FTC regulated: Yes

Remarks

Article 25 of Labour Code provides that the individual employment contract may be:
a) For an indefinite time, when no date is specified for its termination.
b) For a fixed term, when a date is specified for its completion or when the occurrence of some fact or circumstance such as the completion of a work has been foreseen, which must necessarily end the employment relationship. In this second case, the worker's activity itself must be taken into account as the object of the contract, and not the result of the work; and
c) For a specific work, when the price of the worker's services is adjusted globally or in elevation from the time the work begins until the work is completed, taking into account the result of the work, that is, the work carried out.

Although the worker receives advanced payments on account of the work performed or to be performed, the individual employment contract must be understood for a specific work, provided that the conditions indicated in the preceding paragraph are met.

Valid reasons for FTC use: objective and material reasons

Remarks

Article 25 (b) and (c) of Labour Code above described.

Maximum number of successive FTCs: no limitation

Remarks

Article 26 of Labour Code provides that if the nature and cause of the work remain at the end of the work contract for a certain time and the hiring is not renewed, it will be interpreted for the benefit of the worker as an a contract for indefinite time and payment of the workers' compensation will proceed.
Contracts for a fixed term and for the execution of a specific work are of an exception nature and can only be concluded in cases that are required by the accidental or temporary nature of the service to be provided or of the work to be executed.

Maximum cumulative duration of successive FTCs: no limitation

Remarks

The maximum cumulative duration that may mediate between the successive conclusion of contracts for a defined time is not specified in the law.

% of workforce under FTC: 5.9

Remarks

According to the 2018 National Employment and Income Survey, of the total number of people surveyed, 65.4% of workers stated that they did not have an employment contract, 28.7% of people had signed an indefinite period of tome contract and, only 5,9% worked through an FTC.
Source: National Institute of Statistics (https://www.ine.gob.gt/sistema/uploads/2019/07/05/publicacion_ENEI_2_2018.pdf)

Maximum probationary (trial) period (in months): 2 months

Remarks

Article 81 of Labour Code provides that In all indefinite period contracts, the first two months are considered trial period, unless by mutual convenience the parties agree to a shorter period. During the trial period, either party may terminate the contract, of their own free will, with or without just cause, without incurring any liability.
The simulation of the trial period is prohibited, with the purpose of evading the recognition of the inalienable rights of the workers and those derived from the employment contract for an indefinite period. If one or more companies hire workers to provide their services to another company, the latter will be liable to the affected workers, in accordance with the law.

Excluded from protection against dismissal: No

Remarks

See Article 81 above.

Obligation to provide reasons to the employee: Yes

Remarks

Article 87 of Labour Code provides that regardless the motive in which is based the termination, at the end of every employment contract the employer must provide a letter to the worker, containing the dates of beginning and end of the contratc, salary received and type or work performed. Should the worker requires, the employer must also include information related to the performance and reasons for termination.
According to article 78 if the termination of the employment contract occurs due to disciplinary reasons, the worker is entitled to receive also a communication including the cause of the dismissal.

Valid grounds (justified dismissal): none

Remarks

According to article 82 of Labour Code an unfair dismissal is possible, which means that the employer can dismiss an employee without cause provided severance indemnity (indemnización por tiempo servido) is paid (article 82 LC).
Also, article 77 of Labour Code defines just causes for dismissal which are related mainly to disciplinary reasons: a) If the employee has acted with lack of integrity and honor during the execution of tasks and has incurred in slander against the employer or his representatives, b) If the employee commits any of the aforementioned acts against one of his fellow co-workers, causing alteration to the workplace’s order or the interruption of the work, c) If during non working hours the employee commits any of the aforementioned acts against the employer or his representatives, d) If the employee commits any felony or fault against the property of the employer or fellow co-workers or a third party in the establishment, and if the employee causes serious damage, intentionally, with negligence or recklessness, to the machinery, equipment, raw materials, products and any other objects related to their works, e) If the employee reveals manufacturing secrets (article 63 letter g), f) If the employee does not attend work during two consecutive days or six half days in a period of one month, g) If the employee manifiestly refuses to adopt preventive measures or follow procedures established by law, to avoid accidents or illnesses; or when the employee refuses to adopt the instructions given by the employer o his representatives to obtain better performance and efficiency in his tasks, h) if the employer infringes any of the prohibitions stated in article 64 LC or in the duly approved internal manual, after being warned in written by the employer. Prior warning is not required if the employee is under the effects of alcohol, and as a consequence endangeres life and security of people or assets of the employer, l) if the worker deceived the employer pretending to have capacities or knowledge he does not poses or by means of false letters of recommendation or certificates, j) If the employee has been sentenced to prison by irrevocable judgment, k) If the employee violates any other obligation of the employment agreement.

Prohibited grounds: pregnancy, maternity leave, race, religion, political opinion, trade union membership and activities, financial status

Remarks

Art. 14 bis: prohibits discrimination of workers based on race, religion, political creeds and economic situation, in social welfare, education, culture, entertainment or commerce establishments that work for the use or benefit of workers, in companies or work places of private owned, or in establishments that the State creates for workers in general.

Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave

Remarks

Women in a state of pregnancy or lactation period (art. 151 (c) of Labour Code), workers in formation of a union (art. 209 Labour Code), the members of the Executive Committee of the Union during the exercise up to 12 months after of their mandate has ended (art. 223 (d) Labour Code) and the workers participating in a collective economic and social conflict (art. 380 Labour Code).
The foregoing implies that it is required to process and obtain a judicial or administrative authorization prior to the application of the dismissal.

Notification to the worker to be dismissed: written

Remarks

Article 78 of Labour Code provides that the termination of the employment contract in accordance with one or more of the causes listed in Article 77, takes effect as soon as the employer communicates it in writing to the worker indicating the cause of the dismissal and the worker effectively ceases working. The worker has the right to challenge the dismissal before Labor and Social Security Courts.

Article 87 of Labour Code provides that at the expiration of all employment contracts, for whatever reason it terminates, the employer must give the worker a document that expresses only:
a) The date of their entry and exit;
b) The type of work performed; and
c) The ordinary and extraordinary salary accrued during the last payment period.
If the worker wishes, the certificate must also determine:
a) The way it worked; and
b) The cause or causes of the termination of the contract.

tenure ≥ 6 months:

  • All: 0 months.

tenure ≥ 9 months:

  • All: 0 months.

tenure ≥ 1 year:

  • All: 0 months.

tenure ≥ 2 years:

  • All: 0 months.

tenure ≥ 4 years:

  • All: 0 months.

tenure ≥ 5 years:

  • All: 0 months.

tenure ≥ 10 years:

  • All: 0 months.

tenure ≥ 20 years:

  • All: 0 months.

Pay in lieu of notice: No

Remarks

Notice period associated with the dismissal of the worker is not regulated

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

Approval by workers' representatives: No

Notes / Remarks

Notes

Notice period associated with the dismissal of the worker is not regulated.
The only existing regulation is in relation to the notice period that the worker who wishes to terminate the contract without just cause once the trial period has elapsed must give to the employer. This written notice period due to the worker’s resignation is not subject to be compensated and it will depend upon the worker´s seniority (Art. 83 Labour Code).

Definition of collective dismissal (number of employees concerned): No statutory definition of collective dismissal for economic reasons.
However, article 85 Labour Code states that it is possible to terminate an employment contracts: force majeure or fortuitous case; insolvency, bankruptcy or judicial or extrajudicial liquidation of the company; or the incapacity or death of the employer. This rule applies when the events described above produce as a necessary consequence, the absolute impossibility of fulfilling the employment contract.
In these cases, the General Labour Inspectorate, or the Labour and Social Welfare Courts, if litigation has arisen, must discretionary graduate the amount of the company's obligations as regards for dismissal, considering the parameters set out by articles 82, 83, 84 and 85 of Labour Code, without in any case these being less than amount of two days of salary, or greater than 4 months of salary, for each worker. For this purpose, the economic capacity of the respective company must be taken into account, in harmony with the time that each contract is in force.
However, greater compensation may be imposed in favour of workers in the event that the insolvency or bankruptcy of the company has been caused in a guilty or fraudulent manner by the employer.

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: Yes

Remarks

As previously described, when the work contract is terminated without a cause due to insolvency, bankruptcy or partial or extrajudicial liquidation of the company; it is the General Labour Inspectorate, or the Labour and Social Welfare Courts, if litigation has already arisen, that must discretely graduate the amount of the company's obligations as regards for dismissal, considering the parameters set out bu articles 82, 83, 84 and 85 of Labour Code.

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

Remarks

There is no statutory rule in relation to re-employment after economic reasons dismissals.
However, in accordance with article 13 Labour Code, it is forbidden employing less than ninety percent of Guatemalan workers and paying them less than eighty-five percent of the total wages accrued in their respective companies, except as established in particular by special laws and also according to the exclusions established in the article itself.

Severance pay:

Remarks

Article 82 provides that if the employment contract for an indefinite period ends after the trial period has elapsed, due to the unjustified dismissal of the worker, or for any of the causes provided for in Article 79, the employer must pay a compensation for time served equivalent to one month's salary for each year of continuous service. If the services do not last one year, proportionally to the term worked. For the purposes of calculating continuous services, the date on which the employment relationship began, whatever it is, must be taken into account.

Article 84 provides that in fixed-term contracts and for the execution of a determined work, each of the parties may terminate them, without just cause, before the end of the term or the completion of the work, paying the other the corresponding damages and losses, under the discretion of a labor inspector or Labour Judge, if a litigation has already arisen.
If the premature termination of the contract has been determined by the employer, the damages to be paid to the worker cannot be less than one day's salary for each month of continuous work performed, or a smaller fraction of the time, otherwise that term has been adjusted. This minimum of damages must be satisfied at the time of termination of the contract and is deductible from the greater amount of damages that may subsequently be determined by the labor authorities.

tenure ≥ 6 months: 0.5 months

tenure ≥ 9 months: 0.8 months

tenure ≥ 1 year: 1 months

tenure ≥ 4 years: 4 months

tenure ≥ 5 years: 5 months

tenure ≥ 10 years: 10 months

tenure ≥ 20 years: 20 months

Redundancy payment:

Remarks

No statutory provision for redundancies. However, article 85 Labour Code states that it is possible to terminate an employment contracts: force majeure or fortuitous case; insolvency, bankruptcy or judicial or extrajudicial liquidation of the company; or the incapacity or death of the employer. In these cases, the General Labour Inspectorate or the Labour and Social Welfare Courts, if litigation has arisen, must discretionary graduate the amount of the company's obligations as regards for dismissal, considering the parameters set out by articles 82, 83, 84 and 85 of Labour Code, without in any case these being less than amount of two days of salary, or greater than 4 months of salary, for each worker. For this purpose, the economic capacity of the respective company must be taken into account, in harmony with the time that each contract is in force.
However, greater compensation may be imposed in favour of workers in the event that the insolvency or bankruptcy of the company has been caused in a guilty or fraudulent manner by the employer.

tenure ≥ 6 months: 0.5 months

tenure ≥ 9 months: 0.8 months

tenure ≥ 1 year: 1 months

tenure ≥ 2 years: 2 months

tenure ≥ 4 years: 4 months

tenure ≥ 5 years: 4 months

tenure ≥ 10 years: 4 months

tenure ≥ 20 years: 4 months

Compensation for unfair dismissal - free determination by court: No

Remarks

Article 78 of Labour Code provides that the termination of the employment contract according to one or more of the causes listed in the preceding Article77, takes effect as soon as the employer communicates it in writing to the worker indicating the cause of the dismissal and the worker effectively ceases his work, but the worker has the right to challenge the employer before the Labor and Social Security Courts, before the statute of limitations expires, in order to prove the just cause on which the dismissal was founded. If the employer does not prove this cause, it must pay the worker:
a) The indemnities that according to this Code may correspond to severance pay; and
b) As damages, the wages that the worker has ceased to receive from the time of dismissal until the payment of the respective compensation, up to a maximum of twelve (12) months of salary and court costs.

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

Remarks

See Article 78 of Labour Code.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): See article 78 above.

Remarks

In cases of dismissals due to force majeure or fortuitous case; insolvency, bankruptcy or judicial or extrajudicial liquidation of the company; or the incapacity or death of the employer. In these cases, the Labour and Social Welfare Courts must discretionary graduate the amount of the company's obligations as regards for dismissal, considering the parameters set out by articles 82, 83, 84 and 85 of Labour Code, without in any case these being less than amount of two days of salary, or greater than 4 months of salary, for each worker. For this purpose, the economic capacity of the respective company must be taken into account, in harmony with the time that each contract is in force.
However, greater compensation may be imposed in favour of workers in the event that the insolvency or bankruptcy of the company has been caused in a guilty or fraudulent manner by the employer.

Reinstatement available: Yes

Remarks

Although there is no statutory provision for reinstatement, the worker may request reinstatement at the judicial level and when it is demonstrated that the workers have a special protection jurisdiction (arts. 151 subsection C, 209, 223 (d) and 380 of Labour Code) or if the employer did not obtain the corresponding judicial or administrative authorization prior to the application of the disciplinary dismissal.

Preliminary mandatory conciliation: Yes

Remarks

The arts. 340 and 341 LC provide a conciliation stage between the filing of the claim and counterclaim and during the stage of trial hearing.
If the conciliation is partial, the trial will continue regarding the requests not included in the agreement.

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

Remarks

Art. 283 of Labour Code provides that conflicts related to Labour and Social Security are subject to the exclusive jurisdiction of the Labour and Social Security Courts, who are responsible for judging and executing the judged.

Existing arbitration: No

Remarks

Decree 67/95 Arbitration Law, in its art. 3 subsection 4, excludes the possibility of submitting labour matters to an arbitration process. However, in social economic collective conflicts, arbitration is permitted in accordance with the provisions of arts. 397 and following of the Labour Code.

Burden of Proof: both

Remarks

Article 344 of Labour Code.