Colombia

Sources of regulation

The main source of labour law in Colombia is the Labour Code (LC), which entered into force on 1 January 1951. Act No. 50 of 28 December 1990 amends some provisions of this Code. Art. 25 of the Constitution of Colombia establishes the right to work. Art. 55 guarantees the right to collective bargaining for the regulation of labour relations.

Scope of legislation

The LC regulates the relations concerning the right of individuals to work and the collective right to work, in both the official and private spheres. Public employees, workers in the railway services and other public servants are excluded from its scope of application.

Contracts of employment

The contract of employment is one in which a person undertakes to hire his or her services to some other physical or juridical person, under the continuous authority of, or subordinate to, such a person, for remuneration (sec. 22, LC). The contract of employment may be oral or in writing (sec. 37, LC).

Contracts of employment may be made for a fixed period, for the time required for the completion of a certain piece of work, for an indefinite period or for periodical, casual or temporary work (sec. 45, LC).

Contracts for a fixed period must state that fact in writing. The duration of such contracts must not exceed three years, but they may be renewed indefinitely (sec. 46, LC; replaced by sec. 3, Act 50/90).

The probationary period is the initial period of the contract of employment for the purpose of enabling the employer to estimate the employee’s aptitude and enabling the employee to decide whether the conditions of work are satisfactory (sec. 76, LC). The maximum duration of the probationary period is two months, at any point during which the contract may be terminated unilaterally without prior notice (sec. 80, LC).

Termination of employment

The contract of employment may be terminated, other than at the initiative of the employer, in the following instances (sec. 61, LC; replaced by sec. 6, Legislative Decree (LD) 2351/65):

• on the death of the employee;
• by mutual consent;
• on the expiry of the duration agreed upon or presumed;
• on completion of the work or service agreed upon;
• by the liquidation or permanent closing of the undertaking or establishment;
• where work is suspended by the employer for more than 120 days;
• by decision of the competent authority;
• by unilateral decision; and
• when the worker does not return to work, even when a suspension of work has beenlifted.

Dismissal

The following are considered valid reasons for termination (sec. 62, LC; replaced by sec. 7, LD 2351/65):

• the employer has been deceived by the employee by the production of false certificates for the purpose of obtaining employment;
• the employee is guilty in the course of his or her work of any act of violence, insult, assault, or serious act of indiscipline against the employer or any member of his or her family, the managerial or supervisory staff or fellow workers;
• the employee is guilty, outside his or her work, of any grave act of violence, insult, or assault against the employer, or any member of his or her family, or any of his or her agents or partners, supervisory staff or watchkeepers;
• the employee has wilfully caused material damage to the buildings, works, machinery, raw materials, tools or other objects used in the work, or is guilty of serious negligence endangering the safety of persons or property;
• the employee commits any immoral or unlawful act in any workshop, establishment or workplace in the course of his or her work;
• the employee is guilty of any serious breach of the special obligations or prohibitions concerning employees;
• the employee is placed in custody awaiting trial for more than 30 days, unless he or she is subsequently acquitted, or if the employee is sentenced to a term of imprisonment of more than eight days, or less if the reason for such term of imprisonment is in itself sufficient cause for the termination of the contract;
• the worker reveals any technical or trade secrets, or discloses facts of a confidential nature, thereby causing prejudice to the undertaking;
• low output by the worker;
• systematic non-compliance with legal obligations or obligations incurred under agreements;
• vices of the worker which disrupt discipline in the workplace;
• refusal to accept preventive, protective or remedial measures;
• inaptitude of the worker to carry out the work entrusted to him or her;
• collection of retirement pension or disability benefit while in the service of the undertaking; or
• contagious or chronic disease not caused by the nature of the job, or any disease or injury which incapacitates the worker, preventing him or her from working, and for which a cure could not be found for 180 days.

In the above-mentioned cases the employer must give notice of not less than 15 calendar days, and the contract may be terminated without compensation.

“Trade union immunity” describes the protection enjoyed by some workers against dismissal without a valid reason that has been previously substantiated by the labour magistrate. The following employees are protected by this form of immunity:

• founders and workers who join the union before it has been put on the trade union register, from the day of the formation of the union and up to two months after placement on the register, up to a maximum period of six months;
• the members of the governing board, and their deputies, of all trade unions, federations or confederations of unions, comprised of five principals and five alternates, during their terms in office and six months following the expiry of their mandates; and
• the members of the statutory grievance committee, during their terms in office and six months following the expiry of their mandates (there can be no more than one such committee in any one undertaking).

The employer may dismiss a worker without a valid reason provided that he or she pays compensation for damages. He or she should give the same period of notice prescribed for the termination of the employment relationship without a valid reason, which is set at a minimum of 30 days (secs. 47 and 64, LC).

Collective dismissal is regarded as termination of employment when, within a period of six months, certain proportions of an enterprise’s employees are dismissed, as follows (sec. 67(4), Act 50/90):

• 30 per cent of the total number of workers in undertakings employing between ten and 50 workers;
• 20 per cent of workers in undertakings employing between 50 and 100 workers;
• 15 per cent of workers in undertakings employing between 100 and 200 workers;
• 9 per cent of workers in undertakings employing between 200 and 500 workers;
• 7 per cent of workers employed in undertakings employing between 500 and 1,000 workers; and
• 5 per cent of workers in undertakings employing more than 1,000 workers.

Notice and prior procedural safeguards

The letter of dismissal must state exact and firm reasons for the termination of the contract. No prior hearing is required.[1]

In order to be able to dismiss a female worker during pregnancy or for three months after confinement, authorization is necessary from the labour inspectorate or, in the latter’s absence, the mayor of the municipality (sec. 240, LC).

In the case of collective dismissals, the employer should request prior authorization from the Ministry of Labour and Social Security, and he or she should also inform the workers concerned in writing. The Ministry of Labour should decide on the matter within two months (sec. 66, Act 50/90).

Severance pay

In the event of unilateral termination of the contract of employment in which the employer fails to provide a valid reason, he or she is required to pay the worker compensation (sec. 64, LC; replaced by sec. 6, Act 50/90).

In contracts of specified duration the compensation is equivalent to the amount of wages corresponding to the time left for the completion of the period prescribed by the contract. When the time is determined by the duration of the task or work for which services had been engaged, the compensation should correspond to no less than 15 days’ wages.

In contracts of indeterminate duration, compensation should be paid as follows:

• if the worker has been employed for no more than one year, 45 days’ wages;
• for between one and five years of service, 15 days’ wages should be added to the 45 basic days for each year of service following the first year;
• for between five and ten years of service, 20 days’ wages should be added to the 45 basic days for each year of service following the first year; and
• if the worker has been employed for ten or more years, 40 days’ wages should be added to the 45 basic days for each year of service following the first year.

When an employment contract is terminated, the employer is obliged to pay the worker one month’s wages for each year of service and proportionally for parts thereof, unless the contract was terminated for any of the following reasons (secs. 249 and 250, LC):

• an unlawful act against the employer or any member of his or her family, or the management staff of the undertaking;
• any material damage wilfully caused to the buildings, works, machinery, raw materials, tools or other objects used in the work; or
• if the worker reveals any technical or trade secrets or discloses facts of a confidential nature, thereby causing prejudice to the undertaking.

In cases of collective dismissal the employer must pay the workers concerned the legally prescribed compensation which would be due to them if the dismissal had been carried out without a valid reason. If the undertaking has taxable liquid assets of less than 1,000 minimum monthly wages, the amount of compensation is equivalent to 50 per cent of that sum (sec. 67, Act 50/90).

Avenues for redress

In the event of a dispute between the parties, a judicial appeal may be brought before the labour courts. The employer bears the burden of proof.

If it is proved that a worker had been dismissed without the observance of the regulations on trade union immunity, the decision on dismissal must be reversed and the employer will be instructed to pay the worker, by way of compensation, the wages due because of dismissal and to reinstate him or her to his or her post of employment (secs. 405, 406 and 408, LC).

Any female worker who is dismissed on account of pregnancy or childbirth without the permission of the authorities is entitled to receive compensation amounting to 60 days’ wages, apart from the benefits to which she would already have been entitled under the contract of employment, and also to the payment of 12 weeks’ wages during confinement (secs. 239, 240 and 241, LC).

Moreover, in the event of dismissal of a worker because of maternity protection, reinstatement will be ordered if it is shown in the proceedings that the dismissal is not based on a valid reason.[2]

Further Information

• ILO NATLEX Colombia
• Vega Ruiz Marìa Luz (ed.). « La reforma laboral en América Latina : 15 años después ». 2005. Regional Office in Latin America and the Caribbean.

[1] Ruling of 12 Nov. 1996 of the Labour Division, Court of Cassation.

[2] Ruling of 26 Oct. 1982 of the Labour Division, Court of Cassation.