CDD regulados: Si

Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

See art . 25-27 LC.
The LC authorizes contracts concluded for a limited (and specified) term (art. 25 LC) and contracts concluded to perform a specific work (art. 26 LC).
According to art. 25 LC, contracts with a limited duration can only be concluded to perform temporary or casual work.
The term of the contract and objective circumstances that justify the use of such temporary employment contract must be indicated in writing in the contract (art. 23(4) LC)
Art. 27 LC stipulates that a FTC can be concluded in order to replace a worker whose contract is temporarily suspended.

Número máximo de CDD consecutivos: sin restricción

Duración máxima acumulativa de CDD consecutivos: sin limitación

Duración maxima del periodo de prueba (en meses): 1 meses

Remarks

Art. 28 LC: maximum 30 days. Within this period either party can terminate the contract without cause.
Once this time is exceeded, the employment contract will be considered open-end, unless the parties have a fixed term of termination according to the cases provided by law. A new probationary period cannot be stipulated, if a new contract between the same contracting parties and the same work is concluded before one year has elapsed.

Obligación de motivar el despido: Si

Remarks

Article 60 of Labour Code provides that regardless the motive in which is based the termination, at the end of every employment contract the employer must provide a letter to the worker, containing the dates of beginning and end of the contratc, salary received and type or work performed. Should the worker requires, the employer must also include information related to the performance and reasons for termination.

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

Remarks

*Article 55 LC: It is legally presumed that a worker is dismissed without just cause, except for those causes listed in the law.

*Art. 50 LC provides for a limited list of justified grounds for dismissals which relate mainly to the worker's conduct and capacity.
The employer can legally terminate (without notice) the contract under the following grounds:
- if the worker deceived the employer by means of false letters of recommendation or certificates when the contract was concluded. This ground ceases to be operative after the worker has completed 30 day's employment;
- due to the worker's repeated negligence;
- if the employer lost confidence in an employee exercising managerial surveillance or similar functions;
- if the worker reveals manufacturing secrets or communicates administrative matters to the detriment of the undertaking;
- if the worker commits serious acts of immorality inside the undertaking or while performing work outside the workplace
- if the worker commits disrespectful acts against the employer or his/her relatives, except in the case of provocation
- if the workers commits acts causing serious disruption to the company's activity;
- if the worker (either intentionally or by negligence) seriously endangers the safety or operation of the establishment, or the persons therein safety or activity of the workers, or their health;
- if the worker deliberately damages the plant, machinery, tools, work implements, goods or merchandise
- if the worker is absent from work without any justification for two consecutive working days, or a total of three days within the same months; or
- If the worker, after imprisonment or pre-trial detention, comes back to work, within three days from the date of release, and s/he committed a crime against the employer or his/her relatives
- If the worker commits serious breaches of the obligations under the contract of employment
- In the event of disobedience to the employer (or employer's representative)
- If the worker drinks alcohol or takes drugs during working time or if s/he works under the effect of alcohol or drugs
- If the worker does not fulfil his/her obligations under art 24 LC
* According to art. 51 LC, inefficiency or negligence are not valid reason for dismissal, provided that they are caused by a disease or by a transfer to a superior assignment. In this case, the worker has the right to be reinstated in his/her previous position.
* According to art. 49 LC, the employment contract shall terminate, following a judicial decision authorizing the dismissal, in case of:
- closure of all or part of the undertaking or establishment, or final reduction of the activities, resulting from the unprofitably of the business;
- business closure caused by the exhaustion of the substance exploited by the extractive industry.

Motivos prohibidos: embarazo, licencia de maternidad, raza, color, sexo, religión, opinion política, origen social, nacionalidad, afiliación sindical y actividades sindicales, discapacidad, estatus VIH

Remarks

- The general provision on non-discrimination in employment (art. 30(12) LC) stipulates that employers are not permitted "to establish any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction or social origin, except in cases provided for by the law aimed at protecting the person of the work".
- Art. 30(15) LC (inserted by DL N°611 of 2005) prohibits discrimination on the basis of the HIV/AIDS status.
In addition, the Act on the prevention and control of human immuno-deficiency virus infection (HIV/AIDS) (Legislative Decree No. 588 of 24 October 2001) guarantees the right of "any person living with HIV/AIDS" to obtain employment that does not involve risky contact, and not to be dismissed or forced to accept inferior pay, benefits or conditions on the grounds of his or her illness (art. 5.a).
- On pregnancy and maternity leave, see art. 113 LC: An employer cannot dismiss a pregnant women by way of de facto dismissal or dismissal following a court's decision during the entire period of pregnancy and until the end of the maternity leave unless the alleged cause for dismissal relates to facts which took place prior to the beginning of pregnancy. Even in such case, the dismissal will only be effective immediately after the end of the maternity leave.
- Persons with disabilities are entitled to protection against all discrimination (art. 2.1 of Decree No. 888 of 2 May 2000, on equal opportunities for persons with disabilities), and in particular, "to obtain employment and carry on a paid occupation and to be protected from dismissal on grounds of his or her disability" (art. 2.5).
- On trade union activities, see art. 205(c) LC which prohibits discrimination between workers and retaliatory action based on trade union activities.
- It is forbidden to dismiss a worker who has been diagnosed, or certified through official institutions of the health sector, to be suffering from chronic disabling diseases that require frequent medical checks and rehabilitation or who needs specialized medical and technical care prior to the validation of the treating doctor. (art.30 (17)LC)
- It is also forbidden to use as a cause of justified dismissal, the credit record of the worker, except by judicial commandment or exceptions established in the law. (art. 30 (16) LC)


Note that, as expressed in the previous category, El Salvador has a limited list of valid ground for dismissal. That means that although many grounds are not expressly observed as prohibited in the legal text, they are still prohibited by exclusion to art. 55 LC.

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

Remarks

- On pregnancy and maternity leave, see art. 113 LC: An employer cannot dismiss a pregnant women by way of de facto dismissal or dismissal following a court's decision during the entire period of pregnancy and until the end of the maternity leave unless the alleged cause for dismissal relates to facts which took place prior to the beginning of pregnancy. Even in such case, the dismissal will only be effective immediately after the end of the maternity leave.
- Trade union representatives:Previous authorization from the competent authority is required for the dismissal of a worker covered by trade union immunity (Constitution, art. 47, and Labour Code, art. 248). Trade union immunity protects trade union leaders, candidates for election to the union board, workers in the process of establishing or organizing a union and the founding members. This protection is subject to certain conditions with regard to numbers of persons protected and periods of protection which can be increased through collective agreements.
During the process of establishing the union, protection lasts for not more than 60 days from the date of notification of the administrative authority (art. 248.a) and for the founding members for up to 60 days following registration of the union (art. 214). In the case of trade union representatives, protection lasts for up to one year from the expiry of their mandate and for candidate officers, from one month before the elections take place until one week after the election.
-Art. 308-A LC: Workers who suffer from chronic illness that cause disabilities, requiring frequent medical controls, rehabilitation or specialized medical care, cannot be dismissed and cannot suffer any discount on their wages in relation to these conditions. The stability at work will last from the date when a relevant medical report certifying the medical condition has been issued and will be extended until three months after the completion of the medical treatment.

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

Remarks

Art. 55 LC: The dismissal must be communicated to the worker by the employer or by his/her representatives, otherwise it is considered null and void, except when a written letter of dismissal signed by the employer or his/her representatives is delivered to the employee.

However, note art. 60. At the end of any contract, whatever the cause that motivated its termination, the employer must give written notice to the employee expressing: 1) starting and termination date of its work 2) type of work undertaken 3) last salary earned.
If the worker demands so, it can also include: 4) description of the worker’s efficiency and behaviour 5) reason of termination of contract.
Note that: it is not the official notification of the worker’s dismissal, it is rather a complementary document to the end of the contract.

duración de servicio ≥ 6 meses:

  • Todos: 0 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0 meses.

duración de servicio ≥ 2 años:

  • Todos: 0 meses.

duración de servicio ≥ 4 años:

  • Todos: 0 meses.

duración de servicio ≥ 5 años:

  • Todos: 0 meses.

duración de servicio ≥ 10 años:

  • Todos: 0 meses.

duración de servicio ≥ 20 años:

  • Todos: 0 meses.

Indemnización sustitutiva de preaviso: No

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Remarks

However, prior authorization from the competent jurisdictional authority is required for the dismissal of a worker covered by trade union immunity (art. 248 LC and 47 of the Constitution).

Acuerdo de los representantes de los trabajadores: No

Notas / Comentarios

Notas

There are no statutory notice periods to be observed in the event of dismissal.

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

Art. 49The LC foresees termination of employment with no liability on the part of either party in the following cases:
- closure of all or part of the undertaking or establishment, or final reduction of the activities, resulting from the unprofitably of the business and authorized by the competent labour judge.
- business closure caused by the exhaustion of the substance exploited by the extractive industry and authorized by the labour judge.

In addition, the LC (art. 48) provides for termination without judicial intervention in the event of:
- dissolution of the undertaking in case the business has ended, orf an undertaking
- partial or total cessation of activities following bankruptcy , when it has been decided by the Trade Union or the Board of Creditors, and considered fortuitous and not negligent.

With the exception of those reasons, economic reasons are not considered to be a good cause for dismissal. Therefore dismissal based on economic reasons will be treated as de facto dismissal "despido de hecho" and will entail payment of compensation for unjustified dismissal.

Remarks

See art. 48 and 49 LC.

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

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Remarks

However, prior judicial authorization is required in the folllowing cases:
- closure of all or part of the undertaking or establishment, or final reduction of the activities, resulting from the unprofitably of the business;
- business closure caused by the exhaustion of the substance exploited by the extractive industry (art. 49 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

Indemnización por despido:

Remarks

According to article 58 of Labour Code, in case the termination of employment contracts occurs without a cause, the worker is entitled do 30 days of salary per year of service or respective fraction of it, not less than 15 days of salary. The parameters to the calculation of severance pay must consider the salary as a maximum amount of 4 times the statutory minimum wage.

duración de servicio ≥ 6 meses: 0.5 meses

duración de servicio ≥ 9 meses: 0.8 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:

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

1) Dismissal with cause (conduct or capacity related): no severance pay See art. 50, 51 and 52 LC which state that there is no employer’s responsibility.
2) De facto dismissal (dismissal without cause): compensation for unjustified dismissal equivalent to 30 day's pay for each year of service (or fraction) with a minimum of 15 days' pay. (Art. 58 LC)
As already indicated, any dismissal for economic reasons which do not fall within the limited categories specified in the LC (see above 'Definition of collective dismissal') will be treated as a 'de facto dismissal' and will therefore entail payment of compensation for unjustified dismissal by the employer.


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

Remarks

Art. 58 LC.

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

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): See article 58 of Labour Code above (compensation for unfair dismissal on the basis of 30 days of salary per year of lenght of service. The calculation will take into account a salary basis not higher than 4 times the minimum wage).
In addition, the employee is entitled to receive back pay which shall accrue from the date of the complaint until the court decision. However it shall not exceed 35 days' wages (increased by max. 20 days if the case goes to appeal or cassation).

2) According to article 59 of Labour Code, when a FTC worker is dismissed without just cause before the expiration of the contract, the employer has pay compensation which shall amount to the wages the worker would have been entitled to until the expiry of the FTC.

Remarks

See art. 58 and 59 LC.
On back pay, see art. 420 LC.

Posibilidad de readmisión: No

Remarks

The Labour Code does not provide for the reinstatement of workers who have been unfairly dismissed.

Conciliación previa obligatoria: Si

Remarks

Only in dismissals that lead to judicial procedure. Art. 385 LC.

Corte o Tribunal competente: tribunal del trabajo

Remarks

Art. 369 LC - "los jueces laborales" in first instance and "las Cámaras de lo Laboral" in second instance.

Arbitraje: No

Remarks

Arbitration is only foreseen for the settlement of collective disputes. due to economic or interest reasons. (Art. 480 and 500-514 LC).

Note that art. 24 Conciliation, Mediation and Arbitration Act excludes labour disputes from its scope of application.

Carga de la prueba: ambos

Remarks

Article 414 (1) of Labour Code