FTC regulated: Yes

Remarks

According to article 49, the employment contract can be: of a determined term, for an indefinite time or for a specific work or service. In the absence of an express term, the duration of the contract shall be understood to be that established by custom or for an indefinite period.
The contract concluded for a specified time may not exceed one year for the workers or five years for the employees, and shall conclude by the expiration of the agreed term.
However, any fixed-time contract is subject to express or tacit extension. It will be in the latter way, due to the fact that the worker continues to provide his services after the expiration of the term, without opposition from the employer. The contract for specific works or services will last until the total execution of the one or until the total provision of the others.

Valid reasons for FTC use: objective and material reasons

Remarks

See above article 49, which provides the possibility for a fixed-term contract for specific work and service.

Maximum number of successive FTCs: no limitation

Remarks

Articles 49 provides that as many renewals are possible might be tacit or expressed, within the maximum duration alloweed by law for fixed-term contracts.

Maximum cumulative duration of successive FTCs: 60months

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

Remarks

According to articles 58 of Labour Code, it is possible to establish a trial period that will be aimed at the employer, assessing the skills of the worker and, on the part of the latter, verifying the appropriateness of the conditions of the contracted work. This period will have a maximum of the following duration: a) Thirty days for domestic service personnel and unskilled workers; b) Sixty days, for qualified workers or apprentices; and, c) In the case of highly specialized technical workers, the parties may agree on a different period from the previous one, according to the modalities of the contracted work.
In addition, according to article 59 of same Code, if at the end of that, none of the contractors express their express wish to terminate the employment contract, it will continue in force in the agreed form, the trial period must be computed for all legal purposes. In the event of a new contract between the same contractors and for the same type of work, there will be no trial period.

Excluded from protection against dismissal: Yes

Remarks

According to article 60, during the trial period, either party may terminate the employment contract, without incurring any liability. However, workers will enjoy all the payments during this period, with the exception of notice and severance pay.

Obligation to provide reasons to the employee No

Remarks

Article 93 of Labour Cpde provides that, at the termination of any employment contract, whatever the reason that motivated it, the employer must give the worker free of charge a signed certificate that only expresses: a) The date of initiation and conclusion of the work;
b) The type of work performed; and, c) Salaries accrued during the last payment period.

If the worker requests it, the proof must also express: a) The efficiency and behavior of the worker; and, b) The cause or causes of the termination of the contract.

Valid grounds (justified dismissal): economic reasons, worker's conduct

Remarks

According to article 78 of Labour Code, are valid reasons for dismissals: a) any reason stipulated in the contract, if not illegal; b) mutual consent, formalized before the competent authorities; c) death ou mental incapacity of worker; d) fortuitous event or force majeure; e) expiration of the term or the completion of the work, in contracts concluded for a specified period; f) bankruptcy of the employer or the judicial liquidation of the company; g) total closure of the company, or the definitive reduction of the tasks, prior written communication to the Administrative Labor Authority; h) dismissal of the worker by the employer with just cause in accordance with the provisions of this Code; i) resolution of the contract decreed by the competent authority.

Articles 81 and Article 82 of Labour Code provide rules for dismissals for disciplinary reasons, which could happen due to: i) false declarations on personal files; ii) crimes against the employer, including stealing, or crimes commited outside work; c) violence acts against the employer and/or other workers, or against other people; d) damages caused by the worker due to negligence; e) immoral acts; f) disclosure of industrial or business secrets; g) work under the effects of drugs or alcohol; h) constant refusal in complying with enterprise regulations concerning specially health and safety at workplace; i) loss of the employer's confidence in the worker; j) performance of competition against the employer; k) participation in illegal strikes; l) non-attendance of the worker to the contracted tasks for three consecutive days or four times in the month; m) abandonment of work by the worker; n) refusal to work in the tasks assigned to the worker; o) repeated lack of punctuality of the worker in complying with the work schedule; p) worker's disobedience to the employer or its representatives; q) infectious contagious or mental illness or of other ailments or organic disturbance that prevent the worker to perform its work.
The employer who dismisses the worker or terminates the employment contract for the causes specified above does not incur any responsibility or assume any obligation to prior notice or to pay indemnities.

In case of imputation of a just cause of dismissal that was not judicially proven, the worker will have the right, in addition to the compensation of Articles 91 and 92 of Labour Code, to a supplementary compensation, equivalent to the total wages from the moment the worker filed judicial claim until the Judgment is enforced, unless the enforcement authority, based on equity, decides to reduce the amount. This in no case may exceed the amount equivalent to one year of salary.

Prohibited grounds: maternity leave, trade union membership and activities

Remarks

The Labour Code establishes provisions concerning dismissals of trade unions members. Trade Unions must indicate to the employers which members enjoy protection against dismissal, according to article 318.
Likewise, in order to dismiss a worker protected by union stability, accoridng to article 321, the employer shall previously prove judicially the existence of just cause imputed to the worker, or that the invoked condition of leader, manager or candidate is false. Taking into account the seriousness of the facts alleged by the employer, the Judge may preventively suspend the provision of the leader's service, without prejudice to paying the wages and benefits at the end of the demand.

In the same line, article 136 provides that from the moment the employer has been notified of the worker's pregnancy and while the worker enjoys the maternity breaks, the notice and dismissal decided by the employer will be void.

Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave, older workers/workers on the verge of retirement

Remarks

See above provisions related to articles 136, 318 and 321 of Labour Code, for trade union members and workers in state of pregnancy and maternity leave.
According to article 94, the workers who count with more than 10 years of service, may not be dismissed unless: 1) that the employer previously verify, in a reliable way, the existence of some just legal cause of dismissal imputed to the worker; 2) that the worker whose replacement was ordered decides to agree with it and receive the double compensation referred to in article 97; and, 3) that the worker has taken up retirement, in accordance with the Law. In this case, the employer and the worker may agree to a new employment relationship, subject to the following rules: a) There will be no alteration of wages, duration of vacations or other previous benefits; b) The termination of the link must occur with ninety days' notice, compensable in cash; and, c) The worker will not be entitled to seniority compensation.
Moreover, the worker who has acquired stability and to whom the facts set forth in the Law are imputed, as grounds for dismissal, will be suspended from employment during the substantiation of the trial, and may only be dismissed after the imputation is verified before the Labor Judge (article 95 of Labour Code).


Notification to the worker to be dismissed: written

Remarks

According to article 93, at the termination of any employment contract, whatever the reason that motivated it, the employer must give the worker free of charge a signed certificate that only expresses: a) The date of initiation and conclusion of the work; b) The type of work performed; and, c) Salaries accrued during the last payment period. If the worker requests it, the proof must also express: a) The efficiency and behavior of the worker; and, b) The cause or causes of the termination of the contract.

Notice period:

Remarks

According to article 87 of Labour Code, in the case of an indefinite-time contract, neither party may terminate it without giving prior notice to the other, except as provided in Articles 81 and 84 of this Code (valid grounds for dismissals), in accordance with the following rules: a) Completed the trial period up to one year of service, thirty days' notice; b) More than one year and up to five years old, forty-five days' notice; c) Over five and up to ten years old, sixty days' notice; and, d) Of more than ten years old and upwards, ninety days' notice.

In the calculation of seniority, prior notice will be understood, if the worker served during that time.

tenure ≥ 6 months:

  • All: 1 months.

tenure ≥ 9 months:

  • All: 1 months.

tenure ≥ 1 year:

  • All: 1 months.

tenure ≥ 2 years:

  • All: 1.5 months.

tenure ≥ 4 years:

  • All: 1.5 months.

tenure ≥ 5 years:

  • All: 1.5 months.

tenure ≥ 10 years:

  • All: 2 months.

tenure ≥ 20 years:

  • All: 3 months.

Pay in lieu of notice: Yes

Remarks

According to article 90, the employer who has not given the notice or gave it without complying with the legal requirements, is obliged to pay the worker an amount equivalent to the worker's salary during the term of the notice.
In the event that the worker omits this requirement, th worker must pay his employer an amount equivalent to half the salary that corresponds to the end of the notice.

Notification to the public administration: No

Remarks

There is no obligation to notify the public administration, apart from the situations provided by the law concerning redundancies (Articles 78 (h) Labour Code).
According to article 88, the prior notice might be given through the Administrative Labor Authority, but there is no obligation.

Notification to workers' representatives: No

Approval by public administration or judicial bodies: No

Remarks

According article 320, in the event of a claim regarding violation of union stability, the Judge shall order as a precautionary measure the immediate reinstatement of the leader in his previous workplace, or the reestablishment of the modified conditions, within forty-eight hours. .

Moreover, according to article 321, to dismiss a worker protected by Union Stability, the employer shall previously prove the existence of just cause imputed to him, or that the invoked condition of leader, manager or candidate is false. Taking into account the seriousness of the facts imputed to the worker, the Judge may order his preventive suspension. In this case, the employer must judicially deposit the worker's salary every month until the resolution or final agreement.

Approval by workers' representatives: No

Definition of collective dismissal (number of employees concerned): There is no statutory definition for collective dismissals. The Labour Code provides regulation for dismissals related to economic reasons and ceasing of activities (Articles 78, subparagraph d, h, g and i, 79 and 80).

Remarks

Article 78 does consider valid grounds for dismissals for economic reasons or ceasing activities the follow subparagraphs: d) The fortuitous event or force majeure that permanently prevents the continuation of the contract; g) The bankruptcy of the employer or the judicial liquidation of the company, except in the event that the trustee, in accordance with the pertinent legal procedures, decides that the business or exploitation must continue; h) The total closure of the company, or the definitive reduction of the tasks, prior written communication to the Administrative Labor Authority, which will give summary participation to the workers before issuing the respective resolution; i) The exhaustion of the subject matter of an extractive industry.

For these cases, articles 79 and 80 provide rules for payment of indemnities in case of dismissal of employees, although it does not make particular reference to collective dismissals. In the case referred by subparagraph (h), the obligation to pay indemnities is only enforced if the employer did not provide the communication to the authorities as required or does not re-employ the same workers in the advent of a new enterprise, according to article 91 of Labour Code.

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

Notification to the public administration: Yes

Remarks

See above paragraph (h) of article 78 of Labour Code.

Notification to workers' representatives: No

Approval by public administration or judicial bodies: No

Remarks

Although the paragraph (h) of article 78 mentions a final resolution of Labour Administrative Authorities, there is no indication that an approval is necessary, but only the communication.

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...): Yes

Remarks

According to article 80 of Labour Code, in the case of total closure of the company, provided for in subparagraph (h) of Article 78, if the employer establishes within the term of a year another similar, by itself or interpositor, is obliged to admit the same workers who previously employed , or failing that, pay them compensation in accordance with the rule established in Article 91 of this Code.

Priority rules for re-employment: Yes

Severance pay:

Remarks

Article 91 of Labour Code establishes severance payment in case of termination of employment contract without a valid cause. In the event of dismissal without just cause provided by the employer, having or having not given prior notice, the employer shall pay the worker compensation equivalent to fifteen daily wages for each year of service or fraction of six months, calculated in the form mentioned in subsection b) of Article 92.

Article 92, subparagraph (b) provides that the corresponding compensation will be calculated based on the average of the wages earned by the worker, during the last six months that the contract is in force or a minor fraction of time, if said term had not been adjusted.

tenure ≥ 6 months: 0.5 months

tenure ≥ 9 months: 0.5 months

tenure ≥ 1 year: 0.5 months

tenure ≥ 4 years: 4 months

tenure ≥ 5 years: 5 months

tenure ≥ 10 years: 5 months

tenure ≥ 20 years: 20 months

Redundancy payment:

Remarks

Article 78 provides subparagraphs with situations that might be considered redundancy: h) The total closure of the company, or the definitive reduction of the tasks, prior written communication to the Administrative Labor Authority, which will give summary participation to the workers before issuing the respective resolution; i) The exhaustion of the subject matter of an extractive industry.

For the cases of subparagraphs (d), (g) and (i), articles 79 (3) and 80 (1) provides that a compensation corresponding to, once the trial period has been completed, up to five years old, with one month's salary; to the one who was more than five to ten years old, with two months of wages, and to the one who had more than ten years of seniority, with three months of wages.

In the cases corresponding subparagraph (h), if the requirements have not been met, the compensation will be paid according to Article 91 (see remarks of severance payment).

tenure ≥ 6 months: 1 months

tenure ≥ 9 months: 1 months

tenure ≥ 1 year: 1 months

tenure ≥ 2 years: 1 months

tenure ≥ 4 years: 1 months

tenure ≥ 5 years: 1 months

tenure ≥ 10 years: 2 months

tenure ≥ 20 years: 3 months

Notes / Remarks

Notes

According to article 188 of Labour Code, the dismissal without just cause of the worker obliges the employer to pay compensation in accordance with article 91 of this Code, and must also pay the amount of the omitted notice that corresponds to their seniority.
Also, according article 189, the advance notice and the established indemnities will be paid based on the amount of the minimum wage established for unspecified activities, of the area or workplace, or on the conventional remuneration if they are higher than the legal minimum wage.

Compensation for unfair dismissal - free determination by court: No

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

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): According to article 83 of Labour Code, in the fixed term contracts or for a certain work or determined service, the unjustified dismissal arranged before the expiration of the term, or the completion of the work, will entitle the worker to receive compensation, to be fixed by the Judge or respective Court, whose amount may not exceed the value of wages that should have been paid by the employer until the contract is fulfilled.
For all the other cases, including unfair dismissals or challeging of alleged fair dismissals, the Judge shall observe the rules provided by articles 79, 80 and 91 of the same code.

Reinstatement available: Yes

Remarks

Reinstatement is available in the cases concerning dismissals of employees who enjoy special protection against dismissals (see articles 94, 136, 318 and 321 of Labour Code).

Preliminary mandatory conciliation: Yes

Remarks

Article 125 of Labour Code Procedure provides that a first attempt of conciliation must be carried out before the proceedings start, but after the reception of the defendant response to the claims.

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

Remarks

Article 34 of Labour Procedure Code provides that The labor judges will be competent to handle: a) Contentious issues arising from the application of the Labor Code or the clauses of the individual contract or the apprenticeship contract, between workers or apprentices and employers; b) The controversies arisen between the pactantes subjects or adherents of a collective contract of conditions of work, with respect to the existence, interpretation or fulfillment of this one; c) The lawsuits on union recognition, promoted between an employer or employer organization and the unions of workers or between these exclusively, in order to celebrate a collective work contract; d) Any conflict between a Union and its affiliates derived from the breach of the bylaws or the collective contract of working conditions; and e) Disputes between workers, motivated by teamwork.

Existing arbitration: Yes

Remarks

Arbitration clauses might be included in collective bargaining agreements, according to Article 290 (d) and 329 (2) of Labour Code.

Burden of Proof: both

Remarks

Articles 137 and 138 of Labour Procedure Code.