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El Salvador - Conditions de fond du licenciement


Conditions de fond du licenciement (motifs autorisés et prohibés) - El Salvador - 2010    

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Obligation d'informer le travailleur des raisons du licenciement : Oui
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.


Motifs autorisés (licenciement justifié) : motifs économiques; conduite du travailleur; capacité du travailleur
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.


Motifs prohibés: grossesse ; congé de matérnité; race; couleur; sexe; religion ; opinion politique ; origine sociale ; nationalité/origine nationale ; affiliation et activités syndicales ; handicap; statut sérologique VIH
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.


Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs; femmes enceintes ou en congé de maternité
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.