CDD regulados: Si

Remarks

The new OLL of 2012 brought some changes to the rules on FTCs.

Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

A contract is deemed to be of indeterminate duration if the parties do not explicitly state the desire to be bound by an employment relationship solely for a specified task or for a specified period. A contract is presumed to be for an undetermined period of time, therefore, FTC are considered exceptional and its regulatory provisions must be restrictively interpreted (art. 61 et seq., OLL).

Art. 64 OLL provides that FTCs can only be concluded a) if so required by the nature of the service; b) for a temporary and lawful replacement of a worker; c) contracts concluded with Venezuelan nationals for the performance of services abroad d) when the task for which the employee was contracted has not been completed.
If an FTC is done under other circumstances, it will be considered null.

New in 2012: Employment relationship are presumed to be of indeterminate duration except in cases provided by the law. FTCs and contracts for the performance of a specific task are exceptional and therefore the rules governing those contracts must be interpreted restrictively.

New in 2012: Any contract concluded for any other reasons will be null and void. As a result, the worker will be granted employment stability provided by the law.

Número máximo de CDD consecutivos: 2

Remarks

Art. 62 OLL:
- If the contract is extended twice or more, the contract is considered to be of indeterminate duration (= max. number: 2) [unchanged in 2012].
- The contract is also deemed of indeterminate duration if,within 3 months of its expiry, a new contract is concluded between the same parties, unless the parties clearly demonstrate their mutual wish to end the relationship. [New in 2012: previously 1 month]

Art. 64 OLL: With respect to contracts concluded for a specific task, if, within 3 months of the termination, the parties conclude a new contract for the performance of another task, it will be understood that they were bound from the outset of the relationship for an indeterminate period. [New in 2012: previously 1 month]

Duración máxima acumulativa de CDD consecutivos: 12meses

Remarks

New in 2012: The maximum term for an employment relationship for a fixed term (whether through one single FTCs or 2 FTCs) is one year.
[Under the previous law, it was 1 year for blue-collar workers and 3 years for white-collar workers]


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

Remarks

The OLL does not establish a probationary period for workers, however, it establishes a period of 30 days in which the worker is not protected by the right to a stable job place and, therefore, can be dismissed without just cause (Art. 87 OLL). Academy considers this to be a non-explicit probationary period.

Note that article 80 OLL foresees a trial period of 90 days for workers that are being promoted. In case of failure, the worker will be reinstalled in its previous

Obligación de motivar el despido No Motivos autorizados (despido justificado): conducta del trabajador

Remarks
Motivos prohibidos: estado civil, embarazo, raza, sexo, orientación sexual, religión, opinion política, origen social, edad, afiliación sindical y actividades sindicales

Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores, mujeres embarazadas o con licencia de maternidad, trabajadores con responsabilidades familiares, trabajadores que desempeñan servicio militar/servicio alternativo

Forma de la notificación del despido al trabajador: escrita

Remarks

The notification of the dismissal is always mandatory and shall be done in writing (art. 105 OLL).

Plazo de preaviso:

Remarks

No notice period in necessary in cases of dismissal for just cause

Notice periods must be observed with respect to workers who do not enjoy employment stability under the OLL ( all workers covered by the OLL under a permanent contract with more than 3 months' service who are not managers) and dismissed without a just cause AND all workers dismissed for economic reasons:
For those employees, the notice period is established as follows:
* after one month's service, one week;
* after six months' service, two weeks;
* after one year's service, one month;
* after five years' service, two months; and
* after ten years' service, three months.

(art. 104 OLL and art. 36 OLLR)

HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector..

duración de servicio ≥ 6 meses:

  • Todos: 0.5 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0.5 meses.

duración de servicio ≥ 2 años:

  • Todos: 1 meses.

duración de servicio ≥ 4 años:

  • Todos: 1 meses.

duración de servicio ≥ 5 años:

  • Todos: 2 meses.

duración de servicio ≥ 10 años:

  • Todos: 3 meses.

duración de servicio ≥ 20 años:

  • Todos: 3 meses.

Indemnización sustitutiva de preaviso: Si

Remarks

1) Workers who do not enjoy employment stability under the OLL and dismissed without a just cause or for economic reasons:
If the notice period requirement is not complied with by the employer, the employee should be paid a sum equivalent to the remuneration he or she would have received during the corresponding period (sec. 106, OLL).

2) Workers who enjoy employment stability (all workers covered by the OLL under a permanent contract with more than 3 months' service who are not managers):
Even though the notice period requirements do not apply to the dismissal those workers, if they are dismissed by way of unjustified dismissal (= for a reason other than a just cause), as part of the dismissal compensation package, in addition to compensation for unfair dismissal, they are entitled to compensation in lieu of notice. The employer can pay has the option either to pay it at the time of the dismissal or after the judge has declared the dismissal unjustified.
The amount of such compensation correspond to a "fictional notice period" which is higher that the notice period foreseen for workers not covered by job stability. It is established as follows (art. 125 OLL:
- 15 day's wages if the length of service is more than 1 month and less than 6 months;
- 30 days' wages if the length of service is between 6 and less than 1 year;
- 45 days' wages if the length of service is at least 1 years;
- 60 days' wages if the length of service is at least 2 years but not more than 10 years;
- 90 days' wages if the length of service is more than 10 years.
HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement. Thus, the option provided under the OLL to pay termination compensation in lieu of reinstatement (including the above-mentioned compensation in lieu of notice) is not available to the employer

Notificación a la administración: No

Remarks

Under the OLL, there is no general obligation to notify the labour administration prior to any dismissal.
However, any dismissal of a worker protected by job stability must be notified to the competent labour judge (Juez de Estabilidad Laboral) within five business days of the date of the dismissal, with an indication of the reasons. . (= post-dismissal notification to a judicial body)
In the absence of such notification, the dismissal will be deemed unjustified (art. 116 OLL).
The employer is not bound to observe such requirement when dismissing temporary, casual workers, managers and permanent employees with less than 3 months' service.

Notification to and authorization from the Labour Inspector is required for workers enjoying special protection (see art. 449 OLL on the general special protection against dismissal for trade union related activities (fuero sindacal), on the categories of workers entitled to such protection see: art. 451, 356, 418, 452, 617 OLL, 356 OLL, 418 OLL, 452 OLL, 617 OLL; on special protection for pregnant women and women on maternity leave, see: art. 384, on special protection during the authorized period of suspension of the employment relationship, see art. 94 and 96 OLL).

HOWEVER, the above mentioned protection has been extended to a large number of workers by the so-called "Immunity Decrees" (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Remarks

Approval by the Labour Inspector is only mandatory in the event of a dismissal of a worker enjoying special protection. (see art. 449 OLL on the general special protection against dismissal for trade union related activities(fuero sindacal), on the categories of workers entitled to such protection see: art. 451, 356, 418, 452, 617 OLL, 356 OLL, 418 OLL, 452 OLL, 617 OLL; on special protection for pregnant women and women on maternity leave, see: art. 384, on special protection during the authorized period of suspension of the employment relationship, see art. 94 and 96 OLL)

Acuerdo de los representantes de los trabajadores: No

Notas / Comentarios

Notas

This section reflects the provisions of the Organic Labour Law.
Under the OLL, the procedural requirements for individual dismissals depends on whether the dismissal is for a just cause or if it is unjustified and whether the workers enjoy job stability.

HOWEVER, in spite of those legal requirements provided in the OLL, the rules on dismissal have been substantially modified by so-called "Immunity Decrees" enacted at regular interval since 2002, the latest (as of 2011) dating 16 December 2010 (No. 7914) covering the period from 1 January 2011 to 31 December 2011.
Under those Decrees, prior accreditation of just cause by the labour inspectorate is required for any dismissal of any worker falling within the scope of of application of the decrees (= all workers in the private sector and all those covered within the scope of application of the Labour Code) Violation of this rule may be remedied through reinstatement, where requested.
Therefore, those workers covered by such employment stability, cannot be dismissed by way of unjustified dismissal but only for a just cause and the requirements described in this section are not applicable.
They would apply to workers not covered by the Decree, namely: Managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage.

Definición de despido colectivo (número de empleados afectados): 1) Mass dismissal is defined as any dismissal concerning
- at least 10% of the workers or more in undertakings with more than 100 workers;
-20% of the workers in undertakings of more than 50 workers;
- at least 10 workers in undertakings with fewer than 50 workers;
within 3 months or more if the circumstances make the dismissal critical.

2) A workforce reduction is the dismissal of one or more workers on the grounds of economic reasons or technological changes or advances.

Remarks

It is important to note that the OLL establishes a distinction between:
- "mass dismissals" (above-mentioned thresholds) which, as such are not prohibited by the OLL but can be discontinued by decision of the Ministry of Labour, in which case dismissed workers have the right to be reinstated.
- workforce reduction (redundancy) concerning one or more workers.

Each type of dismissal triggers a different procedure.


(See: Art. 34 OLL, and art. 40-45 OLLR (mass dismissal) and 46-46 OLLR (workforce reduction).


PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

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

Remarks

1) Workforce reduction:
Any employer who intends reduce the workforce on the grounds of economic or technological changes must first submit a request to that effect to the Labour Inspector.
Once the application is made (see below), the employer must follow the rules applicable to the resolution of collective disputes set out in the OLL.
Within 48 hours after the submission of the request, the employer and the trade union to which the employees belong must establish an ad-hoc Conciliation Board (Junta de Conciliation) with the view to reaching an agreement unanimously on the number of workers affected by the reduction of workforce, the timeframe and redundancy payment. The conciliation board is composed of two representatives and one substitute for the employer and the employees and chaired by the Labour Inspector.
(see art. 34 OLL, 479 et seq. OLL and 46-47 OLLR)

2) No involvement of workers' representative in the procedure for mass dismissals foreseen in the OLL. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.


PLEASE NOTE that, the above mentioned rules do not apply to workers covered by the "Immunity Decree " (Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

Notificación a la administración: Si

Remarks

1) Workforce reduction:
Any employer who intends reduce the workforce on the grounds of economic or technological changes must first submit a request to that effect to the Labour Inspector containing the following information:
- Identity of the employer.
- Number of employees in the company and number of employees to be affected by the staff reduction with an indication of their positions, length of service with the employer and last salary earned.
- A description of the production systems and processes used in the company and those that are intended to replace them, indicating their advantages and effect on production, if applicable.
- An analysis of the employer's economic situation if the request is based on that ground.
The Labour Inspector can request any documents and information it deems appropriate, carry out inspection or supervision and order expert evaluation.
(art. 46 OLLR)
The Labour Inspector is also involved in the second phase of the procedure, namely the conciliation phase, since he/she is the chair of the ad hoc conciliation board in charge of reaching an agreement on the proposed redundancies.

2) Mass dismissals:
If the Labour Inspector becomes aware of a mass dismissal either ex oficio or upon application by an interested party, he/she will order the employer to appear for questioning, in order to determine:
- the number of workers hired over the last six months.
- the number of dismissals during the same period, and the identity of the dismissed workers.
If it is clear from the questioning that a mass lay-off has taken place, the Labour Inspector must notify the Ministry of Labour who will decide on the suspension of the dismissal (which will entail the reintegration of the dismissed workers and the payment of back pay).
If, it appears from the hearing, that the mass dismissal is controversial, the Labour Inspector must order a ten-day evidentiary period.
The Inspector has broad investigatory powers and can therefore conduct any inspections or supervisions he/she deems necessary.
Within eight days form the conclusion of the evidentiary stage, the Inspector must prepare and submit his/her report to Ministry of Labour and Social Security, indicating the number of workers on the payroll and the number of workers dismissed and the time frame during which the dismissals took place.

PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

Notificación a los representantes de los trabajadores: Si

Remarks

1) Workforce reduction:.
Within 48 hours after the submission of the redundancy request, the employer and the trade union to which the employees belong must establish an ad-hoc Conciliation Board (Junta de Conciliation) with the view to reaching an agreement unanimously on the number of workers affected by the reduction of workforce, the timeframe and redundancy payment. The conciliation board is composed of two representatives and one substitute for the employer and the employees and chaired by the Labour Inspector.
(see art. 34 OLL, 479 et seq. OLL and 46-47 OLLR)

2) No involvement of workers' representative in the procedure for mass dismissals foreseen in the OLL. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.

PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

Aprobación de la administración publica o de organismos judiciales: No

Remarks

1) Workforce reduction:
The administration is not required to approve the dismissal. However, the Labour Inspector plays an important in the conciliation process, as he chairs the conciliation board and participates in its deliberations with a view to harmonizing the position of the parties. If conciliation fails, he or she can decide to refer the dispute to arbitration (see arts. 479, 480 and 486 OLL).

2) Mass dismissals:
Once the investigatory phase before the Labour Inspector has elapsed and it was proven that a mass dismissal has taken place, the Minister of Labour may, on the grounds of social interest, order the suspension of the effects of the dismissals, that is reinstatement of the workers and payment of back pay, within 20 days following the receipt of the report of the Labour Inspector. However, if after reinstatement and back pay orders have been issued, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction will be applicable
(art. 34 OLL and 44-45 OLLR).

PLEASE NOTE THAT the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

Acuerdo de los representantes de los trabajadores: No

Remarks

1) Workforce reduction:
The ad-hoc Conciliation Board (Junta de Conciliation) composed of representatives of the employer and of the trade unions and chaired by the Labour Inspector shall shall be established with the view to reaching an agreement unanimously on the number of workers affected by the reduction of workforce, the timeframe and redundancy payment.
The Conciliation Board meets as many times as are necessary until it agrees on a unanimously approved recommendation or it decides that conciliation is impossible. If the Conciliation Board reaches an agreement, the dismissal will be effective. If it does not reach any agreement, the dispute will be referred to an Arbitration Board (art. 34 OLL, 49 OLLR and 490 OLL).

2) No involvement of workers' representative in the procedure for mass dismissals foreseen in the OLL. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.

PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

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

Remarks

No statutory provision in the OLL concerning criteria to be taken into consideration in the event of redundancy.
However, it is important to keep in mind here the immunity from dismissal granted to some categories of workers (under the OLL (see above special protection) and under the Immunity Decree)

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

Remarks

1) Workforce reduction::
No express obligation to consider alternatives to to dismissals in the OLL and OLLR. However, pursuant to art. 48 OLLR, the ad hoc Conciliation Board which includes the employer, can agree on the following measures: modification of the work conditions set out in the collective agreement, temporary suspension of work for max. 60 day, the start of a recapitalising and reactivation process for the enterprise, with the associative participation of the workers, in the form of co-management or self-management.

2) Mass dismissal:
No reference to alternative measures to dismissals in the provisions governing mass dismissals. However, if after the Ministry of Labour has ordered the suspension of the effects of the mass dismissal and reinstatement of the workers, the employer still wants to carry out dismissals on economic grounds, he/she can submit an application for workforce reduction to the Labour Inspector. In that case, the procedure for workforce reduction described above will be applicable.


PLEASE NOTE that the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

Reglas de prioridad para la re-contratación: No

Remarks

No statutory provision.

Notas

1) OLL:
The law provides distinct procedures to follow in the event of mass dismissals and redundancies (regardless of the number of workers involved).
*Mass dismissals are not prohibited by the OLL and the OLL does not establish any specific requirements to be observed prior to the dismissal. However, once they have taken place, their effects can be discontinued by decision of the Ministry of Labour, in which case dismissed workers will have the right to be reinstated. .
*Workforce reduction requires prior consultation and notification.

The information contained in this section reflect the rules applicable to workforce reduction under the OLL.
The procedure pertaining to mass dismissals is explained in the remarks box under each of the relevant items
.

2) Immunity decrees:

HOWEVER, the above mentioned rules do not apply to workers covered by the "Immunity Decree "(Decree No. 7914 for the year 2011). These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector.
Nonetheless, the Decree reserves the right of employers and workers to conclude an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).

Indemnización por despido:

Remarks

Upon termination of employement, under the OLL, the workers are entitled to a number of benefits, some of which are payable (except for pro-rated vacation days) regardless of the cause for for termination as they are considered "vested rights", namely:
- vacation-related benefits (art. 223-225 OLL): i)
unused vacation days and corresponding vacation bonuses, ii) prorated vacation and corresponding prorated vacation bonus (except in case of just cause dismissal)
- earned or prorated profit sharing (art. 174 LOT)
- seniority award (art. 108 OLL- applicable rules described below)
In addition, depending on on whether the employee enjoys job stability and on the reason for the dismissal, dismissed workers may be entitled to compensation for unjustified dismissal (which can be paid in advance) and a payment in lieu of advance notice. For the purpose of this database, only those two indemnities have been included under severance pay.

1) Employees enjoying job stability (permanent worker's with more than 3 months' service not holding managerial positions):

A) Dismissal for a just cause:
No entitlement to compensation for notice nor to compensation for unjustified dismissal.

B) Unjustified dismissal:
A worker is entitled to both compensation for unjustified dismissal and compensation in lieu of advanced notice.

i) compensation for unfair dismissal: The employer can, upon termination of employment, acknowledges that the dismissal is unjustified and pays such compensation. In such cases, there will be no remedy for unjustified dismissal available to the worker before a Court. Such compensation is calculated as follows (art. 125-126 OLL):
* 10 days' wages if the employee's length of service is between 3 and 6 months;
* 30 days' wages if the length of service is 6 months or more,
*and then 30 days' wages for each year of service, up to a maximum of 150 days' wages.
Justified dismissal or termination for economic reasons do not give rise to such indemnities.

ii) compensation in lieu of advanced notice:
Even though the notice period requirements do not apply, workers dismissed by way of unjustified dismissal are entitled to as part of the dismissal compensation package, they are entitled to compensation in lieu of notice in addition to compensation for unjustified dismissal. The employer can pay has the option either to pay it at the time of the dismissal or after the judge has declared the dismissal unjustified.
The amount of such compensation correspond to a "fictional notice period" which is higher that the notice period foreseen for workers not covered by job stability. It is established as follows (art. 125 OLL)
- 15 day's wages if the length of service is more than 1 month and less than 6 months;
- 30 days' wages if the length of service is between 6 and less than 1 year;
- 45 days' wages if the length of service is at least 1 years;
- 60 days' wages if the length of service is at least 2 years but not more than 10 years;
- 90 days' wages if the length of service is more than 10 years.

2) Workers who do not enjoy job stability:
No entitlement to compensation for unjustified dismissal nor to the above mentioned special compensation in lieu of advance notice provided in art. 125 OLL.

Upon termination and regardless of the cause of termination, every worker is entitled to a seniority award (prestaciòn de antigüedad): art. 108 OLL.

HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011).
These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement and payment of back wages.


[NB: The amounts indicated below correspond to the payment to be made upon an unjustified dismissal of a worker enjoying job stability. They do not include seniority payments]

duración de servicio ≥ 6 meses: 2 meses

duración de servicio ≥ 9 meses: 2 meses

duración de servicio ≥ 1 año: 2.5 meses

duración de servicio ≥ 4 años: 6 meses

duración de servicio ≥ 5 años: 7 meses

duración de servicio ≥ 10 años: 8 meses

duración de servicio ≥ 20 años: 8 meses

Indemnización por despido por razones económicas:

Notas

1) dismissal with cause (reference to valid grounds): no severance pay
2) dismissal for economic reasons: redundancy payment
3) dismissal without cause: compensation for unfair dismissal and compensation in lieu of advance notice . Both can be payed in advance by the employer at the time of the dismissal. In that case, no legal action for challenging the dismissal will be available to the employee (Art. 126 OLL)

HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree (Decree No. 7914 for the year 2011).These are: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement and payment of back wages.

Note on seniority payment (art. 108 OLL):
- Employees are entitled (not changed by the immunity Decree) to a seniority payment equivalent to five (5) days of salary for each full month of service starting from the fourth month of service include ( i.e., 45 days of salary for the first full year of service, and 60 days of salary for each additional year). These payments are deposited into a fund or accrued into the company accounts, and are not paid until the employment ends, although part can be requested in advance to attend to certain housing, educational, and medical needs.
In addition, from the second year of service, employees are entitled to 2 additional days of salary per year, or fraction of a year greater than 6 months, up to a maximum of 30 additional days.
- Upon termination of employment regardless of its cause, the employee has the right to be paid the seniority payment that has been credited on the books of the employer or has been deposited in his/her name in that specific year employment ends, in the following manner:
* if employee's seniority is more than 3 months and up to 6 months, the employer must pay 15 days of salary or the difference not yet credited or deposited,
* if employee's seniority is more than 6 months and up to 1 year, the employer must pay 45 days of salary or the difference not yet credited or deposited,
* if employee's seniority is more than one year, the employer must pay 60 days of salary or the difference not yet credited or deposited provided that the employee worked for at least 6 months during that year.

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

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): If the employer insists on dismissing the worker after the judge has declared the dismissal unjustified, the employer must pay, in addition to the salaries which the worker would have earned during the legal proceedings, compensation amounting to ten days' wages if the employee's length of service is between three and six months; 30 days' wages if the length of service is six months or more, and then 30 days' wages for each year of service, up to a maximum of 150 days' wages.

Remarks

Art. 125 OLL.

HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree namely: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, a worker can only be dismissed for a just cause previously approved by the Labour Inspector. Failure to do so will entail mandatory reinstatement and payment of back wages.

Posibilidad de readmisión: Si

Remarks

Reinstatement can be requested before the Labour judge by the worker (art. 116 OLL). However, employers with less than 10 employees are not obliged to reinstate the worker provided that they pay compensation (art. 117 OLL).

HOWEVER, the above mentioned rules do not apply to workers covered by the immunity decree namely: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, prior to any dismissal, the employer must request authorization from the Labour Inspector who will only grant it if there is a just cause.If the employer fails to do so, the Labour Inspect will order reinstatement and payment of back wages.

Conciliación previa obligatoria: Si

Remarks

Art. 117 OLL and art 133 of OLPL: preliminary mandatory conciliation before the Judge.

Corte o Tribunal competente: tribunal del trabajo

Remarks

See art. 116-117 OLL. See also OLPL, Title II, and Title VIII, art. 191 to 215.

Arbitraje: Si

Remarks

The OLPL provides for the possibility to refer the dispute to arbitration in the course of the legal proceedings before the judge.
Art. 133 OLPL and 135-149 OLPL.

NOT APPLICABLE to workers covered by the Immunity Decree.

Notas

HOWEVER, the rules described in this section are those provided in the OLL. They do not apply to workers covered by the immunity decree namely: all workers covered by the Labour Code except managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage. Under the immunlity decree, prior to any dismissal, the employer must request authorization from the Labour Inspector who will only grant it if there is a just cause.If the employer fails to do so, the Labour Inspect will order reinstatement and payment of back wages.