Organic Labour Law [OLL], 20 December 1990 , consolidated version, as amended by the 1997 reform (Ley Organica del Trabajo - available in Spanish) Date: 18 Jun 1997 (view in NATLEX»)
Organic Labour Law Regulation [OLLR], 28 april 2006. (Reglamento de la Ley Organica del Trabajo - available in Spanish) Date: 28 Apr 2006; view website »
Organic Labour Procedure Law [OLPL], 13 August 2002 (Ley Orgánica Procesal del Trabajo - available in Spanish), Date: 13 Aug 2002 (view in NATLEX»)
Presidential Decree No 7914 of 16 December 2010 [Decree providing certain workers with immunity from dismissal for the year 2011] Date: 16 Dec 2010; view website »
Obligation to provide reasons to the employee: Yes
Art. 105 OLL establishes the obligation on the part of the employer to provide written notification of the dismissal indicating the reasons for it if the cause exist. That mean that for those workers who are not covered by the employment stability (managers and workers with less than 3 months' service) and who are dismissed without cause, there is no obligation to indicate the reason for dismissal.
The OLL establishes a distinction between justified dismissal (despido justificado) and unjustified dismissal (despido injustificado) (art. 93 OLL).
According to art. 112 OLL, any permanent worker who is not a manager and has more than 3 months of service has the right to employment stability: that means that they cannot be dismissed without a just cause. Those who are not covered by employment stability can be dismissed without a cause.
In particular, pursuant to art. 102 OLL, in order to be considered justified, a dismissal shall be based on the following grounds (conduct-based): - dishonesty or immoral behaviour; - acts of violence except in legitimate self-defence; - insult or serious lack of respect towards the employer, his or her representatives or family members living in his or her home; - deliberate action or gross negligent acts affecting safety or health in the workplace; - forgetfulness or carelessness seriously affecting safety or health in the workplace; - unjustified absence from work for three working days within the period of one month; - material damage to the plant, tools, furniture belonging to the enterprise, raw materials, finished or partly processed products, plantations or other relevant property, whether deliberate or resulting from serious negligence; - disclosure of secrets of production, construction or process; - serious breach of the obligations under the contract of employment; or - abandonment of work.
As a rule, the OLL only allows dismissal based one of the above listed cause in respect of workers covered by the employment stability (= those with at least 3 month's service, hired under a permanent contract and who are not managerial employees). However, under the same law, it is still possible for an employer who persists in dismissing an employee who benefit form such stability, even without having a just cause (injustified dismissal) to carry out the dismissal provided that he/she pays a compensation for unjustified dismissal. Such compensation can be paid in the course of the legal proceedings or even at the time of the dismissal. In such cases, the proceedings before the judge will not take place. (art. 125 and 126 OLL).
Economic reasons are not considered to be just cause for termination. However, collectives dismissals for economic or technological reasons as defined in the law, and workforce reduction based on ongoing economic circumstances, or technological changes are permitted in accordance with specific procedures (art. 34 OLL on collective dismissals and art. 46 OLLR on workforce reduction).
HOWEVER, in spite of those legislative provisions on dismissal, the dismissal system was amended by presidential decrees enacted at regular interval since 2002, usually with one-year validity, the latest (as of 2011) having been adopted on 16 December 2010 (No. 7914) covering the period from 1 January 2011 to 31 December 2011. These decrees establish 'specific job stability' (which is a form of immunity from dismissal), in favour of all workers covered by the Labour Code except for temporary workers, managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage(only about 5 per cent of employed workers). Under the "immunity decree", dismissal is only allowed for a just cause (those listed in the OLL) which shall be approved in advance by the Labour Inspectorate. Failure to comply with entail mandatory reinstatement of the dismissed worker. Therefore, as a result of the immunity decrees, it is no longer possible for an employer to dismiss a worker (except for the above mentioned excluded workers) for a reasons other than a conduct-related just cause by payment compensation for in advance. However, the rules contained in Decree do not prevent the parties from concluding an agreement in order to carry out redundancies (workforce reduction) through collective bargaining (art. 2 of the Decree).
Prohibited grounds: marital status; pregnancy; race; sex; sexual orientation; religion; political opinion; social origin; age; trade union membership and activities
Art. 26 OLL and 9 e) OLLR : non-discrimination in employment. Art. 26 OLL and 9 e) OLLR : non-discrimination in employment. See aslo Equal Opportunities for Women Act of 15 August 1993 [Ley de Igualdad de Oportunidades para la Mujer], art. 15: It is unlawful to dismiss or pressure a woman, or diminish her rights, during or as a result of pregnancy. If a woman believes her rights have been violated she may bring a constitutional action in order that they be restored to her. See also art 384 OLL: A pregnant woman worker shall be immune from dismissal during pregnancy and for one year after confinement, provided that no serious fault is committed, in which case the prior authorization of the Labour Inspectorate shall be required. This protection also applies to a woman worker who has adopted a child.
Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; workers with family responsibilities; workers performing military/alternative service
Venezuelan law provides that certain workers, for various reasons, are irremovable and may not be dismissed, transferred or employed in less favourable working conditions without just cause approved in advance by the labour inspector (art. 449, OLL). This protection is, generally, reserved for trade union promoters and board members, promoters of collective agreements and workers involved in collective disputes against employers, but has also been extended to other categories of persons, whether or not they are linked to trade union activity or collective relations. The following may therefore enjoy protection under the BLA:
* any worker during the period of suspension of his/her employment relationship has been suspended from work (this includes compulsory military service, work injury or illness causing the absence of the worker for not more than 12 months, maternity leave, educational leave... : see sec. 94); * a pregnant woman, during pregnancy and up to one year after confinement (art. 384); * an adoptive mother, during the year following adoption (art. 384(1)); * board members of a trade union, during their management and up to three months after the expiry of the term for which they were elected (art. 451); * promoters (and applicants for memberships), from the date of notification until registration of the union, which should not exceed three months (sec. 450); * the trade union delegate aboard a ship flying the Venezuelan flag (art. 356); * workers during trade union elections, from the notice of convocation until the election itself, a period which should not exceed three months within a period of two years (art. 452); * workers involved in a collective labour dispute (art. 458 and 506); * workers affected by a draft collective agreement, during the period of negotiations and up to 180 days, which may be extended by 90 days in exceptional circumstances (art. 458 and 520); * workers who accept changes in working conditions for economic reasons which jeopardize the work or existence of the enterprise, during the period the agreement is in force (art. 525 and 526); * workers affected by the request procedure of the standard-setting labour meetings, during the meeting session (art. 528 and 533(f)); * workers who are appointed labour directors or substitutes during their terms in office (sec. 617); and * members of the safety and health committee of the enterprise while they are exercising their functions on the committee (art. 37)
HOWEVER, in spite of those legislative provisions on dismissal, the dismissal system was amended by presidential decrees enacted at regular interval since 2002, usually with one-year validity, the latest (as of 2011) having been adopted on 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 entail mandatory reinstatement. Managers, workers with less than three months' seniority, employees in positions of trust, and workers who earn more than three times the minimum wage (only about 5 per cent of employed workers) are excluded. Workers in the oil and extraction sectors also enjoy security in employment and may not be dismissed unless there is a just cause.