FTC regulated: Yes

Remarks

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

Remarks

See Article 26 above.

Maximum number of successive FTCs: no limitation

Remarks

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: 12months

Remarks

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):

Remarks

The trial period is not regulated by the legal system. However, it 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, according to article 28 (a) of the Labour Code.

Excluded from protection against dismissal:

Remarks

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

Remarks

Article 35 provides that it is only mandatory to provide written declaration of reasons for dismissal if requested by the worker.
However, if it is a dismissal for a cause attributable to the worker, the employer must detail the facts that supported it in the dismissal letter, which will be the only ones that can later be discussed in court. This new provision has been brought by the Law No. 9343/2016 (One of the laws that performed the reform).

Valid grounds (justified dismissal): none

Remarks

Private employment relationships are governed by free dismissal, therefore, the employer can dismiss a worker without just cause, but with the payment of the corresponding workers' compensation (article 85 (d) of the Labour Code).
On the other hand, the Labour Code also has a list of grounds that merit the application of disciplinary dismissal (Article 81 and 369 of Labour Code), in which case no severance or redundancy payment should be paid.
A dismissal is also possible for health reasons arising from a work risk, when the worker's relocation is not possible (article 254 Labour Code), with the payment of the corresponding workers' compensation (severance payment), in accordance with article 29 of Labour Code.

Prohibited grounds: pregnancy, maternity leave, trade union membership and activities, whistle blowing

Remarks

Article 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. Particularly, article 57 regulates equal pay and article 68 prohibits discrimination at work.

Workers enjoying special protection: pregnant women and/or women on maternity leave

Remarks

See article 94 of Labour Code.

Notification to the worker to be dismissed: no specific form required

Remarks

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.
However, if the termination happened due to disciplinary reasons, the mentioned written communication is mandatory.

Notice period:

Remarks

According to article 28 of Labour Code, in case of dismissals without valid 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 disciplinary reasons. The employer is also not obligated to provide prior notice 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.

tenure ≥ 6 months:

  • All: 0.5 months.

tenure ≥ 9 months:

  • All: 0.5 months.

tenure ≥ 1 year:

  • All: 1 months.

tenure ≥ 2 years:

  • All: 1 months.

tenure ≥ 4 years:

  • All: 1 months.

tenure ≥ 5 years:

  • All: 1 months.

tenure ≥ 10 years:

  • All: 1 months.

tenure ≥ 20 years:

  • All: 1 months.

Pay in lieu of notice: Yes

Remarks

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

Remarks

In the private employment regime, due process is not required before dismissal. Only in the case of workers with special protection is it necessary to process and obtain judicial or administrative authorization prior to applying the disciplinary dismissal (art. 540 Labour Code after the 2016 Reform)

Approval by workers' representatives: No

Remarks

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.
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.

Prior consultations with trade unions (workers' representatives): No

Remarks

There is no legal norm, but it can be regulated by collective bargaining agreement.

Notification to the public administration: No

Notification to workers' representatives: No

Remarks

There is no legal norm, but it can be regulated by collective bargaining agreement.

Approval by public administration or judicial bodies: No

Approval by workers' representatives: No

Remarks

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

Severance pay:

Remarks

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..

tenure ≥ 6 months: 0.5 months

tenure ≥ 9 months: 0.5 months

tenure ≥ 1 year: 0.7 months

tenure ≥ 4 years: 2.8 months

tenure ≥ 5 years: 3.5 months

tenure ≥ 10 years: 7.2 months

tenure ≥ 20 years: 13.3 months

Redundancy payment:

Notes / Remarks

Notes

If the dismissal occurs without a cause in fixed-term contracts before the final term, the worker must be compensated with fixed compensation and compensation for damages (art. 31 Labour Code).
Despite the above, if the contract has been stipulated for six months or more; or longer if the execution of the work demands, by its nature or importance, should last this period or a longer one, the referred additional compensation can never be less than twenty-two days of salary.
Severance payment is due to all cases of dismissals by employer´s initiative, with the exception of dismissals due to just cause concerning the situations provided by articles 81 and 369 of Labour Code.

Compensation for unfair dismissal - free determination by court: Yes

Remarks

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.

Compensation for unfair dismissal - Are there legal limits?: Yes

Remarks

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):

Remarks

See Article 82 of Labour Code and rules for severance pay.

Reinstatement available: Yes

Remarks

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.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks

Article 430 of Labour Code

Existing arbitration: Yes

Remarks

Art. 218 Labour Code: The Labour Tribunals and/or The Conciliation and Decision Boards (junta de conciliación y decisión,) have jurisdiction over claims of unfair dismissal. The "juntas de conciliación y decisión" which are tripartite bodies and are integrated into the "Jurisdiccion Laboral".
The worker can submit their differences to an arbitration in administrative headquarters before the Ministry of Labor and Social Security or in judicial headquarters before the labour courts and in the Centers for Alternate Conflict Resolution, which are private centers duly registered with the Ministry of Justice (Law on Alternate Resolution of Conflicts and Promotion of Social Peace, Law No. 7727 of December 9, 1997 and art. 456 LC).

Burden of Proof: both

Remarks

Article 317 of Civil Procedure Code.