Forma de la notificación del despido al trabajador:
Art. 19 LA provides that the notice of termination for employees, who are covered by the job security provision, shall be given by the employer in written form. Besides, the employer is obliged to specify the ground of termination clearly and definitely.
[Art. 19 LA also requires the employer to allow an employee under a contract with an indefinite duration to defend himself against the allegations made against him or her in the event of dismissal for reasons related to the worker's conduct or performance].
The notice form for the termination of employees excluded from the job security provisions is not specified.
New: The 2012 Code of Obligations -that regulates the contract of workers not covered by the Labour Act- provides that, in relation to termination of employment related to the marketing facilities agreements, if the commission paid to the employee comprises at least one-fifth of the salary and the commission is influenced by seasonal fluctuations, the employer is entitled to terminate the employment contract as of the expiration of the former season with two months' notice prior to the start of the new season. At the same time, the employee is also entitled to terminate the contract with two months' notice before the start of the new season if he or she has worked until the end of the former season and also continued to work after the season. Nevertheless, the new Code of obligations doesn't provide any specific form of notification to the worker to be dismissed.
Plazo de preaviso:
*Art. 17 LA. Before terminating a continual employment contract made for an indefinite period, a notice to the other party must be served by the terminating party. The contract shall then terminate:
1. in the case of an employee whose employment has lasted less than 6 months, at the end of the second week following the serving of notice to the other party;
2. in the case of an employee whose employment has lasted for 6 months or more but for less than 1,5 years, at the end of the fourth week following the serving of notice to the other party;
3. in the case of an employee whose employment has lasted for 1,5 years or more but for less than 3 years, at the end of the sixth week following the serving of notice to the other party;
4. in the case of an employee whose employment has lasted for more than 3 years, at the end of the eighth week following the serving of notice to the other party.
These are minimum periods; they may be increased by contracts between the parties.
duración de servicio ≥ 6 meses:
duración de servicio ≥ 9 meses:
duración de servicio ≥ 2 años:
duración de servicio ≥ 4 años:
duración de servicio ≥ 5 años:
duración de servicio ≥ 10 años:
duración de servicio ≥ 20 años:
Indemnización sustitutiva de preaviso:
Notificación a la administración:
* Art. 62 of the Trade Union Act provides for a mandatory 'post-dismissal notification' to the regional directorate of Labour as well as the Ministry of Labour and Social Security since they must be informed by the employer of the names of employees whose contracts have ended for any reason, until the 15th day of the following month.
Note that this notification obligation also applies to any recruitment.
Notificación a los representantes de los trabajadores:
Aprobación de la administración publica o de organismos judiciales:
Acuerdo de los representantes de los trabajadores:
Notas / Comentarios
The notice requirements apply to both employees covered by the job security provisions (= termination with a valid reason) and those not covered by such provisions (= no justification required).
This job security provision applies to employees who fulfil all the following criteria:
- the employee is engaged for an indefinite period, and
- the employee has worked for at least 6 months, and
- the employee works in an establishment with at least 30 employees.
When terminating a contract for a just cause ("breaking of the contract) for reasons related to health, misconduct, force majeure, arrest and custody, as listed in art. 25 the employer does not have to observe any notice requirements.