Referencias
Categorías de trabajadores excluidas:
CDD regulados: Si
•No limitations on the use of FTCs (reasons, duration, number of renewal). However, art. 62(3) LC regulates termination of FTCs upon expiry of the term and provides that "A contract for one period of fixed duration shall set forth its date of termination. Such a contract shall, subject to the provisions of section 66 concerning dismissal, automatically terminate on that date and no notice of termination shall be required of either party."
•In addition, art. 62(4) LC provides that "A contract to perform some specific work or to undertake a specified journey shall terminate upon the completion of the work or journey. No notice of termination shall be required of either party, but an employer who terminates such a contract before its completion shall pay the employee all wages and other remuneration that would have been owing to the employee if he or she had continued to work until the completion of the contract."
•In addition, the LC provides that the non-renewal of a fixed-term contract, or contract for a specific task or journey, will result in dismissal only if the contract provides for the possibility of renewal (sec. 68(6) LC).
•Art 3(2) of the Codes of Good practice (not binding) provides, however, that a fixed term contract will be deemed to be renewed by default if an employee continues to work after the period of the fixed term expires and the employer accepts the employee to work. The duration of a contract renewed by default will depend on the circumstances. It may be a contract for another fixed term or one terminable on notice. It will depend on the surrounding circumstances.
Furthermore subsection (3) provides that the failure to renew a fixed-term contract in circumstances where the employee reasonably expected continuity of employment, may constitute a dismissal.
Razones de utilización legítima de CDD: sin restricción
No statutory restrictions on the use of FTC (art. 62 LC).
Número máximo de CDD consecutivos: sin restricción
Duración máxima acumulativa de CDD consecutivos: sin limitación
Duración maxima del periodo de prueba (en meses): 4 mes(es)
•Art. 75 LC
General rule: probationary period cannot exceed 4 months during which the employee may be dismissed with one week's notice. However, it may be extended beyond 4 months only with the leave in writing of the Labour Commissioner.
•Art. 8(3) of the Codes of Good Practice (not binding) provides that the probationary period should be of a reasonable length, usually three and sometimes up to four months, having regard to factors such as the nature of the job, the standards required, etc. The period may be extended by agreement.
The Labour Commissioner may grant extension of the probationary period if:
(a) If the Commissioner is satisfied that the nature of the job requires a longer period of assessment to determine the suitability of the employee on probation;
(b) If it is the custom and practice in the industry that a longer period of probation is required for the job;
(c) If the Commissioner is satisfied that the employer requires a longer period of probation in order to assess the employee (Art. 8(7)).
Obligación de motivar el despido: Si
Motivos autorizados (despido justificado):
Motivos prohibidos: estado civil, embarazo, licencia de maternidad, responsabilidades familiares, presentación de una queja contra el empleador, raza, color, sexo, religión, opinion política, origen social, nacionalidad, afiliación sindical y actividades sindicales, disfrute legal de licencias, estatus VIH
•Art. 66 (3) LC lists the invalid reasons for terminating employment as the following:
(a) trade union membership or participation in trade union activities outside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, or acting or having acted in the capacity of, a workers' representative;
(c) the filing in good faith of a complaint or grievance, or the participation in a proceeding against an employer involving the alleged violation of the Code, other laws or regulations, or the terms of a collective agreement or award;
(d) race, colour, sex, marital status, pregnancy, family responsibilities, religion, political opinion, national extraction or social origin;
(e) absence from work in accordance with the provisions of the Code or as authorised by the employer.
In addition, see art. 5 LC : general article on non-discrimination.
On HIV status, see: art. 235 G Labour Amendment Act 2006.
See also art. 67 LC: "If the Labour Court is satisfied that an employer dismissed an employee in order to avoid liability for providing the employee with any benefit provided for under the Code, such dismissal shall be deemed unfair".
Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores, mujeres embarazadas o con licencia de maternidad
- Women on maternity leave: Art. 136 LC provides that any dismissal of any employee that takes effect during her statutory maternity leave shall automatically be an unfair dismissal; and where a female employee is absent from work due to confinement or illness related to pregnancy, or remains absent from work for a longer period as a result of an illness which a medical officer or a registered nurse or midwife has certified in writing to arise in his or her opinion out of the employee's pregnancy or confinement and to render her unfit to return to work, no employer shall, during the period of her absence from work, give notice to dismiss her or terminate her contract of employment.
- Worker's representatives, see Codes of good practices Art. 11 (8) : specific discipline procedure (mandatory consultation with the trade union).