the termination, article 35 provides that, if requested by the worker, a written declaration shall be provided, containing information related to the duration of the contract, type of work, performance and reasons for termination.
Notice period:
According to article 28 of Labour Code, in case of dismissals without valids grounds in open-end contracts, the worker should be given a prior notice, if the employment contract lasts at least 3 months.
On the other hand, the employer is not obliged to provide prior notice in case the dismissal is due to a serious fault attributable to the worker. The employer is also not obligated to provide prior notice when in fixed term contracts, unless the contract is being terminated before the term or the conclusion of the work, provided that the period of one year has not been exceeded.
Pay in lieu of notice: Yes
Article 28 of Labour Code provides that in case the prior notice cannot be given in working days, it will be compensated with respective salary.
Notification to the public administration: No
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
There is no legal norm, but it can be regulated by collective bargaining agreement
Definition of collective dismissal (number of employees concerned) The legal system does not contemplate a regulation or a definition for dismissal for collective reasons, nor applicable limitations for the execution of collective dismissals. <br/>Although the article 369 of Labour Code provides authorization to lawfully dismiss employees that engage in collective actions that result in illicit acts, there is no particular provision in relation to the termination act itself.
Notification to the public administration No
There is no legal norm, but it can be regulated by collective bargaining agreement.
Notification to trade union (workers' representatives) No
Notification to workers' representatives: No
There is no legal norm, but it can be regulated by collective bargaining agreement.
Approval by trade union (workers' representatives) No
Approval by workers' representatives No
There is no legal norm, but it can be regulated by collective bargaining agreement.
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
:
Article 29 of Labour Code provides that if the employment contract for an undetermined time ends due to unjustified dismissal, or some of the causes provided for in article 83 or other beyond the worker's will, the employer must pay severance payment in accordance with the following rules :
1. After continuous work of not less than three months nor more than six, an amount equal to seven days of salary.
2. After continuous work of more than six months but less than one year, an amount equal to fourteen days of salary.
3. After continuous work of more than one year, with the amount of days of salary indicated in the following table:
a) 1 year: 19.5 days per year worked; b) 2 years: 20 days per year worked or fraction exceeding six months; c) 3 years: 20.5 days per year worked or fraction exceeding six months; d) 4 years: 21 days per year worked or fraction exceeding six months; e) 5 years: 21.24 days per year worked or fraction exceeding six months; f) 6 years: 21.5 days per year worked or fraction exceeding six months; g) 7 years: 22 days per year worked or fraction exceeding six months; h) 8 years: 22 days per year worked or fraction exceeding six months; i) 9 years: 22 days per year worked or fraction exceeding six months; j) 10 years: 21.5 days per year worked or fraction exceeding six months; k) 11 years: 21 days per year worked or fraction exceeding six months; l) 12 years 20.5 days per year worked or fraction exceeding six months; m) 13 years and following: 20 days per year worked or fraction exceeding six months.
: 14 day(s)
: 14 day(s)
: 19.5 day(s)
: 40 day(s)
: 84 day(s)
: 106 day(s)
: 215 day(s)
: 400 day(s)
mine workers: Yes
Art. 82 Labour Code provides that if a termination based on valid grounds is challenged in court and the employer fails prove the cause that founded the worker's dismissal, the worker shall have the right to be paid the amount of the prior notice, the unemployment assistance that may correspond, and, as well, severance pay and wages that would be received due to the termination of the contract until the date in which, in accordance with the legal terms to process and resolve, the conviction against the employer should have been final. The judge might also determine the payment of compensation for damages.
: Yes
See article 82 of Labour Code. The court might defined compensation for damages, in addition to the correspondent severance pay and prior notice.
Yes
See article 82 of Labour Code. The court might defined compensation for damages, in addition to the correspondent severance pay and prior notice.
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
See Article 82 of Labour Code and rules for severance pay.
managerial / executive positions: Yes
The reinstatement of the worker proceeds only when requested at the judicial level and when it is demonstrated that the worker has been unjustifiably dismissed for discriminatory reasons or in cases in which the worker has a special protection against dismissal, the employer did not process and did not obtain the corresponding judicial or administrative authorization prior to the application of the disciplinary dismissal.
Additionally, the worker may request that the employer be ordered to pay wages as long as he is not reinstated in his job.
police: No
Article 392 of Labour Code
Existing arbitration: No
Burden of Proof: both
Article 317 of Civil Procedure Code.