Compensation for unfair dismissal - free determination by court:
Compensation for unfair dismissal - Are there legal limits?:
In case of unfair dismissal, according to article 46, if allegations of unfair dismissal are proved, the Labour Judge can order reinstatment plus back pay. if the employer does not comply with the judicial decision, the compensation in double will be ordered.
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
According to article 45, when the employer terminates the employment contract for an indefinite period and without just cause, the worker is entitled to compensation equivalent to:
1) One month's salary for each of the first three years of work;
2) Twenty days of salary for each year of work from the fourth year.
In no case will the compensation be less than a month or more than five months. The fractions between the years worked will be liquidated proportionally.
Also, in cases when the workers enjoy special protection, article 46 provides that worker should be reinstated with the payment of the salaries from the dismissal to the effective return to work. In case that is not possible, the double to the severance pay dyermined by article 45 shall be paid.
Article 46 of Labour Code provides that when the termination of the contract by the employer is verified in violation of the prohibitive provisions contained in this code and other labour regulations, or constitutes an act that restricts the worker's right, or is in retaliation against the worker for having exercised or attempted to exercise their labour or union rights, the worker will have action to demand their reinstatement before the Labor Judge, in the same position that they held and in identical working conditions, remaining
the employer, if the refund is declared, to the payment of the wages not received and to their refund.
If the employer does not comply with the judicial resolution, this must pay the worker, in addition to the severance pay, a sum equivalent to one hundred percent of the same.
Preliminary mandatory conciliation:
Article 310 of Labour Code provides that a first hearing will be scheduled to attempt conciliation. Articles 323 et. seq. provide rules for judicial conciliation.
Also, article 72 of Labour Procedure Code provides in paragraph 1 that it will be a requirement to be able to access the jurisdictional means in cases of small amounts claims, established by the Supreme Court of Justice, to have exhausted the conciliatory procedure before the administrative labor authority. In the other cases, it will be optional to participate in conciliation through administrative authorities.
Competent court(s) / tribunal(s):
The Ministry of Labor has a General Directorate for Collective Law and Labor Consulting, under whose direction is the Department of Collective Bargaining and the Department of Individual Conciliation that offers arbitration services for alternative resolution of conflicts, but it is not mandatory for most cases (only for small claims, according to article 72 Labor Procedure Code).
Length of procedure:
Article 46 provides that the Labor Judge must resolve these cases within thirty days from the filing of the claim and in the case of appeal, the respective court must do so within sixty days of receiving the proceedings. Both terms are mandatory and to the judges and magistrates who do not resolve within the indicated terms, the respective superior at the request of the aggrieved party will apply a fine equivalent to ten percent of the salary of the respective authorities.
Burden of Proof:
Article 328 of Labour Code and article 54 of Labour Procedure Code.