Labour Code [LC], 30 december 1971 as last amended by Act No. 44 of August 1995 (Código del Trabajo) - available in Spanish Date: 12 Aug 1995; view website » (view in NATLEX»)
Obligation to provide reasons to the employee: Yes
Art. 214 LC: The notice of dismissal shall be in writing and shall specify the date and the specific reasons for the dismissal or termination of the employment relationship. Any additional reasons subsequently alleged and differing from those set out in the said notice are invalid.
The LC recognizes numerous disciplinary, non-disciplinary (including capacity-based) and economic reasons that are considered valid grounds for the termination of employment at the initiative of the employer that are listed in art. 213 LC.
Prohibited grounds: pregnancy; filing a complaint against the employer; race; sex; religion; political opinion; social origin; trade union membership and activities; disabilities; participation in a lawful strike; birth
No general prohibition of discrimination in the LC. However, the Act No 11 of 22 April 2005 prohibits discrimination in employment based on race, birth, disability, sex, social condition, political ideas. See also art. 19 of the Constitution. In the LC, dismissals based on trade union activities, participation to a strike, filing a complaint against the employer are considered "unfair practices against trade unionism and the worker's rights" (práctica desleales en contra del sindicalismo y de los derechos del trabajador) in art. 388 2), 3), 7).
Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave
- On trade union protection (fuero sindical), see art. 381 -387 LC. The special protection applies to the following workers: the members of trade unions, where the unions are being established; the members of the executive committees of workers', trade unions' federations, confederations or central congresses, up to a maximum of 11 members, substitute members of the executive committee. Art. 384 of the LC establishes a series of rules applicable to the duration of trade union immunity: * for the members of trade unions in the course of formation: for three months following the date on which such association's registration is authorized; * for titular and substitute members of executive committees (the latter if they enjoy trade union immunity) and trade union representatives: for one year running from the date on which they cease to hold office; The protection of trade union immunity commences on the date on which the worker's name appears on the list of candidates for election, on condition that such list is communicated to the employer or to the Inspectorate of Labour, and provided that such protection does not cover a period of more than one month before the actual date of the elections. Elected candidates continue to enjoy trade union immunity even before they take office, and unsuccessful candidates are to continue to enjoy such protection for the entire month following the date of the election returns. If the communication referred to above is not made, immunity should be afforded to members of the executive committee and trade union representatives as from the date of their election.
- Maternity protection: see art. 106 LC. An expectant mother may be dismissed only for valid reasons and with prior authorization of the judicial authorities. An expectant mother who receives notice of dismissal or of unilateral termination of her employment which has not been authorized by the competent labour court must submit to the employer or to any labour authority a medical certificate of her pregnancy within the 20 days of receipt of such notice of dismissal. On completion of this formality the employee is entitled to immediate reinstatement in her employment plus payment in full of her remuneration as from the date of the dismissal. If she allows the said 20-day period to expire without taking any action, she may submit the certificate and claim reinstatement at any time during the following three months, but in this case she is entitled only to back payment of her remuneration as from the date on which she submits the certificate. If the employer refuses to reinstate her, she may sue in the ordinary way for a reinstatement order.