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Mexico - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Mexico - 2010    

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Obligation to provide reasons to the employee: Yes
  • Art. 47 FLA.

Valid grounds (justified dismissal): worker's conduct; economic reasons; worker's capacity
  • The FLA establishes a distinction between dismissal (despido) (art. 47) and termination (terminación) (art. 53).
    Under the FLA dismissal (despido) can only be justified by reasons related to the worker's conduct (listed below). Economic reasons and, worker's incapacity are considered to be grounds for termination (terminación) in addition to other grounds such as force majeure, death of the worker, termination of the work.. (art. 53)

    *worker's conduct: art. 47 FLA provides for a detailed list of acts that allows the employer to dismiss the workers:
    - if the worker or the trade union which proposed or recommended him or her deceives the employer by means of false certificates or references attributing to the worker abilities, skills or qualities which he or she does not possess. These grounds for termination cease to be operative after the worker has completed 30 days' employment;
    - if the worker in the course of his or her employment commits a dishonest or dishonourable act, violence, threats or ill-treatment towards the employer or any member of the employer's family or the top management or managerial personnel of the undertaking or establishment, except in the case of provocation or self-defence;
    - if the worker is guilty of any of the acts mentioned in the preceding clauses towards any fellow workers and workplace discipline is affected as a consequence of such acts;
    - if the worker is guilty outside his or her employment of any of the acts mentioned in the second ground above and these acts are of such a serious nature as to render the fulfilment of the contract of employment impossible;
    - if the worker in the performance of his or her work or in connection therewith willfully causes material damage to the buildings, works, machinery, tools, raw materials or other objects connected with the work;
    - if the worker causes damage as in the preceding clause of a serious character acting without malicious intent but with negligence which is the sole cause of the damage;
    - if the worker by his or her inexcusable imprudence or carelessness endangers the safety of the establishment or the persons therein;
    - if the worker is guilty of immoral conduct in the establishment or workplace;
    - if the worker reveals manufacturing secrets or communicates matters of a private character to the detriment of the undertaking;
    - if the worker is absent from work more than three times in a period of 30 days without the employer's permission or without sufficient reason;
    - if the worker refuses to obey the employer or his or her representative without sufficient reason in matters connected with the work under the contract;
    - if the worker refuses to adopt preventive measures or follow the procedure laid down for the prevention of accidents or disease;
    - if the worker attends work in a state of intoxication or under the influence of a narcotic or harmful drug unless, in the latter case, he or she has a medical prescription. Before commencing service, the worker should inform the employer of the facts and submit a certificate signed by a medical practitioner;
    - if the worker receives an executory judgement sentencing him or her to a term of imprisonment preventing him or her from fulfilling the obligations under the employment relationship; and
    - on grounds similar to those laid down in the preceding clauses if they are of equal gravity and entail similar consequences as far as the work is concerned.

    *Worker's capacity: according to art. 53 IV), the worker's physical or mental incapacity or obvious disability making it impossible for him or her to perform the work constitutes a valid ground for termination.

    Note that poor performance of the worker is not a statutory ground for dismissal.

    *Economic reasons: according to art. 434 FLA, constitute reasons for termination:
    - the self-evident non- profitability of the operations,
    - the legally declared insolvency or bankruptcy.
    No other economic reasons are listed.

Prohibited grounds: marital status; race; sex; sexual orientation; religion; political opinion; social origin; age; trade union membership and activities; disabilities; financial status; language; participation in a lawful strike; state of health; ethnic origin
  • * A dismissal on the ground of trade union membership or participation in a lawful strike amounts to a dismissal without cause (art. 123 A XXII of the Constitution).

    * Art. 3 of the FLA prohibits discrimination between workers on the grounds of race, sex, age, religion belief, political opinion or social condition.

    (Note also that Art. 1 of the Constitution establishes a general prohibition of any discrimination on the grounds of ethnic or national origin, gender, age, disabilities, social condition, health condition, religion, opinions, orientations, marital status).

    In addition the Federal Law to prevent and eliminate discrimination of 2003, last amended in 2007 defines discrimination as any distinction on the grounds of ethnic or national origin, sex, age, disability, social or financial condition, health condition, pregnancy, language, religion, opinions, sexual orientation, marital status or any other reason. In addition anti-Semitism and xenophobia are considered to be discrimination (art. 4).

    Art. 9 (III, IV and V) considers to be discriminatory conduct, inter alia, the restriction of opportunities for access to, remaining in and progression in employment. However, this law does not establish any civil or criminal liabilities, but rather promotional administrative measures which can only be imposed on individuals provided that they have accepted the corresponding conciliation agreement.
    (See: ILO Committee of Experts on the Application of Conventions and Recommendations, Comments on the ILO Discrimination (Employment and Occupation Convention, 1958, No. 111, Observation on Mexico, CEACR 2005/76th Session).

    Fulfilling state duties and performing jury services – art 132 FLA (VIII): Employers must allow workers the necessary time to exercise their right to vote and to fulfil jury, electoral and registration services as observed in article 5 of the Constitution when the tasks must be fulfilled in working hours.

Workers enjoying special protection: workers with a long period of service
  • *Art. 161 FLA: Workers with more than 20 years of service can only be dismissed on of the grounds listed art. 47 (reasons related to the worker's conduct) provided that such reason is particularly serious or makes it impossible to continue the employment relationship.