CDD regulados: Si

Remarks

Article 46 (b) and (c) of Labour Code provides that an employment contract might be concluded in a fixed-term when: b) when the date for its completion is specified or when the occurrence of some fact or circumstance such as the construction of a work has been foreseen, which must necessarily end the employment relationship. In this second case, the activity of the worker himself, as the object of the contract, and not the result of the work must be taken into account; and, c) For specific works or services, when the price of the worker's services is adjusted globally or in elevation, from the beginning of the work until the work is completed, taking into account the result of the work, that is, the work carried out.

Article 47 -Contracts related to work that by their nature are permanent or continuous in the company, shall be considered as concluded for an indefinite period, even if they express a term of duration, if the cause that gave rise to them expires. to the subject of work for the provision of services or the execution of the same or similar works. The service time will be counted from the start date of the employment relationship, even if it does not coincide with that of the written contract. Consequently, fixed-term contracts for a specific work are exceptional and can only be concluded in cases where the accidental or temporary nature of the service to be provided or the work to be carried out so requires.



Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

Artice 46 (b) and (c) of Labour Code.

Although the worker receives advance payments on account of the work performed or to be performed, the individual employment contract must be understood for a specific work provided the conditions indicated in the preceding paragraph are met. The contract for specific works or services will last until the total execution of the one or until the total provision of the others.

Número máximo de CDD consecutivos: sin restricción

Remarks

Art. 48(2) LC provides that fixed-term contract can be expressly or tacitly renewed. No maximum authorized of renewals is specified if the maximum lenght of 12 months is not exceeded.

Duración máxima acumulativa de CDD consecutivos: 12meses

Remarks

Article 48 - The clause of an employment contract in which the worker is obliged to provide services for a term greater than one (1) year is void, but the nullity may only be recognized at the request of the worker. The same provision shall apply to services that require special technical preparation when the term of the contract is greater than five (5) years.
(1) However, any fixed-time contract is subject to extension or tacit. It will be in the latter way due to the fact that the worker continues to provide his services without opposition from the employer.

Duración maxima del periodo de prueba (en meses): 2 meses

Remarks

Article 49.- The trial period, which cannot exceed sixty (60) days, is the initial stage of the employment contract, and is intended by the employer to assess the skills of the worker, and by him , the convenience of working conditions. This period will be remunerated, and if at the end of either party expresses its will to terminate the contract, it will continue indefinitely.

Article 50.-The trial period must be stipulated in writing, and otherwise, the services are understood to be regulated by the general rules of the employment contract. In the employment contract of the domestic workers, the first fifteen (15) days of service is presumed as a trial period.

Article 52.-During the trial period, either party may terminate the contract, of their own free will, with or without just cause, without incurring any liability. Workers in trial period enjoy all benefits, with the exception of pre-notice and severance pay. If a new contract is concluded between the same contracting parties and for the same type of work before one (1) year has elapsed, this shall be understood for an indefinite time, without in this case the trial period taking place.

Excluded from protection against dismissal: No

Remarks

See Article 52 above.

Obligación de motivar el despido: Si

Remarks

Article 117 of Labour Code provides the party who decides unilaterally to put an end to the employment contract must give the notice in writing, personally to the other party, but if the contract is verbal, it can be donw in the presence of two witnesses, with an expression of the cause or motive that motivates it to make that determination.

Motivos autorizados (despido justificado): conducta del trabajador, capacidad del trabajador, razones económicas

Remarks

Article 11 provides general reasons that allow the termination of employment, basically related to: a) mutual consent; b) death of worker; c) permanent illness of worker; d) imprisonment of worker; e) unforeseeable circumstances or force majeure; f) circumstances that provoke loss of trust on managerial level workers; g) suspension of enterprise activities due to economic reasons for more than 120 days; h) bankruptcy or insolvency; i) determination by the competent authority.

Article 112 provides a list of just causes which allow the employer to dismiss an employee by disciplinary reasons without severance payment:
a) deceit by means of false letters of recommendation or certificates, b)- acts of violence, insults, or serious indiscipline at work against the employer or his/her relatives, c) deliberate material damages against the plant, machinery, tools, goods or merchandise and any serious negligence endangering the safety of the workers or the material, d) acts of immorality, e) revealing manufacturing secrets, f) criminal conviction,
g) unjustified absence from work without any justification for two consecutive working days, or a total of three days within the same months, h) repeated failure to adopt the preventive measures or to follow the proper procedure to avoid accidents at work and occupational diseases, i) obvious incapacity and inefficiency to fulfil the obligations under the contract, j) infectious disease or mnetal illness when the worker refuses treatment, k)serious misconduct and serious breaches of the obligations under the contract of employment.

Motivos prohibidos: embarazo, raza, religión, opinion política, origen social, afiliación sindical y actividades sindicales, situación económica

Remarks

Article 12 of the LC prohibits discrimination based on race, religion, political opinion and economic status, but only with regards to any social welfare, educational, cultural, recreational or commercial establishment operated for the use or benefit of the community in any undertaking or workplace, whether under private or state ownership.
Article 60 of the Constitution "declares punishable any discrimination based on sex, race, class and any other impinging on human dignity", adding that "the offences and the penalties for those in breach of this rule shall be established by law".

Under section 25 of the Labour Code, every individual contract of employment shall be deemed to include at least the guarantees and rights conferred on workers by, inter alia, the Constitution and the Labour Code.

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

Remarks

- Article 516 of Labour Code: employees who are members of the Board of Directors of a trade union, from their election up to six months after ceasing their duties, enjoy special protection: they can only be dimissed with prior authorization of the Labour judge (the autorization will be only delivered if the employer duly proved the existence of a just cause).
If the employer fails to comply with this requirement, he or she will be liable to pay the 6 months' salary to the trade union organization.
Article 124 of Labour Code provides protection against dismissal of pregnant or breastfeeding women, which will remain until the end of the post-natal rest (3 months after labour) or until a judicial decision declaring the termination of the contract.
Articles 144 and 145 provide rules for termination of employment of pregnant or breastfeeding workers, in which case the employer must to obtain prior authorization from the Labour Inspector (or the mayor). Such authorization to dismiss can only be given if the existence of one of the just causes listed in art. 112 is proven.


Forma de la notificación del despido al trabajador: escrita

Remarks

Article 117 of Labour Code provides the party who decides unilaterally to put an end to the employment contract must give the notice in writing, personally to the other party, but if the contract is verbal, it can be donw in the presence of two witnesses, with an expression of the cause or motive that motivates it to make that determination.


Plazo de preaviso:

Remarks

According to article 116 Labour Code either party can terminate an employment contract of indefinite duration provided that advance notice is given.
The statutory notice period varies according to the worker's length of service, as follows:
- 24 hours, if the length of service is less than 3 months;
- 1 week if the length of service is between 3 and 6 months;
- 2 weeks if the length of service is between 6 and 1 year;
- 1 month if the length of service is between 1 and 2 years;
- 2 months if the length of service is more than 2 years.

duración de servicio ≥ 6 meses:

  • Todos: 0.5 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0.5 meses.

duración de servicio ≥ 2 años:

  • Todos: 2 meses.

duración de servicio ≥ 4 años:

  • Todos: 2 meses.

duración de servicio ≥ 5 años:

  • Todos: 2 meses.

duración de servicio ≥ 10 años:

  • Todos: 2 meses.

duración de servicio ≥ 20 años:

  • Todos: 2 meses.

Indemnización sustitutiva de preaviso: Si

Remarks

Article 118 of Labour Code provides that the worker who did not give prior notice, or comply with the legal requirements, will be obliged to pay the employer an amount equivalent to half the salary that corresponds to the end of the notice. In the event that the employer does not comply with the law requirements, the worker is entitled to an amount equivalent to the respective salary during the period of notice.

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Remarks

Except in the event of a dismissal of a protected worker (pregnant women and members of the board of directors of a trade union) whose dismissal must be authorized by a labour judge and/or the labour inspector (see arts. 124, 144, 145, 516 LC).

Acuerdo de los representantes de los trabajadores: No

Definición de despido colectivo (número de empleados afectados): There is no statutory definition and no regulation as such of collective dismissals for economic reasons.
However, the LC regulates the suspension of the employment contracts for economic reasons and allows the employer (and the employee) to terminate employment contracts which have been suspended for economic reasons for more than 120 days without incurring liability.

Remarks

See art. 111 (h) in combination with art. 100 Labour Code.

Art. 111 h) allows either party to terminate a contract which has been suspended for more than 120 days in accordance with the procedural requirements applicable to such suspension, which causes are defined in Article 100 summarized below:
- lack of raw material and driving force for the negotiation not attributable to the employer
- overproduction
- unprofitable activity
- lack of funds and impossibility to obtain them.

Note also that fortuitous event or force majeure is also a cause for termination of employment by either parties (art. 111 (h) LC).

Consultación previa con los sindicatos (representantes de los trabajadores): No

Notificación a la administración: Si

Remarks

Art. 102 LC requires the employer to notify in writing the workers affected by the suspension at least 30 days in advance and to send a copy of this notification to the Ministry of Labour and Social Welfare.
The suspension of employment contracts for economic reasons shall be authorized by the Ministry of Labour and Social Welfare (La Secretaría de Trabajo y Previsión Social): art. 101 LC.

Notificación a los representantes de los trabajadores: No

Remarks

No obligation to notify the workers' representatives of the suspension. The law only requires the employer to notify in writing the workers affected by the suspension at least 30 days in advance and to send a copy of this notification to the Ministry of Labour and Social Welfare (art. 102 LC).

Aprobación de la administración publica o de organismos judiciales: Si

Remarks

The suspension of employment contracts for economic reasons shall be authorized by the Ministry of Labour and Social Welfare (La Secretaru00eda de Trabajo y Previsiu00f3n Social): art. 101 LC.

Acuerdo de los representantes de los trabajadores: No

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): No

Reglas de prioridad para la re-contratación: No

Notas / Comentarios

Notas

The procedural requirements reviewed in this section apply to the suspension of an employment contract for certain reasons listed in the law, which include economic reasons.
That procedure is relevant to dismissal for economic reasons insofar as the suspension of a contract (for economic reasons) for more than 120 days is a valid cause for termination of employment by either parties in the Labour Code. There are no additional specific procedural requirements for terminating those employment contracts which have been suspended for economic reasons.

Indemnización por despido:

Remarks

There is no general right to severance pay for justified dismissals (i.e those based on the conduct or the capacity of the worker, or on economic reasons). However, in the event of unjustified dismissal (dismissal without cause) and indirect dismissal (termination by the employee caused by actions of the employer listed in art. 114 LC, any employee under a contract of indefinite duration is entitled to compensation (Auxilio de cesantía) which varies according to the employee's length of service, as follows (art. 120 LC):
- the length of service is between 3 and 6 months: 10 days of salary,
- from six months to one year of service: 20 days of salary,
- after one year of continuous services: one month's salary for each year of service, up to a maximum of 25 months' salary.

However, according to article 120A LC, the cap is reduced to 15 months' salary in micro-enterprises, which are defined as enterprises with a maximum of 10 employees. Note that according to the LC, in enterprises with more than 10 employees, the severance pay shall be paid as follows:
- after 15 years of service any employee who voluntarily terminates his employment is entitled to 35% of the respective accrued severance pay;
- after 6 months of continued service in the event of an employee's death, the heirs are entitled to 70% of the respective accrued severance.

duración de servicio ≥ 6 meses: 0.7 meses

duración de servicio ≥ 9 meses: 0.7 meses

duración de servicio ≥ 1 año: 1 meses

duración de servicio ≥ 4 años: 4 meses

duración de servicio ≥ 5 años: 5 meses

duración de servicio ≥ 10 años: 10 meses

duración de servicio ≥ 20 años: 20 meses

Indemnización por despido por razones económicas:

Remarks

No specific redundancy pay. In the event of termination of employment following a suspension of an employment contract for more than 120 days for economic reasons authorized by the administration, employee are not entitled to any severance payment.
An employee under a contract of indefinite duration who is dismissed for economic reasons will be only entitled to severance pay and only if the employment was terminated by way of unjustified dismissal.

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 0 meses

duración de servicio ≥ 2 años: 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

Notas / Comentarios

Notas

1) Dismissal for a just cause: no severance pay
2) Unjustified dismissal and indirect dismissal: severance pay = compensation for unfair dismissal [auxilio de cesantía].
3) No specific redundancy pay. In the event of termination of employment following a suspension of an employment contract for more than 120 days for economic reasons authorized by the administration, employee are not entitled to any severance payment.
An employee under a contract of indefinite duration who is dismissed for economic reasons will be only entitled to severance pay if his or her employment was terminated by way of unjustified dismissal.

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

Remarks

Article 113 provides the possibility of challenge the reasons of fair dismissal in a Labour Court. If the employer does not prove this cause, the worker is entitled to the respective severance pay, as well as damages and the wages that the worker would have received from the termination of the contract until the date a judicial decision determines the end of the contract. Moreover, the worker can request the reinstatement, at least on equal terms.

Compensation for unfair dismissal - Are there legal limits?:

No

Remarks

Article 118 does not provide limits for possible compensation for damages for unfair dismissal.

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): In the employer fails to prove the existence of one of the just causes listed in art. 112 LC, and reinstatement is not ordered by the judge, the employer will be liable to pay the employee compensation of an amount equivalent to the indemnity payable in the event of unjustified dismissal (auxilio de cesantía) which varies according to the employee's length of service, as follows (art. 120 LC):
- the length of service is between 3 and 6 months: 10 days of salary,
- from six months to one year of service: 20 days of salary,
- after one year of continuous services: one month's salary for each year of service, up to a maximum of 25 months' salary.
However, according to article 120A LC, the cap is reduced to 15 months' salary in micro-enterprises, which are defined as enterprises with a maximum of 10 employees.
In addition, the employer shall pay the back wages from the date of the dismissal until the decision of the labour judge is final.

Remarks

See art. 113 LC combined with art. 120 LC.
On back wages, see art. 113 LC.

Posibilidad de readmisión: Si

Remarks

Art. 113 LC. Reinstatement is available is lieu of compensation for unfair dismissal if the employer fails to prove the existence of one of the just causes listed in art. 112 LC.

Conciliación previa obligatoria: Si

Remarks

Art. 750 LC: preliminary conciliation is carried out by labour judge.

Corte o Tribunal competente: tribunal del trabajo

Remarks

Arts. 666, 679 LC.
First instance judges are the "Juzgados de Letras del Trabajo".
Appeals are heard by the "Cortes de Apelaciones del Trabajo".

Arbitraje: No

Carga de la prueba: ambos

Remarks

Articles 729 to 739 of Labour Code and article 238 of Code of Civil Procedure.