ARTICLE
Substantive Labor Code
dismiss
employer CONTRACT
UNILATERAL terminate
worker
Law
pregnancy
Establish
ARTICLE
Substantive Labor Code
dismiss
employer CONTRACT
UNILATERAL terminate
worker
Law
pregnancy
Establish
Aspectos Legales ANGIE NATALI RODRIGUEZ CARDOZO ANDRÉS CAMILO GONZÁLEZ RODRÍGUEZ Ucompensar 2024 CASE #1 • José works in the business area of a Company and has lower sales, compared to all his partners. How should the Company proceed to avoid dismissal without cause? • Labour Code: • Articles 62 to 64: Establish the grounds for justified dismissal and the procedures that must be followed in the event of dismissal. • ARTICLE 62. TERMINATION OF THE CONTRACT FOR JUST CAUSE. <Article modified by article 7. of Decree 2351 of 1965. The following are just causes to unilaterally terminate the employment contract: • 9. Poor performance at work in relation to the worker's capacity and average performance in similar tasks, when it is not corrected within a reasonable period of time despite the employer's request. • In the cases of paragraphs 9 to 15 of this article, for the termination of the contract, the {employer} must give notice to the worker in advance of no less than fifteen (15) days. ARTICLE 64. UNILATERAL TERMINATION OF THE EMPLOYMENT CONTRACT WITHOUT JUST CAUSE. <Article modified by article 28 of Law 789 of 2002. The new text is as follows:> Every employment contract involves the resolutory condition for non-compliance with what was agreed, with compensation for damages payable by the responsible party. This compensation includes lost profits and consequential damage. • Law 50 of 1990: Article 64 of the Substantive Labor Code, modified by article 8 of Decree-Law 2351 of 1965, will read as follows: • Article 64. Unilateral termination of the contract without just cause. • 2. In the event of unilateral termination of the employment contract without proven just cause by the employer or if this gives rise to unilateral termination by the worker for any of the just causes contemplated in the law, the former will owe the latter a compensation in the terms indicated below. http://www.secretariasenado.gov.co/senado/basedoc/codigo_sustantivo_trabajo_pr001.html#62 • Decree 2351 of 1965: Regulates the Substantive Labor Code regarding dismissal without just cause, establishing the cases in which compensation to the worker is appropriate. • Rulings of the Constitutional Court: The jurisprudence of the Constitutional Court has reiterated the importance of respecting the labor rights of workers and has established criteria to determine the just cause for a dismissal. CASE #2 • Second Case. Laura is pregnant and works for the Company “Llamadas Effectivees”. The employer is notified of Laura's pregnancy. Last Friday, in the middle of an argument, Laura attacked a co-worker, throwing coffee at her and hitting her with her hands. The next day, the head of human resources gives you the contract termination letter with just cause. Laura seeks your advice. What would you say? • Law 1468 of 2011 establishes that during pregnancy and up to three months after childbirth, women enjoy enhanced job stability, which means that they cannot be fired without just cause. However, it is also important to keep in mind that the law contemplates exceptions in cases of dismissal for duly proven just cause. • Reinforced job stability: Law 1468 of 2011 establishes in its article 239 that during pregnancy and up to three months after childbirth, women enjoy reinforced job stability and cannot be fired without just cause. • Protection against discrimination: Article 43 of the Political Constitution of Colombia establishes that all people are equal before the law and prohibits discrimination based on sex, among others. https://www.constitucioncolombia.com/titulo-2/capitulo-2/articulo-43 Protection during pregnancy: Article 239 of the Substantive Labor Code establishes that during pregnancy and up to three months after childbirth, a woman has the right to paid leave and to keep her job and salary, without being able to be fired. • ARTICLE 239. PROHIBITION OF DISMISSAL. <Article modified by article 2 of Law 1822 of 2017. The new text is as follows:> • <Conditionally enforceable numeral> No worker may be dismissed for reasons of pregnancy or breastfeeding without prior authorization from the Ministry of Labor supporting just cause. http://www.secretariasenado.gov.co/senado/basedoc/codigo_sustantivo_trabajo_pr008.html#235 • Article 35. Article 239 of the Substantive Labor Code will read as follows: Article 239. Prohibition of dismissal. • 1. No worker can be fired due to pregnancy or breastfeeding. • 2. It is presumed that the dismissal has been carried out due to pregnancy or breastfeeding, when it has taken place within the period of pregnancy or within three months after childbirth, and without authorization from the authorities referred to in the following article. • 3. The worker dismissed without authorization from the authority has the right to payment of compensation equivalent to sixty (60) days' wages, outside of the compensation and benefits that may apply in accordance with the employment contract and, in addition, to the payment of the twelve (12) weeks of paid rest referred to in this chapter, if you have not taken it. • Dismissal for just cause: Article 62 of the Substantive Labor Code establishes the causes for which an employer can dismiss a worker for just cause, such as serious non-compliance with their labor obligations. https://www.alcaldiabogota.gov.co/sisjur/normas/Norma1.jsp?i=281