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> GOVERNANCE - home > Employment protection legislation database - EPLex

Avenues for redress (penalties, remedies) and litigation procedure for individual complaints


Antigua and Barbuda - 2018    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • See sec. B12 LC, as amended by sec. 6 of LCA: In an unfair dismissal or suspension without pay matter, a decisional officer may order the payment of a sum of money equal to loss of wages sustained and, in addition thereto he may also order the re-instatement or restoration of the person dismissed or suspended, or the payment of a sum of money in lieu of such reinstatement"

Reinstatement available: Yes

Remarks:
  • See sec. B12 LC as amended by sec. 6 LCA.

Preliminary mandatory conciliation: Yes

Remarks:
  • Complaints of unfair dismissals shall be first brought to the Labour Commissioner who shall seek to settle the matter by voluntary adjustment or settlement within 10 days. Conciliation or mediation may be used for those purposes (see sec. C60, C61 together with sec. B5 LC).
    Failing to achieve voluntary adjustment or settlement, he shall transmit the matter to the Minister in charge of Labour who shall also himself attempt to achieve voluntary adjustment or settlement of the matter by taking whatever steps he deems appropriate.(sec. C62 together with sec. B6 LC) If these attempts do not yield any results, the Minister shall take a number of steps available to him (sec. B6(2) LC) including referral of the matter to a Hearing officer (sec. C63 LC).

Competent court(s) / tribunal(s): administrative body

Remarks:
  • The Hearing Officer is competent to hear complaints of unfair dismissal (upon referral by the Minister) and impose appropriate remedies (damages or reinstatement in addition to the payment of loss wages) (see. sec. B12, and C63 LC).

    It should be noted that the Industrial Relations Court has jurisdiction over trade disputes (collective disputes) and does not generally have jurisdiction over individual disputes such as disputes concerning dismissal.
    However, according to sec. 10 ICA provides that in addition to its jurisdiction, in any dispute concerning the dismissal of an employee, if in the opinion of the Court, an employee has been dismissed in circumstances that are harsh and oppressive or not in accordance with the principles of good industrial relations practice, it may order the re-employment or re-instatement of the employee and/or the payment of compensation or damages, or the payment of exemplary damages in lieu of such re-employment or re-instatement.

Existing arbitration: No

Remarks:
  • Dismissals complaints do not fall within the jurisdiction of the Arbitration Tribunal which is only competent to hear and determine any major trade dispute (sec. B8 LC). [A major dispute is a dispute which has led to an interruption of work which is continuing; or if there is no present interruption of work, may lead to an interruption of work: sec. K13 LC)

% of dismissals out of the total number of disputes: 46 %

Remarks:
  • Statistics for 2007 (% of termination, suspension, redundancy, lay-off disputes), from the Labour Department of Antigua and Barbuda.

Argentina - 2018    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
An employer who orders a worker's dismissal without good cause must pay the worker compensation equal to: one month's wages for every year of service and every fraction of a year greater than three months, taking as a basis for the calculation the highest monthly remuneration normally and regularly received during the last year or during the period for which the services were performed, whichever is less.

Remarks:
  • Art. 245 LCL

Reinstatement available: No

Preliminary mandatory conciliation: Yes

Remarks:
  • Mandatory conciliation is foreseen in Art. 1 of Act 24.635 (Ley Nº 24.635 - Procedimiento laboral. Conciliación obligatoria previa. Modificación de la ley 18.345)

    Act available at:
    http://servicios.infoleg.gob.ar/infolegInternet/anexos/35000-39999/36739/norma.htm

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 20, Organization and Procedures of National labour Justice, Act No. 18.345.

Existing arbitration: Yes

Remarks:
  • Voluntary arbitration is foreseen in Art. 28 of Act 24.635 when mandatory conciliation fails (Ley Nº 24.635 - Procedimiento laboral. Conciliación obligatoria previa. Modificación de la ley 18.345)

    Act available at:
    http://servicios.infoleg.gob.ar/infolegInternet/anexos/35000-39999/36739/norma.htm

    See also Article 149ff Ley Nacional de Empleo (Ley 18.435)

Bolivia - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • See Article 13 LC (above)

Reinstatement available: Yes

Remarks:
  • Articles 10 and 11 of Supreme Decree No. 28699 provides for the possibility for employees to choose between reinstatement or compensation in case of unfair dismissal.
    If the employee opts for reinstatement, he/she can request the Labour Authority to issue a reinstatement order, provided that the dismissal is proved to be unjustified.

Preliminary mandatory conciliation: No

Remarks:
  • Only for collective labour disputes

Competent court(s) / tribunal(s): labour court

Remarks:
  • The procedure is governed by the Code on Labour Procedure, 1979, (Código de procedimiento laboral 1979)

Existing arbitration: No

Remarks:
  • Only in the case of collective labour disputes.

    Note: In 2015, a new law on arbitration and conciliation was approved (Ley No. 708 of 25 June 2015), which explicitly excludes labour relations from its scope (Art. 5).

Brazil - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
- If a just cause is not recognized by the Court, the employee is entitled to compensation for dismissal without cause = 40% of the total amount deposited in the FGTS ("Fundo de Garantia por Tempo de Serviço". This amounts to: 40% x 8% x length of service (in months). This compensation for termination of employment is not payable until one year of employment has been completed.

-Workers under a fixed-term contract who are dismissed without cause are also entitled in addition to the above mentioned amount, to the payment of sum equal to half the remuneration to which he or she would have been entitled on the expiry of the contract.

Remarks:

Reinstatement available: Yes

Remarks:
  • Compensation through the FGTS system is usually the only remedy for unfair dismissal.
    However reinstatement is available in the following situation:
    * Dismissal of workers who had acquired the right of security of tenure after ten years of service before the adoption of the 1988 Constitution (= those hired before 1978). If a serious offence is not duly established, they shall be reinstated or be awarded compensation if the Court declares that reinstatement is not advisable (art. 495 CLL).
    * The same rules apply to those categories of employees enjoying job stability (i.e. pregnant women, member of a trade union board and workers' representatives on the Internal Accident Prevention Commission (CIPA)). If serious reasons for dismissal are not recognized by the Labour Court, they have the right to be reinstated.

Preliminary mandatory conciliation: Yes

Remarks:
  • Art 764 CLL: All labour disputes, whether individual or collective, which are referred to a labor court shall be submitted to conciliation proceedings before the labour judges.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 643-645 CLL: disputes arising out of relations between employers and employees should be settled by the labour courts. The Labour Court of Appeal, regional labour courts, and the Junta de Conciliação e Julgamento [JCJ] (first instance labour court) or the courts of ordinary jurisdiction have jurisdiction. Recourse to the labour courts is compulsory, without exemption, except for good and sufficient reason.
    - The JCJ are competent to judge and settle disputes in which the recognition of the security of tenure of the employee is claimed and disputes relating to compensation for the cancellation of a contract of employment (art. 652 CLL). In localities which do not fall within the jurisdiction of the conciliation and arbitration boards, the judges of ordinary jurisdiction shall be responsible for the administration of justice in labour matters (art. 668 and 669 CLL).

Canada (Federal only) - 2012    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Sec. 242(4)a) CLC (see below).

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In the event of unjust dismissal, the arbitrator may order the employer to pay compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person.

Remarks:
  • Sec. 242(4)a) CLC.
    Note that in addition, the arbitrator can also require the employer to take any similar action that is equitable to require of the employer in order to remedy or counteract any consequence of dismissal (sec. 242(4)c) CLC).

Reinstatement available: Yes

Remarks:
  • Sec. 242(4)b) CLC.

Preliminary mandatory conciliation: Yes

Remarks:
  • Sec. 241(2) CLC: on receipt of a complaint of unjust dismissal, the inspector shall endeavour to assist the parties to settle the
    complaint or cause another inspector to do so.

Competent court(s) / tribunal(s): none

Remarks:
  • Arbitration is the ordinary way of settling unjust dismissal cases.
    Note: civil remedies for wrongful dismissal are not addressed here.

Existing arbitration: Yes

Remarks:
  • Arbitration is the ordinary way of settling unjust dismissal cases.
    - Only employees who have completed 12 consecutive months of continuous employment with the same employer, and who are not members of a group of employees subject to a collective agreement, are entitled to make a complaint for unjust dismissal (sec. 240 CLC)
    - Unjust dismissals complaints shall be first submitted to an inspector within 90 days from the date of dismissal. The inspector shall first attempt to conciliate the parties. If conciliation fails, the inspector informs the Minister of Labour who then refers the complaint to an arbitrator (adjudicator) appointed by him for decision (sec. 240(2), 241(3), 242 CLC)
    Every order of an adjudicator is final and shall not be questioned or reviewed in any court. (sec. 243(1) CLC)

Notes / Remarks
This section covers complaints of and remedies for unjust dismissal which are regulated by the CLC and does not address civil remedies for wrongful dismissal.

Chile - 2018    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Compensation = severance pay (30 pays/year of service with a maximum of 330 days) increased by:
- 30% if a dismissal based the requirements of the undertaking is declared unjustified, unfair or unlawful by the court.
- 50 % if the court rules unjustified termination of employment due to unforeseen circumstances or force majeure;
- 80% if a dismissal based on unduly conduct or serious breach of obligations set forth in the contract is declared unjustified
- 100% if the alleged reasons for dismissal are serious misconduct, acts or negligence seriously affecting the safety of the establishment and deliberate material damages (art. 160, 1), 5) 6) LC) and the court rules that there were no plausible grounds for dismissal.

Remarks:
  • See art. 168 LC.

Reinstatement available: Yes

Remarks:
  • There is no general right to reinstatement following unfair dismissal.
    However reinstatement is available to the worker in the event of discriminatory dismissal (that is dismissal based on: race, colour, sex, age, marital status, union association, religion, politic beliefs, nationality and social origin) and which is declared serious by the court: see art. 489 LC.
    Similarly, if a worker who is not protected under the "fuero laboral" is dismissed as the result of anti-union or unfair labour practices, he or she can opt for reinstatement (art. 294 LC).

Preliminary mandatory conciliation: Yes

Remarks:
  • - Judicial conciliation is part of the procedure before the labour jurisdiction: art. 453 2) LC.
    - Small claims proceedings (procedimiento monitorio) = value not exceeding 10 months' wages: mandatory extra-judicial conciliation before the Labour Inspectorate (art. 497 LC)

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 420 a) LC: 'Juzgados de Letras del Trabajo'

Existing arbitration: No

El Salvador - 2010    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 58 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) In case of unjustified dismissal (despido de facto) of a worker under a contract of indefinite duration, the employer has to pay a compensation of 30 days' basic wages per year of service or in proportion for any fraction thereof. However, this compensation shall not be less than 15 days' basic wages. No salary exceeding four times the minimum legal daily salary will be considered for the effects of calculating the compensation.
In addition, the employee is entitled to recieve back pay which shall accrue from the date of the complaint until the court decision. However it shall not exceed 35 days' wages (increased by max. 20 days if the case goes to appeal or cassation)


2) When a FTC worker is dismissed without just cause before the expiration of the contract, the employer has pay compensation which shall amount to the wages the worker would have been entitled to until the expiry of the FTC.

Remarks:
  • See art. 58 and 59 LC.
    On back pay, see art. 420 LC.

Reinstatement available: No

Remarks:
  • The Labour Code does not provide for the reinstatement of workers who have been unfairly dismissed.

Preliminary mandatory conciliation: Yes

Remarks:
  • Only in dismissals that lead to judicial procedure. Art. 385 LC.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 369 LC - "los jueces laborales" in first instance and "las Cámaras de lo Laboral" in second instance.

Existing arbitration: No

Remarks:
  • Arbitration is only foreseen for the settlement of collective disputes. due to economic or interest reasons. (Art. 480 and 500-514 LC).

    Note that art. 24 Conciliation, Mediation and Arbitration Act excludes labour disputes from its scope of application.

Honduras - 2012    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 113 LC.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In the employer fails to prove the existence of one of the just causes listed in art. 112 LC, and reinstatement is not ordered by the judge, the employer will be liable to pay the employee compensation of an amount equivalent to the indemnity payable in the event of unjustified dismissal (auxilio de cesantía) which varies according to the employee's length of service, as follows (art. 120 LC):
- the length of service is between 3 and 6 months: 10 days of salary,
- from six months to one year of service: 20 days of salary,
- after one year of continuous services: one month's salary for each year of service, up to a maximum of 25 months' salary.
However, according to article 120A LC, the cap is reduced to 15 months' salary in micro-enterprises, which are defined as enterprises with a maximum of 10 employees.
In addition, the employer shall pay the back wages from the date of the dismissal until the decision of the labour judge is final.

Remarks:
  • See art. 113 LC combined with art. 120 LC.
    On back wages, see art. 113 LC.

Reinstatement available: Yes

Remarks:
  • Art. 113 LC. Reinstatement is available is lieu of compensation for unfair dismissal if the employer fails to prove the existence of one of the just causes listed in art. 112 LC (i.e serious misconduct, violence, unjustified absence, inefficiency...).

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 750 LC: preliminary conciliation is carried out by labour judge.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Arts. 666, 679 LC.
    First instance judges are the "Juzgados de Letras del Trabajo".
    Appeals are heard by the "Cortes de Apelaciones del Trabajo".

Existing arbitration: No

Mexico - 2010    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 48 FLA

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Art. 50 FLA. Compensation for unfair dismissal consists of the following:

- if the employment relationship is for a specified period of less than one year, an amount equal to the total amount of remuneration payable for one-half of the entire period of employment; if the employment relationship lasted for more than one year, six months' wages for the first year of service plus 20 days' wages for each additional year of service;

- if the employment relationship is for an unspecified period the compensation consists of 20 days' wages for each year of service

- in addition to the compensation referred to in the preceding clause, three months' wages plus the entire remuneration payable in respect of the period from the date of dismissal to the date on which the compensation is paid.

Remarks:
  • Art. 50 FLA.

Reinstatement available: Yes

Remarks:
  • Art. 48 FLA: The worker may apply to a Conciliation and Arbitration Board for reinstatement in the post occupied or for compensation in the form of three months¿ wages, at his or her choice.

    Under art. 49 of the FLA, the employer may, in the following cases, be released from the obligation to reinstate the worker by paying the compensation referred to in art. 50:

    in the case of workers who have been employed for less than one year in the undertaking;
    if sufficient evidence is furnished to the satisfaction of the Conciliation and Arbitration Board that the worker on account of the work performed or the nature of the work is in direct and permanent contact with the employer and the Board is of the opinion, taking into consideration all the circumstances of the case, that continuation of the work is impossible;
    in the case of employees in a position of trust;
    in domestic service; and
    in the case of casual workers.

Preliminary mandatory conciliation: No

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 123 (A)( XX)of the Mexican Constitution, 58 FLA.
    In Mexico, employment disputes are heard by the Conciliation and Arbitration Board (Junta de Conciliación y Arbitraje). They can be heard by the Federal or Local board according to distribution of competencies (Art. 621 FLA).

    This is a tripartite body that exercises jurisdictional functions. See art. 605ff for composition and structural organization. Note that this was modified in November 2012.

Existing arbitration: No

Panama - 2010    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • Art. 225 LC

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
In case of unfair dismissal or failure of notification if mandatory, the worker is entitled to receive from his or her employer compensation based on the following scale (sec. 225, LC) For periods of service prior to 2 April 1972:
* for less than one year's service, the equivalent of one week's wages for every three months of employment, and with a minimum amount of such compensation equivalent to one week's wages;
* for a period of service of between one and two years, the equivalent of one week's wages for every two months of employment;
* for more than two and not more than five years' service, three months' wages;
* for more than five and not more than ten years' service, four months' wages;
* for more than ten and not more than 15 years' service, five months' wages;
* for more than 15 and not more than 20 years' service, six months' wages; and
* for more than 20 years' service, seven months' wages.
This scale may not be applied on a graduated basis, i.e. the highest applicable level determines the amount to be paid.
For periods of service after 2 April 1972, the following scale is to be applied:
* for less than one year's service, the equivalent of one week's wages for every three months of employment (the minimum amount of such compensation to be the equivalent of one week's wages);
* for a period of service between one and two years, the equivalent of one week's wages for each two months of employment;
* for a period of service between two and ten years, the equivalent of wages for three additional weeks for each year of service; and
* for more than ten additional years of service, the equivalent of one additional week for each year of service.
This scale is applied on a graduated basis, the total length of service completed being distributed among the corresponding steps set out in the previous sub-items. In the case of service rendered in periods before and after 2 April 1972, the above-mentioned scales are to be applied separately.
In the case of employment commencing after the LC entered into force, compensation should be equivalent to three to four weeks of wages for each year worked in the ten first years; and each year after ten years should be compensated with the equivalent of one week's wages for each year. Such compensation should not be combined with any other scale. For the two instances cited in this sub-item, where a full year has not been completed, the corresponding proportion is due.

Reinstatement available: Yes

Remarks:
  • Art. 218 LC: a worker under a contract of unspecifed duration can ask for reinstatement or compensation for unfair dismissal before the Labour Court or the Conciliation Board.
    According to art. 219 LC, if reinstatement is ordered by the Court, the employer nonetheless terminate the employment relationship by paying the statutory compensation for unfair dismissal plus a surcharge, calculated as follows:
    50%, in addition to the corresponding compensation, for those workers employed in the undertaking at the time the LC entered into force; and
    25%, in addition to the corresponding compensation, for those workers who begin working after the LC entered into force, provided that the employer has not established a severance fund.
    In addition, wages in arrears are to be paid in the form prescribed by the respective judgment, in accordance with sec. 218 of the LC.

Preliminary mandatory conciliation: No

Remarks:
  • No provision found in the legislation reviewed.

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 218 LC: The Labour Tribunals and/or The Conciliation and Decision Boards (junta de conciliación y decisión,) have jurisdiction over claims of unfair dismissal. The "juntas de conciliación y decisión" which are tripartite bodies and are integrated into the "Jurisdiccion Laboral".

Existing arbitration: Yes

Remarks:
  • Art. 218 LC: The Labour Tribunals and/or The Conciliation and Decision Boards (junta de conciliación y decisión,) have jurisdiction over claims of unfair dismissal. The "juntas de conciliación y decisión" which are tripartite bodies and are integrated into the "Jurisdiccion Laboral".

Peru - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Arbitrary dismissal (= a valid reason has not been given or cannot be legally substantiated): No right to be reinstated, the worker is only entitled to compensation, as follows:
- Ordinary compensation = 1.5 month's wages for each year of service up to a maximum of 12 months' wages.
- Compensation in micro enterprises: 10 days for each year of service up to a maximum of 90 days' wages.
- Compensation in small enterprises: 20 days' wages for each year of service up to a maximum of 120 days' wages.

2) Dismissal based on prohibited grounds :
The dismissal is null and the worker shall be reinstated but in complying with the decision he or she may opt for compensation, the amount of which is the same as compensation for arbitrary dismissal (see 1)).

Remarks:
  • - See sec. 34 and 38 LPCL (general rules).
    On the specific compensation for arbitrary dismissal in micro and small enterprises, see Law on Micro and Small Enterprises [MSE], consolidated version of 2008, art. 47. Pursuant to that law, a micro enterprise is an enterprise employing 1 to 10 workers and whose maximum annual sales do not exceed 150 tributary tax units (Unidades Impositivas Tributarias (UIT)).
    A small enterprise is an enterprise employing 1 to 100 workers and whose maximum annual sales do not exceed 1700 tributary tax units (see art. 5 MSE)
    - In the event of a constructive dismissal, the worker may choose to bring an injunction against the employer's actions or he or she may choose termination of the contract. In case of such termination, he or she will be entitled to the payment of compensation equivalent to compensation for arbitrary dismissal (art. 30 LPCL)
    - Please note that compensation for arbitrary dismissal (art. 38 LPCL) is also due in the event the employer does not observe the preferential right of workers to be re-employed by their former employer within a year of a collective dismissal (art. 52 LPCL)

Reinstatement available: Yes

Remarks:
  • - If a dismissal is declared null and void (that means that the dismissal was based on prohibited grounds), reinstatement is mandatory. However, in complying with the decision the worker may opt for compensation instead (art. 34 LPCL)
    - There is no right to reinstatement in the event of an arbitrary dismissal (= a valid reason has not been given or cannot be legally substantiated). Compensation is the only available remedy is such case (art. 34 LPCL)

Preliminary mandatory conciliation: Yes

Remarks:
  • - The New Labour Procedure Law [NLPL], No 29497, in force from 15 July 2010 foresees a preliminary mandatory conciliation hearing and contains a much more detailed provision on the modalities of such preliminary hearing (art. 43).

Competent court(s) / tribunal(s): labour court

Remarks:
  • The New Labour Procedure Law [NLPL], establishes a hierarchy of courts to adjudicate labour disputes, consisting of the Magistrates Courts (Juzgados de Paz Letrados), the Labor Courts of First Instance (Juzgados de Trabajo), the Labour Branches of the High Court (Salas Laborales de la Corte Superior), and the Supreme Court (Corte Suprema). Dismissal cases are heard by the Labour Courts of First Instance (Juzgados de Trabajo). The extinction of the working relationship is observed by Specialized Labour Court as indicated in art. 2 and 51 of the NLPL.

Existing arbitration: Yes

Remarks:
  • Arbitration is recognized as a valid labour dispute resolution mechanism under certain conditions in the New Labour Procedure Law of 2010 (applicable from 15/07/2010): see supplementary provision 6).

Saint Lucia - 2011    

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Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • - The CSA does not contain provisions on avenues for redress for unfair dismissal. Non-compliance with procedural requirements is the only aspect covered by the CSA.
    Indeed, the CSA refers the determination by a tribunal of "any question (...) as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice". (sec. 26(1)). However, there is no provision on any specific compensation to be awarded by the tribunal in such cases.

    - Under the Equality of Opportunity and Treatment in Employment and Occupation Act, an employee who is a victim of any discriminatory act (including discriminatory dismissals), may apply for damages from the employer for any loss caused directly or indirectly as a result of the contravention (sec. 24 (a) EOTEOA). The law does not foresee any cap on such damages.

    - See also Section 11 of the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, for discriminatory dismissal based on trade union membership or activities. This provision does not set any limits on the amount of compensation to be awarded.

Reinstatement available: Yes

Remarks:
  • - Reinstatement is only available as a remedy for discriminatory dismissal under the Equality of Opportunity and Treatment in Employment and Occupation Act.
    According to sec. 24(2) (b) of the EOTEOA, an person who is aggrieved by a discriminatory act prohibited under that law (which includes discriminatory dismissal) can apply for "order to employ, re-employ or reinstate any person, although the vacancy in question has already been filled and although the employer may be liable to any claim arising from the need to dismiss or terminate the services of any other employee who has been engaged".
    - According to section 11(5) of the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, if the Industrial Relations Tribunal finds that an employee has been dismissed on the grounds on his/her trade union membership or activities, the employee is entitled to reinstatement, along with any remedy deemed appropriate, unless reinstatement is not reasonable practicable.
    - As already indicated, the provision of the CSA on avenues for redress only refers to the determination by a tribunal of "any question (...) as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice" (sec. 26(1)). The CSA is silent as to the remedies available in such cases, and therefore reinstatement does not seem to be available to the employee.

Preliminary mandatory conciliation: No

Remarks:
  • No information found in the CSA or the EOTEOA .

    The TUEOA (which deals with dismissal based on trade union activities/membership) provides for the possibility to settle the dispute by conciliation mediation or arbitration of the parties so agree. In such cases, the Industrial Relations Tribunal would only be competent in the event of failure to obtain settlement of the dispute through conciliation mediation or arbitration (sec. 7).

Competent court(s) / tribunal(s): ordinary courts; labour court

Remarks:
  • - CSA, sec. 26(1): "Any question arising under this Part as to the right of an employee to a severance payment, or as to the amount of severance payment or to determine whether an employee has complied with an employer's notice, shall, in accordance with the regulations made under this Part be referred to and determined by a tribunal".
    - The remedial provision of EOTEOA (which covers discriminatory dismissals) refers to "any court of competent jurisdiction" (sec. 24).

    - However, pursuant to the Registration, Status and Recognition of Trade Unions and Employers' Organisations Act, the Industrial Relations Tribunal (which is a specialized tripartite body) is competent to hear disputes over dismissals of employees on account of their trade union membership of their pursuit of lawful trade unions activities (sec. 11 and 45).

Existing arbitration: Yes

Remarks:
  • No provision found as to the settlement of dismissal disputes through arbitration in the CSA and the EOTEOA.
    However, the TUEOA (which deals with dismissal based on trade union activities/membership) provides for the possibility to settle the dispute by conciliation mediation or arbitration of the parties so agree. In such cases, the Industrial Relations Tribunal would only be competent in the event of failure to obtain settlement of the dispute though conciliation mediation or arbitration (sec. 7).

United States - 2017    

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Compensation for unfair dismissal - free determination by court: No

Remarks:
  • The existence and the extent of compensatory damages for discriminatory dismissals depends on the applicable statutory provisions (see below).

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Discriminatory dismissals complaints filed with the EEOC:
a) Discriminatory dismissals on account of race, color, national origin, sex (including pregnancy), religion, disability, or genetic information and age: back pay (in lieu of reinstatement or for the period from judgment until reinstatement), as well as attorney's fees and other costs. A two-year statute of limitations applies to the recovery of back pay.
b) Compensatory and punitive damages may be awarded by the Court in cases involving intentional discrimination based on a person's race, color, national origin, sex (including pregnancy), religion, disability, or genetic information (but not age).
There are caps on the amount of compensatory and punitive damages a employee can recover which vary according to the size of the employer as follows:
* $50,000 for employers with 15-100 employees;
* $100,000 for employers with 101-200 employees;
* $200,000 for employers with 201-500 employees; and
* $300,000 for employers with more than 500 employees.

c) For age discrimination under the ADEA, the employee is entitled liquidated damages in an amount equal to lost wages in cases of "wilful violation" in addition to reinstatement and back pay.

2) Under the NRLA, available remedies for unlawful dismissal do not include compensation in lieu of reinstatement. Reinstatement is the ordinary remedy but it can be refused by the employee. The employee will always be entitled to back pay which accrues from the time of the discriminatory discharge until such time as the employer makes a valid offer of reinstatement but is reduced by any interim earnings of the worker on a quarterly basis.

3) No compensation in lieu of reinstatement under OSHA for retaliatory discharge. Available remedies only include reinstatement and back pay.
4) Under the FMLA, available remedies include liquidated damages equal to the amount of any compensation lost or denied in addition to reinstatement, back pay, and reasonable attorney's fees and other costs.
5) Under SOX, available remedies include reinstatement, back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney's fees.
6) Under The Jury System Improvements Act of 1978, available remedies for violations of this law include back pay and reinstatement as well as imposition of a civil penalty of up to $5,000 dollars on the employer and reasonable attorney fees.
7) Under the WARN, if the employer does not provide the requisite advance 60 days' notice, the employer must provide a day's wages for each day notice was not given.

Remarks:
  • Specific legal provisions referred to are listed below:
    1- a):
    *CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
    *ADA: [sec. 107], 42 U.S.C. 12117, referring to enforcement provisions of the CRA.
    * GINA: [sec. 207] referring to enforcement provisions of the CRA.
    * AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
    b) Compensatory and punitive damages for unlawful intentional discrimination: introduced by The Civil Rights Act of 1991 amending CRA Title VII and the ADA, see [sec. 1977A], 42 U.S.C. sec. 1981a. See also GINA [sec. 207(a)2)].
    c) Age discrimination: ADEA [sec. 7] 29 U.S.C. sec. 626 (b): liquidated damages in an amount equal to lost wages in cases of "wilful violation".
    2) NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
    3) OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
    4) FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
    5) SOX: [sec. 806] 18 U.S.C § 1514A
    6) JSIA: 28 U.S.C sec. § 1875
    6) WARN: 29 U.S.C. sec. 2104

    Please note that where common law actions based on contract or tort are successful, these will attract the usual remedies available for actions in such suits. Litigants may be awarded equitable relief such as reinstatement and back pay, monetary damages such as reimbursement for lost wages, compensatory damages for pain and suffering and punitive or exemplary damages where the employer is found to have acted maliciously.

Reinstatement available: Yes

Remarks:
  • - Reinstatement is always available under the anti-discrimination laws:
    * CRA, Title VII: [sec. 706(g)(1)] 42 U.S.C. sec. 2000e-5(g)(1)
    * ADA: [sec. 107], 42 U.S.C. 12117
    * GINA: [sec. 207]
    * AEDA: [sec. 7] 29 U.S.C. sec. 626 (b) by reference to the remedial provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sec. 216 (b).
    * NRLA: [sec. 10(c)], 29 U.S.C. sec. 160(c).
    * OSHA: [sec. 11(c)(2)], 29 U.S.C sec. 660(c)(2)
    * FLMA: [sec. 104(a)], 29 U.S.C sec. 2617(a)
    * SOX: [sec. 806] 18 U.S.C § 1514A
    * JSIA: 28 U.S.C sec. § 1875

    However, infringement by the employer of the WARN Act notice provisions does not entail reinstatement: 29 U.S.C. sec. 2104.

    Please note that reinstatement may be awarded where common law actions based on contract or tort are successful.
    In general, the reinstatement is provided as a remedy for breach of a collective agreement or the violation of a constitutional liberty, rather than a remedy for the breach of an individual contract of employment.

Preliminary mandatory conciliation: Yes

Remarks:
  • Although there is no general requirement for mandatory conciliation in unlawful discharge cases, the EEOC, which enforces Title VII, the ADA, the ADEA, and GINA, uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. Only once this process is exhausted, will the EEOC issue a charging party a "right to sue letter" which permits her/him to proceed in federal court on the claim ([CRA Title VII sec. 706], 42 U.S.C. sec. 2000e-5).
    There is no preliminary mandatory conciliation before the NLRB, however cases can always be settled at any point during the investigation or the litigation process through private settlement or board settlement.

Competent court(s) / tribunal(s): ordinary courts; administrative body

Remarks:
  • 1) the Equal Employment Opportunity Commission (EEOC), receives and investigates complaints of discrimination. Where investigation reveals reasonable cause to believe that a complaint is true, the EEOC uses "informal methods of conference, conciliation, and persuasion" to eliminate the unlawful employment practice. If no settlement is reached, the EEOC may either file a civil action in federal court or notify the complainant, who may, within 90 days of such notice, proceed to federal court ([CRA, Title VII, sec. 706], 42 U.S.C. sec. 2000e-5).

    2)The National Labor Relations Board (the NLRB or the Board) receives and investigates complaints filed by unions, employers and workers. If, upon investigation of the charge, a threshold of merit is found, the General Counsel may issue complaint. A hearing is held pursuant to the complaint before an Administrative Law Judge (ALJ) regarding the allegations of the complaint, and the ALJ provides a recommended decision and order in the matter. The decision of the ALJ becomes final unless exceptions are filed by either of the parties. If exceptions are filed, the ALJ's decision is subject to review by the Board which issues a final order in the matter ([NLRA, sec. 10(c)],29 U.S.C sec. 160(c)). A person aggrieved by a final order of the Board may obtain review of the order in a United States court of appeals in the appropriate circuit or in the United States Court of Appeals for the District of Columbia ([NLRA, sec. 10(f)], 29 U.S.C sec. 160(f)).

    3) Under the OSHA complaints shall be made to the Secretary of Labour who will investigate it. if merit is found, he or she will bring an action in federal court against the employer ([sec. 11(c)(2)], 29 U.S.C, sec. 660(c)(2)).

    4) Under SOX, an employee who believes s/he has been discharged in violation of this subsection may file a complaint with the Secretary of Labor and, if no final decision is made on the complaint within 180 days, may bring an action in federal district court assuming the delay was not due to bad faith of the employee (18 U.S.C. sec. 1514A (b)(1))

    5) Complaints alleging violation of the WARN Act are heard by the United States district courts (29 U.S.C sec. 2104)

    In addition, the employee can bring common law actions based on contract or tort.

Existing arbitration: Yes

Remarks:
  • For employees represented by a union, the collective-bargaining agreement setting forth terms and conditions of employment almost always contains a grievance and arbitration clause. An employee who believes s/he has been discharged in violation of the collective-bargaining agreement may file a grievance with the union and the union may proceed to arbitration on behalf of the employee if the matter is not resolved through the grievance process.

Length of procedure: 120 day(s) (statutory)

Remarks:
  • - Under CRA Title VII, the EEOC is charged to reach a determination in regard to charges filed "as promptly as possible and, so far as practicable, not later than 120 days from the filing of the charge" ([sec. 706(b)], 42 U.S.C.A. Sec. 2000e-5 (b)). However, if the Commission issues the charging party a "right to sue" letter he or she may proceed to federal district court within 90 days of such notice and so the length of the procedure is dependent on whether the individual proceeds to federal court.

    - Under the NLRA, there is no statutory time frame for the conclusion of the NLRB's investigative and adjudicatory process. The duration of the process depends in part on whether exceptions are filed with the Board to the decision of the ALJ and whether final orders of the Board in such cases are appealed to federal court.

Venezuela, Bolivarian Republic of - 2019    

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Compensation for unfair dismissal - free determination by court: No

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
Article 142 (c) OLL provides that “in case of termination of the working relationship, whatever the cause is, benefits will be calculated on the basis of 30 days per year of work or fraction over six months calculated by reference to the last salary”. However the application of this provision raises some difficulties in practice. Article 6 of the Immunity Decree No. 3.708 establishes that in case of unjustified dismissal the worker will be able to opt for reinstatement. Article 9 provides that the employers who does will be sanctioned on the basis of Article 531 (violation of worker’s immobility), Article 532 (disregard of a public worker’s order) or Article 538 (causes of arrest - including disregarding the obligation of reinstatement) OLL.

Reinstatement available: Yes

Remarks:
  • Reinstatement remains always an option in cases of dismissal. See e.g. Article 90 OLL, which provides that “The judge will have to orally decide on the substance and declare if there should or not be reinstatement and payment of back wages”.
    See also the Organic Labour Procedure Law (OLPL), Art. 187. Moreover, under Article 191 OLPL, employers with less than 10 employees are not obliged to reinstatement.
    HOWEVER, the above mentioned rules do not apply to workers covered by the Immunity Decree 3.708, namely: all workers covered by the Labour Code except managers and seasonal workers. Under the immunlity decree, prior to any dismissal, the employer must request authorization from the Labour Inspector who will only grant it if there is a just cause. If the employer fails to do so or the dismissal is consider unjustified, the Labour Inspect will order reinstatement.
    ____________
    In Spanish:
    Decisión del procedimiento - Artículo 90 OLL:
    "El Juez o Jueza de Juicio deberá decidir de manera oral sobre el fondo de la causa y declarar con o sin lugar la solicitud de reenganche y el pago de los salarios caídos."
    Artículo 187 OLPL: "Cuando el patrono despida a uno o mas trabajadores deberá participarlo al Juez de Sustanciación, Mediación y Ejecución de su jurisdicción, indicando las causas que justifiquen el despido, dentro de los cinco (5) días hábiles siguientes; de no hacerla se le tendrá por confeso, en el reconocimiento que el despido lo hizo sin justa causa. (...)"
    Artículo 191 OLPL:"Los patronos que ocupen menos de diez (10) trabajadores, no estarán obligados al reenganche del trabajador despedido, pero sí al pago de las prestaciones e indemnizaciones a que refiere la Ley Orgánica del Trabajo, cuando el despido obedezca a una justa causa que en todo caso será objeto de calificación por el Tribunal competente."

Preliminary mandatory conciliation: Yes

Remarks:
  • Art. 422 OLL determines as a part of the procedure in case of dismissal of a worker protected by employment stability - i.e. most of them - a conciliation phase.
    Art. 133 of OLPL: preliminary mandatory conciliation before the Judge.
    ______________
    In Spanish:
    Artículo 422 OLL: "Cuando un patrono o patrona pretenda despedir por causa justificada a un trabajador o trabajadora investido o investida de fuero sindical o inamovilidad laboral, trasladarlo o trasladarla de su puesto de trabajo o modificar sus condiciones laborales, deberá solicitar la autorización correspondiente al Inspector o Inspectora del Trabajo, dentro de los treinta días siguientes a la fecha en que el trabajador o trabajadora cometió la falta alegada para justificar el despido, o alegada como causa del traslado o de la modificación de condiciones de trabajo, mediante el siguiente procedimiento: (...)"
    Art. Artículo 133 OLPL: "En la audiencia preliminar el Juez de Sustanciación, Mediación y Ejecución deberá, personalmente, mediar y conciliar las posiciones de las partes, tratando con la mayor diligencia que éstas pongan fin a la controversia, e través de los medios de auto composición procesal. Si esta mediación es positiva, el Juez dará por concluido el proceso, mediante sentencia en forma oral, que dictará de inmediato, homologando el acuerdo de las partes, la cual reducirá en acta y tendrá efecto de cosa juzgada."

Competent court(s) / tribunal(s): labour court

Remarks:
  • Art. 13 OLPL: labour jurisdiction is exercised by Labour Courts, in conformity with this law.
    _____________
    In Spanish:
    Artículo 13 OLPL: "La jurisdicción laboral se ejerce por los Tribunales del Trabajo, de conformidad con las disposiciones de esta Ley."

Existing arbitration: Yes

Remarks:
  • The OLPL provides for the possibility to refer the dispute to arbitration in the course of the legal proceedings before the judge.
    Art. 133 OLPL and 135-149 OLPL.

    NOT APPLICABLE to workers covered by the Immunity Decree.