Sources of regulation
In accordance with the prevailing trend in the region, art.
8(11) of the Dominican Republic’s National Constitution establishes
the freedom of work, stating that “the law may, as required by the general
interest, establish ... all provisions for state protection and assistance
for workers that may be considered necessary ...”.
The Labour Code promulgated by Act No. 16-92 of 29 May
1992 (LC) and regulations for its application (Decree No. 258-93 of 1 October
1993) (LR) are the primary sources of labour law. Collective agreements,
case law and decisions of the Ministry of Labour on the application of
the LC supplement these sources and represent a complementary source of
undeniable utility. Resolution No. 32/93 on the termination of contracts
of employment because of plant closure or staff reduction serves as an
example.
Scope of legislation
Pursuant to sec. 5 of the LC, the following categories
of workers are excluded from its scope of application: freelance professionals,
persons working on commission and brokers, commercial agents and representatives,
tenants and sharecroppers.
According to sec. 4, contracts relating to domestic
service, agricultural employment, work at home and employment in transport,
sales, commercial travelling and similar employment, as well as contracts
relating to disabled persons and seafarers’ articles of agreement, are
special types of contracts.
Contracts of employment
The term “contract of employment” denotes a contract by
which a person agrees, in return for remuneration, to undertake personal
services for another, under the constant supervision and immediate direction
of that person (sec. 1, LC).
The existence of a contract of employment is to be presumed
in any personal labour relations, except where there is proof to the contrary
(sec. 15, LC). A contract of employment is presumed to be for an
indefinite period (sec. 34, LC); contracts entered into for a given
time which are concluded for the purpose of evading the provisions of the
LC will be deemed to be for an indefinite period (sec. 35, LC).
Contracts may be for an indefinite period: where the work
is of a permanent character, with the objective of fulfilling the normal,
ongoing and regular requirements of the enterprise (secs. 26 and 27,
LC). Contracts may be for a specific period depending on the nature of
the services, the temporary replacement of a worker and/or if such a contract
suits the interests of the worker. They may also be for a specific task
or service: intended to increase production or to respond to exceptional
needs or incidental circumstances in the enterprise (sec. 32, LC).
Seasonal
contracts for work in the sugar industry (sec. 30, LC) are considered
contracts for an indefinite period subject to the special rules established
for such contracts in the event of rescission. Periods of service corresponding
to different harvests or consecutive seasons, for which services are provided,
may be cumulative for the purposes of determining the worker’s rights.
Termination of employment
Pursuant to sec. 68 of the LC, the contract ends without
liability for the parties by mutual consent, upon performance of
the task or service, in the event of unforeseen events or force majeure (in
the case of the latter, if insured, the employer must, upon receipt of
compensation through insurance, reconstitute the enterprise in accordance
with the amount received or otherwise compensate the workers equitably).
Compensation paid to workers may not exceed the amount of severance pay
(sec. 74, LC and sec. 9, LR). In order for such termination
to be valid, it must be effected before the Department of Labour or the
competent local authority, or before a notary (sec. 71, LC).
The contract ends with liability for the parties (sec.
69, LC) by rescission (one party giving notice has the right to terminate
a contract for a definite period without cause) and by the worker’s resignation.
Secs. 96 et seq. of the LC establish the right of the worker to justifiably terminate
employment by resignation in the following circumstances:
- where
the employer misled the worker when the contract was concluded;
- non-payment
of remuneration in full;
- dishonesty
or immorality on the part of the employer;
- improper
use of working tools or implements intended for the use of the worker;
- the
requirement for the worker to carry out work other than that which was
agreed to in the contract;
- requirement
to render service in conditions which would oblige the worker to change
his or her place of residence;
- contagious
disease contracted by the employer if the worker must remain in immediate
contact with him or her;
- health
and safety hazards to the worker;
- imprudent
or negligent acts committed by the employer which compromise the safety
of the workshop, office or workplace;
- the
employer’s failure to carry out any of his or her legal obligations (sec.
97, LC); and
- resignation
without a reason.
Dismissal
Dismissal of the worker may be without cause (desahucio)
or it may be justified (sec. 87, LC). Under sec. 88 of the
LC, the employer does not incur any liability if he or she dismisses the
worker because the worker:
- has
misled the employer by claiming skills or knowledge essential for the
work and which he or she does not possess, or providing personal references
or testimonials which are subsequently proved false;
- performs
work in a manner showing his or her incapacity or inefficiency (a ground
which lapses three months after commencement of employment);
- is
guilty of dishonest and immoral acts during working hours or of acts
of attempted violence or abuse or ill-treatment of his or her employer
or
the employer’s dependants;
- commits
any of the acts listed in the preceding clause against any fellow workers
in such a way as to cause disorder in the workplace;
- outside
of working hours, commits any of the acts referred to in the third clause
above against the employer or his or her dependants, or the managers
of the enterprise;
- wilfully
causes material damage, or attempts such damage in the course of his
or her work, to the buildings, installations, machinery, tools, raw materials,
products or other objects related to the work;
- unintentionally,
through negligence or without due care, causes serious damage as mentioned
in the preceding clause;
- commits
immoral acts in the workshop, establishment or workplace;
- reveals
manufacturing secrets or information of a confidential nature to the
prejudice of the enterprise;
- compromises,
through imprudence of inexcusable carelessness, the safety of the workplace,
office or other place in the enterprise or the persons therein;
- is
absent from work for two consecutive days or two days in the same month
without permission, or without submitting a good reason within the prescribed
time limit;
- is
absent, without giving a valid reason, while he or she is responsible
for work or machinery which, if inactive or stopped, inevitably jeopardizes
the operations of the enterprise;
- leaves
the workplace during working hours without permission of the employer
or his or her representative, without having previously given any valid
reason
for his or her absence;
- disobeys
the employer or his or her representatives in the discharge of duties
under the contract;
- refuses
to adopt preventive measures or to follow the procedures required by
law, the competent authorities or employer, in order to avoid accidents
or illness;
- violates
any of the prohibitions laid down in sec. 45 of the LC on the duties
of the worker;
- has
been sentenced to imprisonment by a decision not subject to appeal; or
- shows
lack of dedication to the work for which he or she has been contracted
or any other serious shortcomings in respect of the obligations arising
from the employment contract.
Under the LC, the termination of employment of workers
protected by trade union immunity has no effect (sec. 392, LC).
The following workers enjoy trade union immunity and therefore
may not be dismissed (secs. 390 and 393, LC):
- up
to a total of 20 workers who are members of trade unions which are in
the process of being established (up to three months after registration);
- up
to a total of five workers who are members of the governing body of a
trade union, where the enterprise employs not more than 200 workers; up
to a
total of eight such workers, where the enterprise employs between 200
and 400 workers; and up to a total of ten such workers, where the enterprise
employs more than 400 workers (up to eight months after they have ceased
their functions);
- up
to a total of three workers’ representatives during the negotiation of
a collective agreement (up to eight months after they have ceased holding
office); and
- alternates
to any of the workers mentioned above. However, it is worth pointing
out that, where a worker is replaced by another in the exercise of his
or her
trade union functions, the original worker will no longer benefit from
immunity.
The trade union or its promoters must inform the employer,
the Department of Labour or the competent local authority in writing of
any proposal to establish a new trade union and of any appointment or election
which has taken place. The duration of immunity begins on the date of such
notification (sec. 393(4), LC).
According to the provisions of sec. 394 of the LC,
immunity may cease for the worker who participates in the following acts:
- coercion
or physical or moral violence, or any other act which is aimed at promoting
disorder or introducing a violent element to a strike;
- curtailing
freedom to work, through means or acts which prevent workers from going
about their work or fulfilling their obligations;
- taking
action against material goods situated in the enterprise;
- inciting
or participating in acts which cause destruction to materials, tools
or work products;
- inciting,
leading or participating in the deliberate reduction of output of the
enterprise;
- abduction
of persons;
- inciting
or participating in the destruction of public or private installations;
or
- committing
a crime or offence punishable by law, or an act against state security
or in violation of the national Constitution.
The LC establishes some maternity entitlements. It invalidates
termination of employment by the employer during the worker’s pregnancy
and up to three months after giving birth. In such cases the worker must
notify the employer of her pregnancy by any reliable means, indicating
the expected date of birth (sec. 232, LC). A woman may not be dismissed
on account of pregnancy, and dismissal for such a reason will be considered
null and void. In this regard the dismissal of a pregnant woman, during
the term of pregnancy or within six months following the birth, must be
brought before the Department of Labour or the competent local authority
acting on its behalf, in order to determine whether the dismissal was as
a result of pregnancy or confinement (sec. 233, LC).
Notice and prior procedural safeguards
An employer seeking to dismiss workers for a valid reason
must do so within 15 days of the occurrence of the reason for dismissal
(sec. 90, LC).
Within 48 hours following dismissal, the employer must
notify the worker, the Department of Labour or the competent local authority
of the reasons for it, and there may not be any subsequent modification
of the reasons given in the communication (secs. 91 and 92, LC).
Dismissal which is not communicated to the labour authority is considered
unjustified (sec. 93, LC).
Dismissal or resignation must be communicated personally
or by letter deposited with the labour authority, which is to keep a register
of these communications (sec. 13, LR). The party who initiates termination
should give notice to the other party, at least seven days in advance,
if the length of service is between three and six months; at least 14 days
in advance, if the length of service is between six months and a year;
and at least 25 days’ notice after a year of continuous service (sec.
76, LC). Failure to give notice or insufficient notice will require
the payment of compensation equivalent to the remuneration which would
be owing to the worker for the corresponding period of time (sec. 79,
LC).
Dismissal initiated by the employer must be communicated
in writing to the worker. In cases of dismissal on notice, the worker will
have the right during the notice period to leave of two half-days each
week with full pay (sec. 78, LC).
Severance pay
In the event of termination the employer must pay a severance
allowance (sec. 80, LC) amounting to:
- six
days’ regular wages if the length of service was between three and six
continuous months;
- 13
days’ regular wages if the length of service was between six months and
one year;
- 21
days’ regular wages per year of service if the length of service was
continuous between one and five years; and
- 23
days’ regular wages per year of service if the length of service was
over five years.
Any fraction of a year of over three months must be paid
in accordance with the first two rules above.
The calculation of the severance allowance corresponding
to the number of years during which the worker’s contract has been in force
prior to the promulgation of LC must be made on the basis of a fortnight’s
regular wages for each year of service (sec. 80, LC). Sec. 14 of
the LR sets out formulas to determine wages for liquidation and severance
allowance.
There also exists economic assistance, varying between
five and 15 days of regular wages, if the contract of employment is terminated
as a result of:
- death
or physical or mental incapacity of the employer or worker;
- physical
incapacitation of the worker preventing performance of the work for which
the worker was engaged;
- illness
or justified absence on the part of the worker which might impede job
performance for a total period of a year;
- depletion
of raw material extracted in a mining industry; or
- bankruptcy
of the enterprise, in the event that the enterprise ceases all operation
(sec. 83, LC).
Retired workers are entitled to compensation equivalent
to the benefits granted upon termination, if the pension is granted by
the Dominican Social Insurance Institution (sec. 83, LC),
Avenues for redress
If, as a result of dismissal, a dispute arises and the
employer gives proof of the alleged ground, the court must declare the
dismissal to be justified (sec. 94, LC). If the alleged ground for
dismissal is not proven, the court must declare it unjustified and the
contract as having been broken through the fault of the employer. The employer
should pay, if the contract is for an indefinite period, the amounts corresponding
to the period of notice and severance allowance. If it is a contract for
a specific task or service, the amount owed is the greater of the total
remuneration which would be due up to the expiry of the agreed term or
up to the conclusion of the services or work agreed upon, and the amount
which the worker would have received in the event of termination, unless
the parties have established a higher amount. To this must be added an
amount equal to the wages which the worker would have received between
the date of the claim and the date of the final decision; this may not
exceed six months’ wages (sec. 95, LC).
Further Information
- ILO NATLEX Domincan Republic
- Vega Ruiz Marìa Luz (ed.). « La reforma laboral en América Latina : 15 años después ». 2005. Regional Office in Latin America and the Caribbean.
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