Razones de utilización legítima de CDD: sin restricción

Número máximo de CDD consecutivos: sin restricción

Duración máxima acumulativa de CDD consecutivos: sin limitación

Duración maxima del periodo de prueba (en meses): 3 mes(es)

Remarks

Se. 6(2) CSA: " the first 12 weeks of any employment under an oral contract of service is probationary employment and may be terminated at will by either party without notice".

Duración maxima del periodo de prueba (en meses): 3 mes(es)

Remarks

Se. 6(2) CSA: " the first 12 weeks of any employment under an oral contract of service is probationary employment and may be terminated at will by either party without notice".

Obligación de motivar el despido No Motivos autorizados (despido justificado): ninguno

Remarks

Either party may terminate the employment contract with notice. No grounds are required for dismissal with notice of a contract for an indefinite period (sec. 6(3) CSA).
However, according to sec. 7(1) CSA, an employer may dismiss an employee, without giving due notice, in the
following circumstances:
(a) where an employee is guilty of misconduct, whether in the course of their duties or not, inconsistent with the fulfilment of the conditions of the contract of service;
(b) for wilful disobedience of lawful orders given by the employer;
(c) for repeated substantial neglect of their duties;
(d) for absence from work without the permission of the employer or without reasonable excuse;
(e) for lack of skill which the employee had assured the employer of possessing;
(f) abandonment of employment by the employee;
(g) by agreement, in writing, between the parties;
(h) by expiry of the term of the contract of service.

In addition, art. 10 CSA provides for the employee's right to severance pay in the event of termination of employment for economic reasons (i.e business closure or restructuration, change of ownership)

Motivos prohibidos: estado civil, embarazo, responsabilidades familiares, presentación de una queja contra el empleador, color, sexo, religión, opinion política, origen social, nacionalidad, edad, afiliación sindical y actividades sindicales, discapacidad, denuncia/ alerta, origen étnico

Remarks

* Except for trade union membership and activities, all those grounds are listed in the Equality of Opportunity and Treatment in Employment and Occupation Act as prohibited grounds of discrimination (sec. 3(2)). Dismissal on those grounds is prohibited under sec. 4(3)(e) of that Act.
The Act also make it an offence to commit an act of victimisation against a person because that person
- has made (or proposes to make) a complaint or brought proceedings under this Act,
- has furnished information or testified before any person performing any power under this Act or proposes to do so;
- has made in good faith, allegation that a person has committed an unlawful act of discrimination (sec. 20(2) EOTEOA).
* Dismissal or any discriminatory acts on the grounds of trade union membership or activities is prohibited under the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act. (sec. 5(1) TUEOA)

Trabajadores que gozan de una protección particular (fuero):

Forma de la notificación del despido al trabajador: sin forma particular exigida

Remarks

The form of the notice of termination to be given to the employee is not specified in the CSA.

Plazo de preaviso:

Remarks

In the event of a contract of employment for an indefinite period, which is any contract of more than twelve continuous weeks, the period of notice to be given by an employer to an employee shall be not less than (sec. 6(1) and 6(3) CSA):
- one week's notice, if the period of continuous employment is more than twelve weeks but less than two years;
- two weeks' notice, if the period of continuous employment is two years or more but less than five years;
- four weeks' notice, if the period of continuous employment is five years or more but less than ten years; and
- six weeks' notice, if the continuous period of employment is more than ten years.

duración de servicio ≥ 6 meses:

  • Todos: 1 semana(s).
  • Todos: 1 semana(s).

duración de servicio ≥ 9 meses:

  • Todos: 1 semana(s).
  • Todos: 1 semana(s).

duración de servicio ≥ 2 años:

  • Todos: 2 semana(s).
  • Todos: 2 semana(s).

duración de servicio ≥ 4 años:

  • Todos: 2 semana(s).
  • Todos: 2 semana(s).

duración de servicio ≥ 5 años:

  • Todos: 4 semana(s).
  • Todos: 4 semana(s).

duración de servicio ≥ 10 años:

  • Todos: 6 semana(s).
  • Todos: 6 semana(s).

duración de servicio ≥ 20 años:

  • Todos: 6 semana(s).
  • Todos: 6 semana(s).

Indemnización sustitutiva de preaviso: Si

Remarks

Sec. 6(5) CSA.

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Definición de despido colectivo (número de empleados afectados): No statutory definition collective dismissal.

Remarks

However economic dismissals are referred to in the CSA with regard to the employee's entitlements to severance pay.
An employee, who has been continuously employed for more than 104 weeks (counted after the age of 16), is to be considered as retrenched if the dismissal is attributable wholly or mainly to:
(a) the fact that their employer has ceased, or intends to cease, to carry on the business for the purposes for which the employee was employed, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or
(b) the fact that the requirements of the business for employees to carry out work of a particular kind, or for an employee to carry out work of a particular kind in the place where they were so employed, have ceased or diminished or are expected to cease or diminish (secs. 10 and 14(1) CSA).

Definición de despido colectivo (número de empleados afectados): No statutory definition collective dismissal.

Remarks

However economic dismissals are referred to in the CSA with regard to the employee's entitlements to severance pay.
An employee, who has been continuously employed for more than 104 weeks (counted after the age of 16), is to be considered as retrenched if the dismissal is attributable wholly or mainly to:
(a) the fact that their employer has ceased, or intends to cease, to carry on the business for the purposes for which the employee was employed, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or
(b) the fact that the requirements of the business for employees to carry out work of a particular kind, or for an employee to carry out work of a particular kind in the place where they were so employed, have ceased or diminished or are expected to cease or diminish (secs. 10 and 14(1) CSA).

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

Notificación a la administración: No

Remarks

However, prior notification to the Labour Commissionner is required in the event of business closure. (sec. 35 (1) Registration, Status and Recognition of Trade Unions and Employers' Organisations Act).

Notificación a los representantes de los trabajadores: No

Remarks

Prior notification to the trade union is only required in the event of business closure (sec. 35 (1) Registration, Status and Recognition of Trade Unions and Employers' Organisations Act).

Aprobación de la administración publica o de organismos judiciales: No

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

There are no specific notification or consultation requirements applicable to collective dismissals.
However, any employer who intends to close an undertaking must notify the trade union and the Labour Commissionner of its intention and indicate the reasons for closure and the number of categories affected (sec. 35 (1) Registration, Status and Recognition of Trade Unions and Employers' Organisations Act).

Indemnización por despido:

Remarks

No general right to severance pay arising from dismissal based on reasons other than economic reasons (see redundancy payment).

duración de servicio ≥ 6 meses: 0 mes(es)

duración de servicio ≥ 9 meses: 0 mes(es)

duración de servicio ≥ 1 año: 0 mes(es)

duración de servicio ≥ 4 años: 0 mes(es)

duración de servicio ≥ 5 años: 0 mes(es)

duración de servicio ≥ 10 años: 0 mes(es)

duración de servicio ≥ 20 años: 0 mes(es)

Indemnización por despido por razones económicas:

Remarks

* An employee, who has been continuously employed for more than 104 weeks (counted after the age of 16), is entitled to severance pay if he or she has been dismissed dismissed by his or her employer "by reason of the fact that an organisation where he or she is so employed is closed down, or reorganised or amalgamated with another organisation under a new name or change of ownership has taken place".
Dismissal is deemed to be based on those reasons if the dismissal is attributable wholly or mainly to:
"(a) the fact that his or her employer has ceased, or intends to cease, to carry on the business for the purposes for which the employee was employed by him or her, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed; or
(b) the fact that the requirements of that business for employees to carry out the work of a particular kind, or for an employee to carry out the work of a particular kind in the place where he or she was so employed, have ceased or diminished" (see sec. 10 CSA).

* According to regulation 14 of the Contract of service regulations, an employee who becomes redundant under the meaning of the Act shall receive a severance payment calculated as follows:
- one weeks' wages for each period of 52 weeks of continuous employment covering a period up to 156 weeks;
- two weeks' wages for 52 weeks of continuous employment covering a period of employment in excess of 156 weeks but not exceeding 364 weeks;
- three weeks' wages for each period of 52 weeks of continuous employment covering a period in excess of 364 weeks.
[i.e an employee with 20 year's service would be entitled to:
(3 x 1 week) + (4 x 2 weeks) + (13 x 3 weeks) = 50 weeks' wages]

* Redundancy payment is not due in the following circumstances:
(a) where a man has reached the age of 65 and a woman the age of 60;
(b) where the employer is entitled to terminate the contract of service of the employee without notice by reason of the employee's conduct;
(c) where the contract of service is for a fixed term and that term expires without being renewed under the same contract (sec. 11 CSA).

duración de servicio ≥ 6 meses: 0 semana(s)

duración de servicio ≥ 9 meses: 0 semana(s)

duración de servicio ≥ 1 año: 0 semana(s)

duración de servicio ≥ 2 años: 2 semana(s)

duración de servicio ≥ 4 años: 4 semana(s)

duración de servicio ≥ 5 años: 7 semana(s)

duración de servicio ≥ 10 años: 20 semana(s)

duración de servicio ≥ 20 años: 50 semana(s)

Compensación por despido injustificado - libre determinación de la Corte: Si

Remarks

- The CSA does not contain provisions on avenues for redress for unfair dismissal. Non-compliance with procedural requirements is the only aspect covered by the CSA.
Indeed, the CSA refers the determination by a tribunal of "any question (...) as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice". (sec. 26(1)). However, there is no provision on any specific compensation to be awarded by the tribunal in such cases.

- Under the Equality of Opportunity and Treatment in Employment and Occupation Act, an employee who is a victim of any discriminatory act (including discriminatory dismissals), may apply for damages from the employer for any loss caused directly or indirectly as a result of the contravention (sec. 24 (a) EOTEOA). The law does not foresee any cap on such damages.

- See also Section 11 of the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, for discriminatory dismissal based on trade union membership or activities. This provision does not set any limits on the amount of compensation to be awarded.

Posibilidad de readmisión: Si

Remarks

- Reinstatement is only available as a remedy for discriminatory dismissal under the Equality of Opportunity and Treatment in Employment and Occupation Act.
According to sec. 24(2) (b) of the EOTEOA, an person who is aggrieved by a discriminatory act prohibited under that law (which includes discriminatory dismissal) can apply for "order to employ, re-employ or reinstate any person, although the vacancy in question has already been filled and although the employer may be liable to any claim arising from the need to dismiss or terminate the services of any other employee who has been engaged".
- According to section 11(5) of the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, if the Industrial Relations Tribunal finds that an employee has been dismissed on the grounds on his/her trade union membership or activities, the employee is entitled to reinstatement, along with any remedy deemed appropriate, unless reinstatement is not reasonable practicable.
- As already indicated, the provision of the CSA on avenues for redress only refers to the determination by a tribunal of "any question (...) as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice" (sec. 26(1)). The CSA is silent as to the remedies available in such cases, and therefore reinstatement does not seem to be available to the employee.

Conciliación previa obligatoria: No

Remarks

No information found in the CSA or the EOTEOA .

The TUEOA (which deals with dismissal based on trade union activities/membership) provides for the possibility to settle the dispute by conciliation mediation or arbitration of the parties so agree. In such cases, the Industrial Relations Tribunal would only be competent in the event of failure to obtain settlement of the dispute through conciliation mediation or arbitration (sec. 7).

Corte o Tribunal competente: jurisdicción ordinaria

Remarks

- CSA, sec. 26(1): "Any question arising under this Part as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice, shall, in accordance with the regulations made under this Part be referred to and determined by a tribunal".
- The remedial provision of EOTEOA (which covers discriminatory dismissals) refers to "any court of competent jurisdiction" (sec. 24).

- However, pursuant to the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, the Industrial Relations Tribunal (which is a specialized tripartite body) is competent to hear disputes over dismissals of employees on account of their trade union membership of their pursuit of lawful trade unions activities (sec. 11 and 45).

Arbitraje: Si

Remarks

No provision found as to the settlement of dismissal disputes through arbitration in the CSA and the EOTEOA.
However, the TUEOA (which deals with dismissal based on trade union activities/membership) provides for the possibility to settle the dispute by conciliation mediation or arbitration of the parties so agree. In such cases, the Industrial Relations Tribunal would only be competent in the event of failure to obtain settlement of the dispute though conciliation mediation or arbitration (sec. 7).