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Chile - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Chile - 2018    

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Obligation to provide reasons to the employee: Yes
  • * In case of dismissal based on worker's conduct (art. 160), the written notice of dismissal shall state the legal reasons for dismissal, its justification and the facts on which dismissal is based in addition to the status of social security contributions (sec. 162, LC). (This also applies to termination by conclusion of the particular task covered by the contract; the expiration of an agreed-upon term and force majeur)
    * Art. 162 provides for specific notice requirements for dismissals based on the "requirements of the undertaking" (=economic reasons): i.e the worker must be given notice, copied to the relevant inspectorate, at least 30 days in advance. However, it does not specify whether the reasons for such dismissal shall be specified in the notice.
    * No justification is required for the desahucio of certain categories of domestic workers ("trabajador de casa particular") or persons occupying positions of trust and persons representing the employer (art. 161 LC - see below)

Valid grounds (justified dismissal): worker's conduct; economic reasons
  • 1) The following are valid reasons related to the worker's conduct which entail summary dismissal with no right to severance pay (art.160 LC):
    * Dishonesty, acts of violence, insult or serious immoral behaviour duly proven, and/or sexual harassment;
    * Negotiations conducted by the worker within the normal functions of the enterprise and which might have been expressly forbidden, in writing, within the terms of the contract made with the employer;
    * Unjustified absence from work for two consecutive working days, two Mondays within a period of one month or a total of three days within the same period; similarly, absence which is unjustified or without advance notice by a worker responsible for a process, task or machine when such absence entails disruption in the rest of the service or production process;
    * Abandonment of work by the worker, which is defined as: leaving the workplace without proper notice or valid reason during working hours, and without authorization from the employer or his or her representative; and unjustified refusal to perform the assigned task under the agreed terms of the contract of employment;
    * Acts, forgetfulness or carelessness seriously affecting the safety or operation of the establishment, safety or activity of the workers, or their health;
    * Deliberate material damage to the plant, machinery, tools, work implements, goods or merchandise; or
    * Serious breach of the obligations under the contract of employment.

    2) Pursuant to art. 161 LC, the employer can legally terminate a contract for reasons based on the requirements of the undertaking. These requirements (necessidades de la empresa) can result from streamlining or modernization activities, reduced productivity, changes in market or economic conditions which impose the need to lay off one or more workers.
    In such cases, notice period requirements shall be observed and the dismissed worker will be entitled to severance pay.
    It is worth noting the worker's lack of adjustment to the undertaking's technical or working innovation was previously included in art. 161 as a valid ground for dismissal. It has however been deleted in 2002 by Act No 19.759.

    3) Finally, under art. 161 LC, the employer can dismiss without cause (by way of desahucio) the following persons:
    - certain categories of domestic workers ("trabajador de casa particular");
    - persons occupying positions of trust; and
    - persons representing the employer, such as managers, assistant managers, agents or other types of representatives, provided that they have general administrative competence.
    In such cases, those workers have the right to receive a 30 days prior written notice of the desahucio and receive a severance indemnity. In addition, notification to the labour inspectorate is required.

    See also: Article 163bis LC introduced by Law 20.720 of 2014 concerning new regulation on bankruptcy

Prohibited grounds: marital status; pregnancy; maternity leave; race; colour; sex; sexual orientation; religion; political opinion; social origin; nationality/national origin; age; trade union membership and activities; disabilities; financial status; language
  • - Art. 161 LC prohibits the dismissal grounded on economic reasons and the "desahucio" in the following cases:
    * Workers on sick leave
    * Workers on temporary work injury or illness leave

    - Article 194 LC establishes that the employer cannot terminate the employment of the worker because of pregnancy.

    - Article 2 also establishes that the financial status or debts by the employee cannot be taken into account by the employer as a condition to hire a worker.

    -The dismissal based on trade union membership or activities will be consider null and void (article 294 ).

    - Art. 161bis LC provides that total or partial invalidity cannot be a just cause for termination of employment.

    - Some union members, pregnant women and women returning from maternity leave enjoy protection against termination of employment under the "fuero laboral" in some circumstances (see special protection). This means that their dismissal must be authorized by a judge and can only take place on the grounds on conduct (see art. 174, 201, 243, LC)

    - Race, color, sex, age, marital status, trade union membership, religion, politic beliefs, nationality and social origins, language, sexual orientation, gender identity, physical appearance, illness, disability are prohibited grounds of discrimination in employment (art. 2 LC: general provision on non-discrimination in employment).

Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; workers with family responsibilities; workers on temporary leave following an occupational disease or a work injury
  • - Under the LC, some workers benefit from the 'fuero laboral', which is a form of special protection against termination of employment. According to art. 174 LC, dismissal of those protected workers is subject to judicial authorization which can only be granted on the grounds of the worker's conduct or upon expiry of the agreed term of the contract or completion of the service for which the contract was made (art. 159, 160 LC).
    Workers protected by the 'fuero laboral' are:
    *Workers whose child/spouse/civil partner has died. They will enjoy the protection for one month after the death (article 66);
    * Workers who want to constitute a trade union in the company. They will be protected from 10 days prior to the constituent assembly until 30 days after (article 221);
    *Candidates for a union director position. They will be protected since the election date is set until the election is completed (article 238);,
    * Union directors and directors of federations, confederations, and workers' centrals during their terms of office and for six months thereafter (articles 224, 235, 243 and 274);
    * Employees involved in collective bargaining during the period starting 10 days before bargaining begins and ending 30 days after bargaining is completed (article 309);
    * Staff delegates during their terms of office and for six months thereafter (articles 229 and 243).
    * Pregnant women and working mothers up to one year after the end of the maternity leave (article 201);
    * Working father if he has taken parental leave (articles 197bis and 201);
    * Women and men who are single or widowed and they have expressed their wish to adopt a child according to the Adoption Act shall be entitled to one year's "protection from the day of the judicial decision granting the child' custody (article 201).
    - Art. 161 LC prohibits the dismissal grounded on economic reasons and the "desahucio" in the following cases:
    * Workers on sick leave
    * Workers on temporary work injury or illness leave