Keys to Termination of Employment without Just Cause

The employment contract may be terminated for different causes contemplated in Article 61 of the Substantive Labor Code. Article 61 of the Substantive Labor Code.The employment contract may be terminated for different reasons contemplated in Article 61 of the Substantive Labor Code, in which we can find: termination by mutual agreement, expiration of the agreed fixed term, completion of the work or labor contracted and by unilateral decision of the employer, either the termination of the employment contract without just cause or with just cause. with just cause.

With respect to this last form of termination of the contract, it is evident that the employer has the power to unilaterally terminate the employment relationship without a proven just cause, establishing the law the obligation to pay the employee an indemnity for unfair dismissal in accordance with the terms set forth in article 64 of the Substantive Labor Code.

In this regard, the High Courts have reiterated that the employment contract is entered into for the purpose of establishing an employment relationship, a contract that is born to legal life by the agreement between the parties, reason for which there is no impediment whatsoever with respect to the operation of the termination condition on such agreement, since its prohibition would be contrary to the autonomy of the will, not being viable the petrification of the contractual ties, without prejudice to the assumption of the economic liabilities that such event may generate with respect to the party affected by such conduct.

For your company: All about termination of employment contracts

Thus, the same law has granted the employer the power to terminate the employment contract without just cause, as long as the recognition and payment of the aforementioned indemnity is provided. The Supreme Court of Justice in Ruling SL 3424 of 2018 indicated:

"(...) the Fundamental Charter recognizes the right to freedom of enterprise, which consists of the power of every person to develop an economic activity and to organize at his discretion all matters inherent to it, including the management of labor relations, if he hires the services of natural persons for this purpose.

That is to say, contrary to what the censorship alleges, employment stability does not imply a criterion of indissolubility of the employment relationship, but rather of continuity of the same if the conditions for it are met. In other words, this legal concept has to do with the employee's certain expectation of keeping his job as long as the circumstances that gave rise to it persist and he complies with his obligations. However, such guarantee is neither absolute nor does it imply the indefinite prerogative to remain in a job (CC C-1341-2000), to the extent that this would go against the principle of autonomy of the will of one or both parties to terminate the contractual relationship".

However, although the employer has the power to terminate the employment contracts of its employees without just cause, there are certain situations that may constitute limitations to this power.

Limitations on the termination of employment without just cause

One of the main limitations for the employer to exercise its power to terminate contracts unilaterally and without just cause are those cases in which the workers are entitled to a reinforced labor stability, that is, the so-called "fueros". reinforced labor stability, i.e., the so-called "fueros".

For this purpose, it should be recalled that the right to enhanced stability consists of: (i) the right to keep the job; (ii) not to be dismissed due to the situation of vulnerability; (iii) to remain in the job until required and provided that an objective cause is not configured that leads to their dismissal; and (iv) to the competent labor authority to authorize the dismissal, with the prior verification of the structuring of the objective cause not related to the situation of vulnerability of the worker, which is alleged to terminate the employment contract, under penalty that, if not established, the dismissal will be declared ineffective (Decision T-320 of 2016, Constitutional Court).

On the other hand, it should not be overlooked that there is a limit on the number of dismissals without just cause that the employer may carry out in a period of 6 months, since, if the employer wishes to exceed this limit, it will be appropriate to request prior authorization from the Ministry of Labor, in accordance with the terms of Article 67 of Law 50 of 1990. article 67 of Law 50 of 1990.

Employment stability due to maternity leave

In accordance with the provisions of Article 239 of the Substantive Labor Code, no female worker may be dismissed for reasons of pregnancy or breastfeeding. Likewise, it will be presumed that the dismissal has been made due to pregnancy or breastfeeding when it has taken place during the pregnancy period and/or within three months after the birth.

In this regard, the constitutional jurisprudence has indicated that the reinforced labor stability of pregnant and nursing women applies regardless of the type of labor applies regardless of the type of employment relationship that exists between the parties. In other words, it is irrelevant whether it is a fixed-term employment contract, an indefinite-term contract, a contract for a specific work or job, or a contract through a worker cooperative, since the purpose of this provision is to protect the rights of the pregnant mother, regardless of the employment alternative in which she works.

Reinforced labor stability due to union privilege

Article 405 of the Substantive Labor Code establishes that it is called "....union privilegeArticle 405 of the Labor Code establishes that "union privilege" is the guarantee enjoyed by certain workers -listed in Article 406 ibidem- of not being dismissed, not having their conditions worsened, and not being transferred to other establishments of the same company or to a different municipality, without just cause previously qualified by the labor judge.

In this sense, workers who enjoy a union privilege may not be dismissed without just cause. In the event of just cause, such cause must be endorsed by an ordinary labor judge.

Enhanced job stability for disabled workers

The Article 26 of Law 361 of 1997 states that in no case may the disability of a person be a reason to hinder an employment relationship, unless such disability is clearly demonstrated as incompatible and insurmountable with the position to be performed. Likewise, no person with a disability may be dismissed or have his or her contract terminated because of such disability, unless authorized by the Ministry of Labor.

Thus, an employee who enjoys a health health protectioncannot be dismissed without just cause. For this reason, if there is a just cause or if the position is absolutely incompatible with the disability situation, authorization from the Ministry of Labor will be required to proceed with the dismissal.

Now, it must be taken into account not only that any health condition or diagnosis does not grant the worker a reinforced labor stability, but also that, in any case, the position of the High Courts varies in relation to the scope of this special protection. However, it can be taken as a reference what was established by the Constitutional Court in Ruling T-041 of 2019, in which it specified:

"But who can be considered as subjects in circumstances of manifest weakness for health reasons? In this regard, this Corporation has established that a worker who: "(i) can be classified as a person with a disability, (ii) with physical, psychic or sensory impairment to a relevant degree, and (iii) in general all those who (a) have a serious affectation in their health; (b) that circumstance 'prevent[s] or substantially hinder[s] them from performing their work under regular conditions,' and (c) it is feared that, in those particular conditions, they may be discriminated against by that fact alone, is in circumstances of manifest weakness and, therefore, is entitled to 'reinforced labor stability.'"

Consequences of dismissal in the event of a dismissal under a legal protection system

The dismissal without just cause of an employee entitled to a reinforced labor stability may generate, in the event of possible claims through tutela or in the ordinary labor jurisdiction, the reinstatement of the employee, the declaration of no solution of continuity from the date of termination and, therefore, the payment of wages and benefits not received during the termination, as well as the payment of social security contributions.

Collective dismissal

In the first place, in order to consider when there is a collective dismissal, it is necessary to refer to the provisions of numeral 4 of Article 67 of Law 50 of 1990, which establishes that "The Ministry of Labor and Social Security may not classify a dismissal as a collective dismissal unless it affects in a period of six (6) months a number of workers equivalent to thirty percent (30%) of the total number of workers linked to the employer by an employment contract, in those companies with a number of more than ten (10) and less than fifty (50) workers; twenty percent (20%) in those with more than fifty (50) and less than one hundred (100) workers; fifteen percent (15%) in those with more than one hundred (100) and less than two hundred (200) workers; nine percent (9%) in those with a number of workers higher than two hundred (200) and lower than five hundred (500); seven percent (7%) in those with a number of workers higher than five hundred (500) and lower than one thousand (1000) and five percent (5%) in companies with a total number of workers higher than one thousand (1000)".

From the foregoing, it is clear that the legislator established an objective criterion to determine whether or not collective dismissal is configured, taking as a reference the total number of workers of the company and the percentage of workers dismissed -terminations without just cause- in a period of 6 months.

Therefore, if the number of workers that the employer wishes to dismiss exceeds this limit, it is appropriate to request prior authorization from the Ministry of Labor, in accordance with the terms of the aforementioned Article 67 of Law 50 of 1990.

However, it must be taken into account that the termination of employment contracts for any of the just causes set forth in the law or for legal reasons, such as the expiration of the agreed fixed term, do not form the basis or sum for the purpose of identifying the cause of a collective dismissal.

Thus, in the event of not requesting prior authorization and exceeding the permitted limit of terminations, the law establishes as a legal consequence the ineffectiveness of the dismissals, indicating that they will not produce any effect, which entails not only the immediate reinstatement of the workers, but also the consequent payment of salaries and benefits lost since the date of termination, due to the dismissal carried out without complying with the procedures set forth in the law.

Finally, the Ministry of Labor has reminded that non-compliance or non-observance of labor regulations - such as Article 67 of Law 50 - could lead to the application of the fine sanction established in Article 486 of the Substantive Labor Code.