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> GOVERNANCE - home > Employment protection legislation database - EPLex

Substantive requirements for dismissals


Antigua and Barbuda - 2018    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Upon termination by an employer subsequent to the expiration of the probation period, the employer is required to furnish a written statement indicating the precise reason for the termination, upon a request being made by the employee within seven days of termination or notice thereof (sec. C10 LC as amended by sec. 8 LCA).


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • Sec. C56 LC: After the expiry of the probationary period, every employee has the right not to be unfairly dismissed and no employer shall dismiss any such employee without just cause.

    According to sec. C58 LC a dismissal is not unfair if the reason behind it:
    - relates to misconduct of the employee,
    - relates to the capability or qualifications of the employee to perform work
    - is that the employee was redundant;
    - is that the employee could not continue to work in the position he held without contravention (on his or on the employer's part) of a requirement of law; or
    - is some other substantial reason of a kind which would entitle a reasonable employer to dismiss an employee holding the position which the employee held (inserted by sec. 18 LCA)
    There needs to be a factual basis for the assigned reason.
    The test for deciding whether or not a dismissal was unfair is whether or not, under the circumstances the employer acted unreasonably or reasonably.


Prohibited grounds: race; colour; sex; religion; political opinion; age; trade union membership and activities
Remarks:
  • The LC does not expressly provide a list of prohibited grounds for dismissal.
    However, sec. C4(1) LC prohibits discrimination with respect to hire, tenure, wages, hours, or any other condition of work on the grounds of race, colour, creed, sex, age or political beliefs.
    On trade union membership or activities, see sec. K(3) and K(4) LC.


Workers enjoying special protection: no protected groups
Remarks:
  • No provision found in the legislation reviewed.


Argentina - 2018    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Art. 242 LCL: Termination for "just cause" (justa causa):
    Either of the parties may terminate the contract of employment if the other fails to discharge his or her obligations under the contract to an extent such that the relationship can no longer continue. When an employer decides to dismiss a worker for "just cause", notice of the fact must be given in writing with a sufficiently clear indication of the grounds invoked for the termination of the contract.

    Where the other party challenges the termination, no changes on the grounds indicated in the notice are permitted (art. 243 LCL).


Valid grounds (justified dismissal): any fair reasons; economic reasons
Remarks:
  • Art. 242 LCL: Termination for "justified grounds" (justa causa): Either of the parties may terminate the contract of employment if the other fails to discharge his or her obligations under the contract to an extent such that the relationship can no longer continue. The LCL does not specify the conduct or acts that will be considered sufficient to terminate employment.

    Art. 247 LCL: A dismissal can be ordered for reasons of force majeure or on account of a shortage or reduction of work that is duly proved to be beyond the employer's control. In such case, the worker is entitled to receive compensation.

    Art. 244 LCL: A worker's abandonment of his or her work may be regarded as constituting a failure to discharge his or her duties only if he or she is found to be absent after formal notice has been served on the worker instructing him or her to resume work within a period appropriate to the circumstances of the case.



Prohibited grounds: marital status; pregnancy; race; sex; religion; political opinion; nationality/national origin; age; trade union membership and activities
Remarks:
  • See: Art. 17 LCL: general prohibition of discrimination in employment; art. 178 (dismissal on the grounds of pregnancy); art: 181-182 (dismissal on the grounds of marriage).


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; confirmed injured workers; older workers/workers on the verge of retirement; workers performing military/alternative service; workers on temporary leave following an occupational disease or a work injury; workers holding an elected position or discharging a public function
Remarks:
  • Argentine law provides special protection from employment termination to some specific categories of workers, including: women, trade union representatives and members, injured workers, workers on the verge of retirement, and those serving in the military.

    - A woman worker must notify her employer of her pregnancy and provide a medical certificate stating that her confinement will probably take place within the period indicated. She is to retain her employment during the period indicated and is entitled to the allowances granted by the social security schemes. She must also be guaranteed stability of employment, which will constitute an acquired right from the date on which she notifies her employer of the fact that she is pregnant (art. 177 LCL).

    It shall be presumed, in the absence of proof to the contrary, that the dismissal of a female worker is carried out on the grounds of maternity or pregnancy if it takes place within seven and a half months before or after confinement, if and when the woman has fulfilled her obligation to notify and prove, through certification, the fact that she is pregnant and, if applicable, the birth of the child. Under such circumstances, she should be paid compensation equivalent to one year's wages in addition to any other compensation required by law (arts. 177 and 182 LCL).

    - A worker belonging to a board of management or holding representative office in an occupational association with trade status, in bodies which require trade union representation, or holding political office in the Government, is entitled to automatic leave without pay, and the employer must keep his or her job open and reinstate him or her when he or she ceases to perform his or her duties. The worker is to enjoy security of employment throughout the term of office and for one year thereafter, unless there is good cause for dismissal (Act No. 23551 of 14 Apr. 1988 on trade unions, art. 48).

    - Trade union representatives in an enterprise may not be suspended, have their working conditions changed, or be dismissed throughout their terms of office and for one year thereafter, unless there is good cause for doing so. Security of employment for a trade union representative begins from the time of his or her candidature for a representative office in a trade union is submitted, and he or she may not be dismissed or suspended without good cause, nor may his or her conditions of work be modified for a period of six months. This protection will cease for those workers whose candidature is not officialised in accordance with the applicable electoral process from the moment in which such circumstance is certainly determined.(Act No. 23551, arts. 48 and 50).

    - Article 50 Act No. 23551 establishes the special protections for worker representatives: Workers protected by articles 40, 48 and 50 of this Act cannot be suspended, dismissed or have their contractual conditions modified without a judicial decision excluding such protection, in accordance with the procedure established in Article 47. […] When the employer violates the protection established in the abovementioned articles, the worker will have the right to demand before a judge its reinstatement, together with the salaries lost during the judicial procedure, or the reestablishment of its working conditions. […]

    - Where, on expiry of the periods for which work may be interrupted on account of a bona fide accident or illness, a worker is unable to return to work, the employer should keep his or her post open for one year, counting from the expiry of such periods (art. 211 LCL).

    - Where a worker fulfils the qualifying conditions for retirement pensions and begins the necessary formalities, the employer must maintain the employment relationship until the appropriate fund grants the benefit, for a maximum of one year (art. 252 LCL).

    - An employer must keep a worker's post open if the latter is obliged to perform compulsory military service because of an ordinary call-up, mobilization or special call-up, and must continue to do so from the date of the call-up and until 30 days after the completion of the service (art. 214 LCL).


Bolivia - 2011    

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Valid grounds (justified dismissal): worker's conduct
Remarks:
  • Art. 16 of the Labour Code sets out the following causes for the termination of employment and in these cases there is no entitlement to severance pay or compensation:
    a) Cause intentional material damage to work instruments.
    b) Revelation of industrial secrets.
    c) Imprudence or omission to industrial security or hygiene.
    d) Larceny or robbery committed by the employee.
    e) Partial or complete breach of agreement.

    (*translation from the document LABOR AND EMPLOYMENT DESK BOOK BOLIVIA C.R. & F. Rojas - Abogados)


Prohibited grounds: marital status; pregnancy; colour; sex; sexual orientation; religion; political opinion; nationality/national origin; age; trade union membership and activities; disabilities; financial status; language; birth; ethnic origin
Remarks:
  • Art. 14 of the Bolivian Constitution
    Regarding the trade union membership and activities, only the leaders of workers' organization are protected and they can not be dismissed without the prior authorization of a Labour Court. (Art. 2 of the Legislative Decree No. 37 of 7 February 1944)


Workers enjoying special protection: pregnant women and/or women on maternity leave; workers with disabilities; workers holding an elected position or discharging a public function
Remarks:
  • Art. 14 of the Constitution of Bolivia (general provisions on non discrimination)
    Regarding the trade union membership and activities, only the leaders of workers' organization are protected and they can not be dismissed without the prior authorization of a Labour Court. (Art. 2 of the Legislative Decree No. 37 of 7 February 1944)


Brazil - 2011    

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Obligation to provide reasons to the employee: No

Valid grounds (justified dismissal): none
Remarks:
  • Under the CLL, either party can terminate a contract of indefinite duration at will by observing notice requirements. (art. 499 CLL). In addition, an employer who dismisses an employee without cause has to pay a specific compensation (see remarks under severance pay).
    The 1988 Constitution provides for the right of rural and urban workers to be "protected against arbitrary dismissal or against dismissal without just cause, according to a supplementary law which shall establish termination pay, among other rights" which is implemented through the FGTS system (Act No. 8036 of 1990). Employee's protection therefore lies in the right to receive termination payment ("verbas rescisórias").
    Certain categories of employees enjoy job stability and therefore can only be dismissed for serious reasons (see "workers enjoying special protection").
    In cases where the employee has committed one of the grave misconducts enumerated under the CLL, the employment relationship may be terminated by way of "dismissal for just cause" (art. 482 CLL)
    The acts entailing dismissal for just cause include: deceit; misconduct; breach of discipline or insubordination; criminal conviction (except if the sentence is suspended), habitual drunkenness or drunkenness while on duty; disclosure of trade secrets; neglect of duty; performance of acts that damage the reputation of the employer or third parties; if it is established by an administrative inquiry that the employee is guilty of acts which are detrimental to national security.
    In such cases, notice and compensation requirements shall not be observed.


Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; temporary work injury or illness; race; colour; sex; social origin; age; trade union membership and activities; participation in a lawful strike; ethnic origin
Remarks:
  • - Pregnant employees enjoy job stability and cannot be dismissed except for serious reasons from the date the pregnancy is confirmed until five months after confinement (this covers the duration of maternity leave which is 120 days) (art. 10(IIa) Constitution, Transitional Provisions). See also Act 9799 of 1999, which prohibits any form of discrimination against women in employment (including on the grounds of pregnancy).
    - Act No. 9029 of 13 April 1995 prohibits discrimination practices on the basis of sex, origin, race, colour, marital status, family status or age, in respect of access to employment or termination of employment.
    - Security of employment is guaranteed through reinstatement to employees who, because of an employment accident or occupational disease, were obliged to suspend the employment relationship (Act No. 8213 of 24 July 1991).
    -The Constitution prohibits the dismissal of a unionized employee, except on account of a serious misconduct from the moment he or she registers as a candidate for a leadership or representative position in a trade union and for one year thereafter (art. 8(VIII) Constitution).
    - Dismissal of workers involved in a strike is prohibited expect in the event of an abuse of the right to strike (Act 7783 of 1989, art. 7).


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; workers with a long period of service; workers on temporary leave following an occupational disease or a work injury
Remarks:
  • - The Constitution prohibits the dismissal of a unionized employee, except on account of a serious misconduct from the moment he or she registers as a candidate for a leadership or representative position in the trade union and for one year thereafter (art. 8(VIII), Constitution). If the Court declares the dismissal unjustified, such category of employee has the right to reinstatement.
    - The Constitution also prohibits arbitrary dismissal or dismissal without cause of Workers' representatives on the Internal Accident Prevention Commission from the date of registration as a candidate until one year after the end of his or her term of office (art. 10(IIa), Constitution, Transitional Provisions). The CLL also provides that if the employer fails to prove the existence of disciplinary, technical, economic or financial reasons before the Court, those employees shall be reinstated (art. 165 CLL).
    - Pregnant workers also enjoy job stability and can therefore not be dismissed except for serious reasons from the date the pregnancy is confirmed until five months after confinement.
    (art. 10(IIa) Constitution, Transitional Provisions).
    - Until the adoption of the 1988 Constitution, workers with at least ten years of service enjoyed job security and could only be dismissed on the grounds of a serious offense or force majeure upon authorization from the Labour Court. For those workers who have acquired the right of security of tenure after ten years of service before the adoption of the 1988 Constitution (= those hired before 1978), the job security provisions of the CLL are still applicable. Dismissals are prohibited except on account of a serious offence or force majeure (art. 492 CLL). If none of those grounds are proved, they are entitled to reinstatement or compensation in lieu of reinstatement.
    - Security of employment is guaranteed through reinstatement to employees who, because of an employment accident or occupational disease, were obliged to suspend the employment relationship (Act No. 8213 of 24 July 1991).


Canada (Federal only) - 2012    

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Obligation to provide reasons to the employee: No
Remarks:
  • No general obligation on the part of the employer to indicate the reasons for the dismissal to employees when dismissing them.
    However, the employer shall provide a written statement indicating the reasons for dismissal only upon request by the employee or the inspector in the process of a complaint for unjust dismissal. According to sec. 241. (1) CLC, this only applies to employees described in sec. 240(1). This covers any employee:
    (a) who has completed twelve consecutive months of continuous employment by an employer, and
    (b) who is not a member of a group of employees subject to a collective agreement.
    In addition this provision is subject to the restrictions set up in sec. 242(3.1): complaints of unjust dismissal do not cover lay-off due to lack of work or the discontinuance of a function .


Valid grounds (justified dismissal): any fair reasons
Remarks:
  • The CLC does not contain as such a provision requiring that termination with notice be justified by a fair reason. However, this is implied from the division XIV of the Code on "unjust dismissal". This division provides for the right of an employee who has completed 12 consecutive months of continuous employment and is not covered by a collective agreement to make a complaint of unjust dismissal to the competent authority which may order reinstatement or compensation if the dismissal is found to be unjust. (sec. 240 and 242 CLC)
    Complaint of unjust dismissal are not available to employees who have been laid off because of lack of work or because of the discontinuance of a function (sec. 242 (3.1) CLC)



Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; temporary work injury or illness; race; colour; sex; sexual orientation; religion; trade union membership and activities; disabilities; whistle blowing; raising occupational health and security concerns; ethnic origin
Remarks:
  • Under the CLC, the following situations constitute invalid grounds for the dismissal of an employee:
    - the employee's trade union membership and activities, participation in a general strike action or participation in proceedings against the employer's related to those matters (sec. 94 and 96 CLC);
    - the employee has participated in proceeding or inquiry (filing a complaint, testifying) regarding occupational and health and safety matters. (sec. 147 CLC)
    - the employee is pregnant or has requested maternity or parental leave (sec. 209.3 CLC);
    - garnishment proceedings may be or have been taken against the employee (sec. 238, CLC); and
    - the employee has been absent due to illness or injury, provided that he or she had worked for the employer for at least three months, and that his or her period of absence was not over 12 weeks. Nevertheless, the employee must submit a medical certificate to the employer within 15 days after returning to work (sec. 239 CLC).
    - the employee is absent from work due to work-related illness or injury (sec. 239.1 CLC)

    In addition, see the general prohibition of discrimination including in employment matters contained in the Canadian Human Rights Act, R.S.C. 1985, c. H-6: see sec. 3 on grounds of discrimination together with art. 7 on discriminatory practice in employment that prohibits an employer from refusing to employ or continuing to employ an individual on a prohibited grounds of discrimination.
    See also sec. 14.1 on prohibition of retaliation for filing a complaint of discrimination.
    (The prohibited grounds of discrimination are the following: race, national or ethnic origin, colour, religion, age, sex (which includes pregnancy or child-birth), sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered [prior to March 2012: conviction for which a pardon has been granted])
    Note that this Act only applies within the realm of federal jurisdiction; each provincial and territorial government has enacted its own anti-discrimination law.


Workers enjoying special protection: no protected groups
Remarks:
  • No statutory provision found in the legislation reviewed.


Chile - 2018    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • * 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
Remarks:
  • 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
Remarks:
  • - 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
Remarks:
  • - 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


El Salvador - 2010    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Art. 60 LC: Upon termination of employment the employer shall issue a certificate which shall include the reasons for termination if the employee so requests.


Valid grounds (justified dismissal): economic reasons; worker's conduct; worker's capacity
Remarks:
  • *Article 55 LC: It is legally presumed that a worker is dismissed without just cause, except for those causes listed in the law.

    *Art. 50 LC provides for a limited list of justified grounds for dismissals which relate mainly to the worker's conduct and capacity.
    The employer can legally terminate (without notice) the contract under the following grounds:
    - if the worker deceived the employer by means of false letters of recommendation or certificates when the contract was concluded. This ground ceases to be operative after the worker has completed 30 day's employment;
    - due to the worker's repeated negligence;
    - if the employer lost confidence in an employee exercising managerial surveillance or similar functions;
    - if the worker reveals manufacturing secrets or communicates administrative matters to the detriment of the undertaking;
    - if the worker commits serious acts of immorality inside the undertaking or while performing work outside the workplace
    - if the worker commits disrespectful acts against the employer or his/her relatives, except in the case of provocation
    - if the workers commits acts causing serious disruption to the company's activity;
    - if the worker (either intentionally or by negligence) seriously endangers the safety or operation of the establishment, or the persons therein safety or activity of the workers, or their health;
    - if the worker deliberately damages the plant, machinery, tools, work implements, goods or merchandise
    - if the worker is absent from work without any justification for two consecutive working days, or a total of three days within the same months; or
    - If the worker, after imprisonment or pre-trial detention, comes back to work, within three days from the date of release, and s/he committed a crime against the employer or his/her relatives
    - If the worker commits serious breaches of the obligations under the contract of employment
    - In the event of disobedience to the employer (or employer's representative)
    - If the worker drinks alcohol or takes drugs during working time or if s/he works under the effect of alcohol or drugs
    - If the worker does not fulfil his/her obligations under art 24 LC
    * According to art. 51 LC, inefficiency or negligence are not valid reason for dismissal, provided that they are caused by a disease or by a transfer to a superior assignment. In this case, the worker has the right to be reinstated in his/her previous position.
    * According to art. 49 LC, the employment contract shall terminate, following a judicial decision authorizing the dismissal, in case of:
    - closure of all or part of the undertaking or establishment, or final reduction of the activities, resulting from the unprofitably of the business;
    - business closure caused by the exhaustion of the substance exploited by the extractive industry.


Prohibited grounds: pregnancy; maternity leave; race; colour; sex; religion; political opinion; social origin; nationality/national origin; trade union membership and activities; disabilities; HIV status
Remarks:
  • - The general provision on non-discrimination in employment (art. 30(12) LC) stipulates that employers are not permitted "to establish any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction or social origin, except in cases provided for by the law aimed at protecting the person of the work".
    - Art. 30(15) LC (inserted by DL N°611 of 2005) prohibits discrimination on the basis of the HIV/AIDS status.
    In addition, the Act on the prevention and control of human immuno-deficiency virus infection (HIV/AIDS) (Legislative Decree No. 588 of 24 October 2001) guarantees the right of "any person living with HIV/AIDS" to obtain employment that does not involve risky contact, and not to be dismissed or forced to accept inferior pay, benefits or conditions on the grounds of his or her illness (art. 5.a).
    - On pregnancy and maternity leave, see art. 113 LC: An employer cannot dismiss a pregnant women by way of de facto dismissal or dismissal following a court's decision during the entire period of pregnancy and until the end of the maternity leave unless the alleged cause for dismissal relates to facts which took place prior to the beginning of pregnancy. Even in such case, the dismissal will only be effective immediately after the end of the maternity leave.
    - Persons with disabilities are entitled to protection against all discrimination (art. 2.1 of Decree No. 888 of 2 May 2000, on equal opportunities for persons with disabilities), and in particular, "to obtain employment and carry on a paid occupation and to be protected from dismissal on grounds of his or her disability" (art. 2.5).
    - On trade union activities, see art. 205(c) LC which prohibits discrimination between workers and retaliatory action based on trade union activities.

    Note that, as expressed in the previous category, El Salvador has a limited list of valid ground for dismissal. That means that although many grounds are not expressly observed as prohibited in the legal text, they are still prohibited by exclusion to art. 55 LC.


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave
Remarks:
  • - On pregnancy and maternity leave, see art. 113 LC: An employer cannot dismiss a pregnant women by way of de facto dismissal or dismissal following a court's decision during the entire period of pregnancy and until the end of the maternity leave unless the alleged cause for dismissal relates to facts which took place prior to the beginning of pregnancy. Even in such case, the dismissal will only be effective immediately after the end of the maternity leave.
    - Trade union representatives:
    Previous authorization from the competent authority is required for the dismissal of a worker covered by trade union immunity (Constitution, art. 47, and Labour Code, art. 248). Trade union immunity protects trade union leaders, candidates for election to the union board, workers in the process of establishing or organizing a union and the founding members. This protection is subject to certain conditions with regard to numbers of persons protected and periods of protection which can be increased through collective agreements.
    During the process of establishing the union, protection lasts for not more than 60 days from the date of notification of the administrative authority (art. 248.a) and for the founding members for up to 60 days following registration of the union (art. 214). In the case of trade union representatives, protection lasts for up to one year from the expiry of their mandate and for candidate officers, from one month before the elections take place until one week after the election.


Honduras - 2012    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Art. 117 LC.


Valid grounds (justified dismissal): worker's conduct; worker's capacity; economic reasons
Remarks:
  • * Art. 112 LC provides a list of just causes which allow the employer to dismiss an employee without liability on his or her part. These just causes include:
    - deceit by means of false letters of recommendation or certificates, -
    - acts of violence, insults, or serious indiscipline at work against the employer or his/her relatives,
    - deliberate material damages against the plant, machinery, tools, goods or merchandise and any serious negligence endangering the safety of the workers or the material,
    - acts of immorality,
    - revealing manufacturing secrets,
    - criminal conviction,
    - unjustified absence from work without any justification for two consecutive working days, or a total of three days within the same months,
    - repeated failure to adopt the preventive measures or to follow the proper procedure to avoid accidents at work and occupational diseases,
    - obvious incapacity and inefficiency to fulfil the obligations under the contract,
    - infectious disease or mnetal illness when the worker refuses treatment,
    - serious misconduct and serious breaches of the obligations under the contract of employment.

    In addition, art. 111 LC lists other causes of termination such as force majeure, insolvency, business closure, and suspension of the activities of the employer for more than 120 days for economic reasons (see below under "collective dismissals").

    Art. 116 LC allows for termination of a contract of indefinite duration by either party by giving advance notice to the other party.


Prohibited grounds: pregnancy; trade union membership and activities
Remarks:
  • Dimissal on the grounds of pregnancy and lactation is prohibited in art. 144 LC.
    Art. 96 c) also prohibits the dismissal of an employee on the grounds of his or her trade union membership and his or her participation in trade union activities.

    Note that Art. 12 of the LC prohibits discrimination based on race, religion, political opinion and economic status, but only with regards to any social welfare, educational, cultural, recreational or commercial establishment operated for the use or benefit of the community in any undertaking or workplace, whether under private or state ownership.


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave
Remarks:
  • - Employees who are members of the Board of Directors of a trade union enjoy special protection: they can only be dimissed with prior authorization from the Labour judge (the autorization will be only delivered if the employer duly proved the existence of a just cause) (art. 516 LC).
    If the employer fails to comply with this requirement, he or she will be liable to pay the 6 months' salary to the trade union organization.
    - The same rule applies to pregnant women: art. 124 LC.
    - The LC also requires the employer to obtain prior authorization from the Labour Inspector (or the mayor) before dismissing a women during the entire period of pregnancy and 3 months after the child delivery. Such authorization to dismiss can only be given if the existence of one of the just causes listed in art. 112 LC is proven (see arts. 144 and 145 LC)



Mexico - 2010    

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


Valid grounds (justified dismissal): worker's conduct; economic reasons; worker's capacity
Remarks:
  • 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
Remarks:
  • * 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
Remarks:
  • *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.


Panama - 2010    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • 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.


Valid grounds (justified dismissal): economic reasons; worker's conduct; worker's capacity
Remarks:
  • 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
Remarks:
  • 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
Remarks:
  • - 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.


Saint Lucia - 2011    

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Obligation to provide reasons to the employee: No

Valid grounds (justified dismissal): none
Remarks:
  • Either party may terminate the employment contract with notice. No grounds are required for dismissal with notice of a contract for an indefinite period (sec. 6(3) CSA).
    However, according to sec. 7(1) CSA, an employer may dismiss an employee, without giving due notice, in the
    following circumstances:
    (a) where an employee is guilty of misconduct, whether in the course of their duties or not, inconsistent with the fulfilment of the conditions of the contract of service;
    (b) for wilful disobedience of lawful orders given by the employer;
    (c) for repeated substantial neglect of their duties;
    (d) for absence from work without the permission of the employer or without reasonable excuse;
    (e) for lack of skill which the employee had assured the employer of possessing;
    (f) abandonment of employment by the employee;
    (g) by agreement, in writing, between the parties;
    (h) by expiry of the term of the contract of service.

    In addition, art. 10 CSA provides for the employee's right to severance pay in the event of termination of employment for economic reasons (i.e business closure or restructuration, change of ownership)


Prohibited grounds: marital status; pregnancy; family responsibilities; filing a complaint against the employer; colour; sex; religion; political opinion; social origin; nationality/national origin; age; trade union membership and activities; disabilities; whistle blowing; ethnic origin
Remarks:
  • * Except for trade union membership and activities, all those grounds are listed in the Equality of Opportunity and Treatment in Employment and Occupation Act as prohibited grounds of discrimination (sec. 3(2)). Dismissal on those grounds is prohibited under sec. 4(3)(e) of that Act.
    The Act also make it an offence to commit an act of victimisation against a person because that person
    - has made (or proposes to make) a complaint or brought proceedings under this Act,
    - has furnished information or testified before any person performing any power under this Act or proposes to do so;
    - has made in good faith, allegation that a person has committed an unlawful act of discrimination (sec. 20(2) EOTEOA).
    * Dismissal or any discriminatory acts on the grounds of trade union membership or activities is prohibited under the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act. (sec. 5(1) TUEOA)


Workers enjoying special protection: no protected groups

United States - 2017    

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Obligation to provide reasons to the employee: No

Valid grounds (justified dismissal): none
Remarks:
  • The United States has an "at will" employment system which allows an employer to terminate an employee at any time and for any reason, or for no reason at all.
    However, it would be inaccurate to conclude that employers in the United States have complete freedom in the discharge of employees; workers are protected from arbitrary termination of employment, through various ways, as follows:
    1) Collective agreements: Where employees are represented by a union, their collective-bargaining agreement nearly always contains a provision that requires 'just cause' for termination. Such provisions are enforceable through the grievance and arbitration process set forth in nearly all collective-bargaining agreements. The scope of such protection is limited by the low rate of union representation (12.3 % of the American workforce unionized as of 2009 in both public and private sectors in 2009, 7.2 % in the private sector - See: http://www.bls.gov/news.release/union2.nr0.htm (last visited June 16, 2010).
    2) Statutory protection: Numerous federal laws prohibit discrimination in employment, and those laws operate to prohibit termination of employment based on certain proscribed reasons (see below prohibited grounds)
    3) Judicial protection: Another protection against employment at-will comes from case law, in which there are three major exceptions namely a) public policy exception, b) the implied contract exception and c) the implied Covenant of good faith and fair dealing.
    a) the most widely accepted exception, recognized by forty-three states, is the public policy exception. The public policy exception under case law is available largely to protect employees from dismissal in those situations where they refuse to commit an illegal or unethical act requested by the employer or where they choose to exercise a statutory right, for example rights under the Occupational Safety and Health Act, 1970, or the Fair Labour Standards Act, 1938 (covering minimum wage and overtime). The recognition and scope of application of this exception varies from state to state.
    b) the notion of a breach of an implied contract of employment. An implied contract can come from an oral or written representation, or from an employer's past practice, leading to an employee's legitimate expectation that his or her employment will not be terminated without just cause. This exception is recognized in 38 of the 50 States
    c) Basic contractual principles have also given rise to recognition of an implied covenant of good faith and fair dealing in labour and employment law, leading to an assumption that dismissals should be fair and for just cause. This theory holds that a duty of good faith and fair dealing is owed in the performance and enforcement of all contracts. As of 2000, only 11 states recognized the above exception.
    (On those exceptions see: Muhl, Charles J., "The employment-at-will doctrine: three major exceptions" in Monthly Labour Review. 2001 Vol. 24, No. 1, pp. 3-11 - Available at: http://www.bls.gov/opub/mlr/2001/01/art1full.pdf)


Prohibited grounds: pregnancy; maternity leave; filing a complaint against the employer; race; sex; sexual orientation; religion; age; trade union membership and activities; disabilities; parental leave; whistle blowing; gender identity; adoption leave; raising occupational health and security concerns; performing jury service; genetic information
Remarks:
  • Termination is unlawful if it is based on any of the following reasons:
    * family leave (including birth/adoption of a child or serious illness of employee, or a spouse, child, or parent): The Family and Medical Leave Act provides for 12 weeks of unpaid, job-protected leave but limited to employers with 50 or more employees and to employees who have worked at least 1, 250 hours for the employer during the preceding 12-month period) (FMLA [sec. 102](a)(1)], 29 U.S.C. sec. 2612(a)(1) and [sec. 104 (1)(a)] 29 U.S.C. sec. 2614(a)(1)). The law also prohibits retaliation against employees who attempt to exercise their rights under the law ([sec. 102(1)(b)], 29 U.S.C. sec. 2615(a)(2)). However, the employer can still terminate employment while the employee is on leave for reasons not connected with the fact that the employee took family leave (i.e restructuring).

    * union activity (or protected concerted activity): National Labour Relations Act (NLRA) [sec. 158(a)(3)] 29 U.S.C. sec. 158(a)(3).

    * race, color, religion, national origin, or sex (including pregnancy, childbirth, or related medical conditions): Civil Rights Act of 1964 (Title VII) (CRA) [secs. 703 and 701(k)], 42 U.S.C. sec. 2000e-2. and 2000e(k).

    * disability: Americans with Disabilities Act of 1990 (ADA) [sec. 102(a)] 42 U.S.C sec. 12112(a).

    * age: Age Discrimination in Employment Act of 1967 (ADEA), [sec. 4], 29 U.S.C sec. 623(a) (1).

    * raising health and safety concerns: The Occupational Health and Safety Act of 1970 (OSHA), has a provision that protects employees who report unsafe working conditions from termination by their employer: [sec. 11(c)(1)] 29 U.S.C sec. 660(c)(1).

    * genetic information: Genetic Information Nondiscrimination Act (GINA) [sec. 202], 42 U.S.C sec. 2000ff.

    * corporate whistle blowing: Sarbanes-Oxley Act of 2002 (SOX) protects an employee of any publicly traded company against retaliation from discharge as a result of reporting information or assisting in an investigation related to possible fraud by the employer where the employee has a reasonable belief that the employer has engaged in fraud or related misconduct: [sec. 806], 18 U.S.C sec. 1514A (a).

    * jury service: The Jury System Improvements Act of 1978 (JSIA), 28 U.S.C sec. 1875, prohibits an employer from discharging any permanent employee by reason of the employee's jury service or scheduled attendance in connection with such service in any court of the United States.

    * filing complaint against the employer: almost all of the discrimination statutes mentioned above have provisions prohibiting termination based on an employee's filing of or participation in a discrimination complaint proceeding. See NLRA [sec.8(a)(4)], 29 U.S.C sec. 158(a)(4); Title VII CRA [sec. 704], 42 U.S.C sec. 2000e-3; ADA [sec. 503(a)], 42 U.S.C sec. 12203(a); ADEA [sec. 4(d)], 29 U.S.C sec. 623(d). OSHA also has such a provision, discussed above, as does SOX, and the FMLA, also discussed above.


    *New in 2014: Sexual orientation and gender identity- in the Executive Order 13672 of July 21, 2014


Workers enjoying special protection: no protected groups

Venezuela, Bolivarian Republic of - 2011    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • 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.


Valid grounds (justified dismissal): worker's conduct
Remarks:
  • 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
Remarks:
  • 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
Remarks:
  • 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.