CDD regulados: Si

Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

Art. 14 GLA: employment contracts are concluded for an indefinite term. As an exception, contracts can be concluded for a specific period of time. Those contracts must be in writing.
Art. 15 GLA states that fixed-term contracts can only be concluded in limited situation and provides a limited list of those situations (They include: replacement of a temporarily absent worker, temporary increase of the business activity, carrying out occasional and punctual tasks which do not fall within the normal activities of the employer's business, seasonal work, execution of urgent work to avoid accidents, training and vocational training, launching of new activities, employment of persons with disabilities, older workers, persons unemployed for over a year....)

Número máximo de CDD consecutivos: sin restricción

Duración máxima acumulativa de CDD consecutivos: 36meses

Remarks

The GLA provides for maximum statutory durations of FTC of 6, 12 or 36 months depending on the reason for which the contract was concluded (art. 16 GLA). Renewals of FTCs are allowed provided that the maximum cumulative duration does not exceed the statutory limits (art. 17 GLA). These limits are established as follows:
- 6 months if the FTC is concluded to undertake seasonal work or to implement urgent safety measures.
- 12 months in the event of temporary increase of the business activity or in order to carry out occasional and punctual tasks which do not fall within the normal activities of the employer's business.
- 36 months in the following instances: replacement of a temporarily absent worker; launching of new activities; employment of persons with disabilities, older workers, persons unemployed for over a year; execution of specific periodic tasks which are of a discontinuous nature; execution, management and supervision of civil engineering works or similar work of a temporary nature.
As an exception, in certain limited cases (if the absent worker does not return within 36 months or if employment policy measures on employment of persons with disabilities, older workers, persons unemployed for over a year are still applicable at the expiry of the 36 month-contract or if the duration of the civil engineering works exceeds 36 months), the Labour Inspectorate can authorize the extension beyond the maximum duration of 36 months for another 24 months (60 months in total) (art. 16 (1)and(2) GLA).

Duración maxima del periodo de prueba (en meses): 6 meses

Remarks

Art. 19 GLA: The standard probationary period shall be 60 days. However, the parties can extend this period, in writing, to 4 months when a highly qualified employee is concerned, or to 6 months when the worker is hired to perform highly complex technical work or if he/she occupies a managerial position which requires high level education.
If the contract is concluded for a fixed-term, a probationary period can be stipulated in writing provided that it does not exceed 15 days for unskilled workers and 30 days for skilled workers.
During that period, either part may terminate the employment contract without prior justification and prior notice, and without any compensation.

Obligación de motivar el despido: Si

Remarks

- Disciplinary dismissals:
The reasons justifying the intended disciplinary action (including dismissals) must be stated in the prior interview notification (art. 50(2)a) GLA)l, then explained in detail during the interview (art. 51(1) GLA) and lastly be included in the written communication of the disciplinary dismissal to the employee (art. 52(2) GLA).

- Economic dismissals:
The reasons underlying economic individual (affecting less than 5 workers) and collective dismissals shall be provided in the notification to the worker's representatives (arts. 231(1) and 239(2) GLA)
In the event of individual dismissal, copy of that notification shall be sent to the workers along with the notice of dismissal (for individual dismissals: see arts. 232(1) and 232 GLA, and for collective dismissals, see: arts. 239(1)).
[In the event of collective dismissal, in the absence of an employees' representatives established body, the employer shall post a written notice to all workers informing them of the intended collective dismissal and the reasons for it and of the fact that they can set up a committee of 3 to 5 workers to represent them during the consultation process (art. 239(4) GLA)].

Motivos autorizados (despido justificado): cualquiera justa causa

Remarks

Art. 224 GLA: Just cause is required for individual dismissal. Just causes include serious disciplinary offenses or the objective causes which make it impossible to maintain the employment relationship.
* Disciplinary reasons:
Art. 225 GLA provides a list of just causes justifying disciplinary dismissal (e.g. unjustified absence from work, non-observance of the working hours, lack of punctuality, serious disobedience, verbal or physical violence against the employees, the employer or his/her representatives, severe indiscipline, repeated lack of compliance with the obligations incumbent to the worker, theft, robbery, embezzlement, fraud, revealing manufacturing secrets, causing damages deliberately or through gross negligence to the premises, equipment, bribery and corruption, intoxication or drug addiction, non-compliance with the safety and hygiene rules).
*Objective reasons:
Art. 230 GLA: dismissal can be justified by economic, technological and structural reasons involving internal reorganization, restructuring, reducing or closing down the business activity.

Motivos prohibidos: estado civil, embarazo, raza, color, sexo, religión, opinion política, origen social, nacionalidad, afiliación sindical y actividades sindicales, cumplimiento del servicio militar o civil, lengua, otros, origen étnico

Remarks

Art. 228(2) GLA provides for the nullity of any dismissal which is based on the following grounds:
- political, ideological and religious views;
- trade-union affiliation (and non-affiliation);
- any other discriminatory grounds listed in arts. 3(1) and 20(2)b) GLA. Those include: race, colour, sex, ethnic origin, marital status, social condition, political or religious views, trade union membership, language, age, citizenship, family members at the workplace, careers, wages, duration and other conditions of work.
- In addition, the law provides for a prohibition to dismiss a woman covered by the maternity protection (that is during the entire pregnancy and up to one year after delivery) unless she commits a disciplinary offence which makes it immediately and practically impossible to maintain the employment relationship (art. 272(1)d and 278 GLA).
- Lastly, there is a presumption of unfair dismissal (rebuttable by the employer), when a dismissal takes place within 6 months:
* after an employee's complaint regarding his/her working conditions or a violation of his/her rights,
* after the refusal to follow illegal orders,
* after the worker has exercised or intended to exercise any other rights conferred by statute.
The dismissal of a worker, who has held or sought to hold office as a trade union representative or an employees' representative, is also presumed to be unfair when it takes place within 2 years after the completion of his/her term or after the selection process.

Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores, mujeres embarazadas o con licencia de maternidad, trabajadores con discapacidad, veteranos de guerra, menores

Remarks

Art. 227 provides for special protection against dismissal for the following categories of workers:
- trade union leaders, trade union delegates or worker's representatives;
- women covered by maternity protection (=during the entire period of pregnancy until 1 year after delivery (arts 272 and 278 GLA);
- war veterans;
- minors (art. 288 GLA);
- workers with a limited occupational disability degree of 20% or above.
Any disciplinary and economic (individual and collective) dismissal of the above-mentioned workers (except for trade union leaders, trade union delegates or worker's representatives) is subject to the authorization of the General Labour Inspectorate (see arts. 227(3), 233(3), 244(3), 278, 288 GLA). The law provides that a woman covered by the maternity protection has the right not to be dismissed unless she commits a disciplinary offence which makes it immediately and practically impossible to maintain the employment relationship and provided that the Labour inspector acknowledges that the offence is of such nature and grants authorization (art. 272(1)d) and (5) GLA)
- Specific rules apply to the disciplinary dismissal of trade union leaders, trade union delegates or worker's representatives: mandatory notification to the trade union or the body they belong, presumption of unfair dismissal, higher compensation for unfair dismissal.

Forma de la notificación del despido al trabajador: escrita

Remarks

- Individual economic dismissal: art. 232 GLA.
- Disciplinary dismissal: art. 52(2) GLA.

Plazo de preaviso:

Remarks

Art. 232 GLA: The period of notice for individual economic dismissals is at least 60 days for executives and high-level and medium-level technicians and 30 days for any other professional group.
Article 244(2) GLA provides the similar rule for collective dismissals.
No notice is required for disciplinary dismissals.

duración de servicio ≥ 6 meses:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

duración de servicio ≥ 9 meses:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

duración de servicio ≥ 1 año:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

duración de servicio ≥ 2 años:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

duración de servicio ≥ 4 años:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

duración de servicio ≥ 5 años:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

duración de servicio ≥ 10 años:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

duración de servicio ≥ 20 años:

  • Todos: 1 meses.
  • ejecutivos, técnicos de alto y medio nivel: 2 meses.

Indemnización sustitutiva de preaviso: Si

Remarks

Art. 234(3) GLA: Pay in lieu of notice for individual economic dismissal.
No notice for disciplinary dismissal.

Notificación a la administración: Si

Remarks

- Individual economic dismissals (= those concerning less than 5 workers):
Notification to and authorization from the provincial office of the Ministry of Labour is required only if the employees' representatives oppose the dismissal(s). (art. 231 GLA)

- Disciplinary dismissals: no such prior notification to the administration.

The authorization of the General Labour Inspectorate is however, always required for any disciplinary or economic dismissal which affects a protected worker ( war veteran, minor, women covered by the maternity protection and workers with a limited occupational disability degree of 20% or above ( see arts. 227(3), 233(3), 244(3), 278, 288 GLA).

Notificación a los representantes de los trabajadores: Si

Remarks

- Individual economic dismissal (= those concerning less than 5 workers):
The workers' representatives body shall be notified of the employer's intention to carry out the dismissals and provided with a written statement indicating in detail the reasons for the dismissal, the number of workers affected, possibility of transfer to other similar positions (art. 231 GLA).

- Disciplinary dismissals: no such notification required. However, the employee has the right to be assisted by another employee or a member of the trade union to which he or she is affiliated during the preliminary interview (art. 50(2) GLA). If the employee is a trade union member or a workers' representative, a copy of the dismissal notice shall be sent to the trade union or the representative body concerned.

Aprobación de la administración publica o de organismos judiciales: No

Remarks

- Individual economic dismissals (= those concerning less than 5 workers): The labour administration will not be involved if the employee's representatives approve the dismissal.
However, if the employees' representatives oppose the dismissal(s) and the employer maintain his/her decision to carry out the dismissal(s), he/she shall obtain the authorization form the provincial office of the Ministry of Labour which shall issue a decision within 10 days of the submission of the employer's request. In case the employer's request is rejected by the provincial office, the employer can still challenge the office's decision before the competent national director of industrial relations who will issue a final decision within 15 days.
- Disciplinary dismissals: no approval by the administration.

- The authorization of the General Labour Inspectorate is always required for any disciplinary or economic dismissal which affects a protected worker (war veteran, minor, women covered by the maternity protection and workers with a limited occupational disability degree of 20% or above ( see arts. 227(3), 233(3), 244(3), 278, 288 GLA).

Acuerdo de los representantes de los trabajadores: Si

Remarks

- Individual economic dismissal (= those concerning less than 5 workers):
The workers' representatives body shall be notified of the employer's intention to carry out the dismissals and provided with a written statement indicating in detail the reasons for the dismissal, the number of workers affected, possibility of transfer to other similar positions. The employee's representatives must issue a substantiated written decision within 7 days opposing or accepting the dismissal in which they analyse the reasons and the measures invoked by the employer and may suggest practical solutions.
If they accept the dismissal, it will be carried out according to the agreed terms.
If they oppose the dismissal and the employer maintain his/her decision to carry out the dismissal, he/she shall obtain the authorization form the provincial office of the Ministry of Labour (art. 231 GLA).

- Disciplinary dismissals: no approval required.

Definición de despido colectivo (número de empleados afectados): A dismissal is deemed collective if it concerns the termination of employment of five or more workers during the period of three months.

Remarks

Art. 238 GLA.

Consultación previa con los sindicatos (representantes de los trabajadores): Si

Remarks

Art. 240 GLA: the employer must endeavour to conduct at least three meetings with the employee's representatives in order to search for measures aimed at preventing or reducing the extent of the dismissal. If an agreement is reached, it shall be final. If no agreement is reached, a written statement indicated the reasons for the absence of agreement and the alternative solutions proposed by the employees' representatives shall be drawn.
The outcome of the consultation shall be communicated in writing to the provincial office of the Ministry of Labour.

Notificación a la administración: Si

Remarks

Art. 239 GLA: When an employer intends to carry out a collective dismissal, he/she must notify the employee's representatives and the provincial office of the Ministry of Labour. Such notification shall include:
- a description of the economic, technological and structural reasons underlying the collective dismissal;
- the intended measures relating to the reorganization or the reduction of activities;
- the number of workers affected by the dismissal;
- the selection criteria;
- other information necessary to assess the situation, the necessity and the size of the dismissal.

Notificación a los representantes de los trabajadores: Si

Remarks

Art. 239 GLA: When an employer intends to carry out a collective dismissal, he/she must notify the employee's representatives and the provincial office of the Ministry of Labour. Such notification shall include:
- a description of the economic, technological and structural reasons underlying the collective dismissal;
- the intended measures relating to the reorganization or the reduction of activities;
- the number of workers affected by the dismissal;
- the selection criteria;
- other information necessary to assess the situation, the necessity and the size of the dismissal.

Aprobación de la administración publica o de organismos judiciales: Si

Remarks

Art. 241 GLA:
If the parties fail to reach an agreement, within 10 days after the consultations ended, the provincial office of the Ministry of Labour shall convene a meeting with both parties and attempt to seek the agreement of the parties as to the execution or non-execution of the dismissal, and the extent of it.
The representative of provincial office of the Ministry of Labour must inform the employer and the workers' representatives whether or not he/she rejects the dismissal and state the reasons for his/her decision.
In absence of notification, he/she is deemed to have accepted the dismissal.
Art. 242 GLA: If the representative of provincial office objects to the collective dismissals, the employer can resort to the Director of collective request, the employer can resort to the competent director of industrial relations or the Ministry of Labour if the dismissal affects at least 25 workers. The competent authority will issue a final decision rejecting or authorizing the dismissal within 15 days of the employer's request.

Acuerdo de los representantes de los trabajadores: No

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): Si

Remarks

Art. 233 and 243 GLA: when deciding which workers are to be maintained, preference shall be given by the employer to the most qualified worker, and in case of equal qualifications, to the employee with the highest seniority.
Workers receive an additional one year of seniority per each child under the age of 14.
Note that the above-mentioned criteria also apply to the economic dismissals which do not fall within the definition (threshold levels) of collective dismissal.

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): Si

Remarks

Art. 240 GLA: During the consultation process, the parties shall attempt to search for measures aimed at avoiding or reducing the extent of dismissal.

On individual economic dismissals (less than 5 workers concerned): see art. 231 and 234 GLA.

Reglas de prioridad para la re-contratación: No

Indemnización por despido:

Remarks

No severance pay following a disciplinary dismissal.
However workers dismissed by way of individual or collective economic dismissal are entitled to redundancy pay (see below).

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 0 meses

duración de servicio ≥ 4 años: 0 meses

duración de servicio ≥ 5 años: 0 meses

duración de servicio ≥ 10 años: 0 meses

duración de servicio ≥ 20 años: 0 meses

Indemnización por despido por razones económicas:

Remarks

Arts. 261 GLA: In case of dismissal for reasons relating to the employer (= economic, technological and structural reasons), the worker is entitled to a redundancy payment calculated as follows: one month's wages for each year of service, within the limit of 5 years, this sum being complemented by 50% of the same monthly salary for each year of service exceeding 5 years of service. Both workers dismissed by way of collective dismissal and workers dismissed by way of individual economic dismissal are entitled to the above-mentioned redundancy payment.

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 1 meses

duración de servicio ≥ 2 años: 2 meses

duración de servicio ≥ 4 años: 4 meses

duración de servicio ≥ 5 años: 5 meses

duración de servicio ≥ 10 años: 7.5 meses

duración de servicio ≥ 20 años: 12.5 meses

Compensación por despido injustificado - libre determinación de la Corte: No

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): 1) Disciplinary dismissals:
-Unfair disciplinary dismissal: compensation in lieu of reinstatement shall be one month's wages for each year of service but not less than 3 months' wages (arts. 265 GLA
In addition, the employee shall be granted back pay from the date of dismissal until he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (arts. 229 GLA).
- If the disciplinary dismissal was based on prohibited grounds (see above - 'substantial requirements') or did not follow the required procedural rules (call for an interview, notice of dismissal), it will be declared null by the Court, and the employee will be reinstated. The employee must receive back pay from the effective date of his dismissal until his/her reinstatement (art. 228 GLA).
2) Economic dismissals:
- Individual dismissals:
In the event of an unfair individual economic dismissal (objectives reasons exist, but the the unfairness results from the following elements: refusal to transfer the employee to another existing job, violation of the priority rules for dismissal, compensation in lieu of reinstatement shall amount to 50% of the monthly wages for each year of service. (arts. 237 and 263 GLA).
If the employer did not obtain the required authorizations (authorization for carrying out the dismissal, or authorization for dismissing workers who special protection), compensation in lieu of reinstatement shall be one month's wages for each year of service but not less than 3 months' wages. (arts. 237(4) and 265 GLA)
The employee is also entitled to back pay from the date of the dismissal until the date he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (art. 229(3) GLA)
- Collective dismissals:
In the event a collective dismissal is declared unlawful (a just cause exist but the unlawfulness results from one the following elements: absence of valid grounds, non-compliance with the procedural requirements, non observance of the priority rules for selecting redundant workers, absence of the required authorization for workers enjoying special protection), the worker shall be awarded compensation in lieu of reinstatement in addition to redundancy payment. Such compensation shall amount to 50% of the monthly wages for each year of service. (arts. 248 and 263 GLA)
If the reasons alleged by the employer for carrying out collective redundancies were proved non-existent, or if the employer did not observe the priority rules for dismissals when selecting the employees, compensation in lieu of reinstatement shall be one month's wages for each year of service but not less than 3 months' wages (arts. 248(4) and 265 GLA).
The employee is also entitled to back pay from the date of the dismissal until the date he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (art. 229(3) GLA).

Posibilidad de readmisión: Si

Remarks

1) Disciplinary dismissals:
- Reinstatement is available in the event of an unfair disciplinary dismissal. If the employee does not wish to be reinstated, he or she will be awarded compensation for unfair dismissal. In addition, the employee shall be granted back pay from the date of dismissal until he/she obtains a new employment or until the date of the court's decision. However, back pay shall not exceed 9 months' wages (art. 229 GLA).
- Any disciplinary dismissal which is based on prohibited grounds (see above - 'substantial requirements') or which did not follow the required procedural rules (call for an interview, notice of dismissal) will be declared null by the Court. As a result, the employee shall be reinstated and receive pack pay from the effective date of his dismissal until his/her reinstatement (art. 228 GLA).
2) Economic dismissals:
- Individual dismissal:
In the event of unfair individual economic dismissal (i.e: absence of the required authorization, refusal to transfer the employee to another existing job, violation of the priority rules for dismissal, absence of authorization for the workers who enjoy special protection), the dismissed worker is entitled to be immediately reintegrated to his/her job. If he/she does not wish to be reinstated or if reinstatement is not possible, he/she will be awarded compensation. In both cases, the worker will receive back pay within a limit of 9 months' wages (art. 237 GLA).
- Collective dismissals:
In the event a collective dismissal is declared unlawful (absence of valid grounds, non-compliance with the procedural requirements, non observance of the priority rules for selecting redundant workers, absence of the required authorization for workers enjoying special protection), the employer must reinstate the employee, unless reinstatement is not possible or the employee does not wish to be reinstated. In addition, the employee shall receive back pay from the date of the dismissal until the date of the court's decision (art. 248 GLA).

Conciliación previa obligatoria: No

Remarks

The GLA provides for preliminary mandatory conciliation of individual labour disputes (art. 307 GLA). Conciliation is conducted by the provincial conciliation body dealing with labour disputes which is part of the provincial Public Prosecutor office (art. 308 GLA).
However, according to art. 307 GLA, there is no mandatory conciliation when the dispute relates to the following matters:
- Nullity of the individual disciplinary dismissal, that is in the event the employee alleges that the employer failed to observe the procedural requirements for such dismissal (e.g oral interview) or that the dismissal was based on prohibited grounds.
- Absence of the authorization required for any individual dismissal based on objective grounds (economic, technological or structural reasons)
- Unlawful collective dismissal because the employer failed to prove the existence of economic, technological or structural reasons, or because he/she did not follow the proper procedure.

For any other dismissal-related disputes, preliminary conciliation shall be carried out.

Corte o Tribunal competente: jurisdicción ordinaria

Remarks

The Labour Chamber of the Provincial Courts (Sala do Trabalho dos Tribunais Provinciais) has jurisdiction over individual labour disputes: art. 306 GLA.

Arbitraje: No

Remarks

No information found in the legislation reviewed.