Employment Contracts and Labor Rights in the Private Sector

Posted on Dec 13, 2024 in Law & Jurisprudence

Types of Contracts

Title 4 of the procurement professional education in the private sector, reads the regulation of teachers’ statute to the classification of contracts:

Article 79 b, on the duration of the contract, which may be fixed term, indefinite term, or replacement.

a) Fixed Term Contract

Will last for a teacher work year, renewable in accordance with the provisions of the Labor Code.

This type of contract is governed by the rules laid down in Art. 159 N º 4 of the Labor Code and must note the following:

  • The duration of the term, fixed, not to exceed one year, except in the case of managers or persons with a vocational or technical degree, awarded by institutions of higher education or recognized by this State, in which case the term not exceeding two years.
  • The provision of services after expiry of the term it becomes indefinite contract.
  • These contracts only support a renewal. The second contract renewal becomes so indefinite.
  • The provision of discrete services for 12 months or more in a period of fifteen months ago to assume that there is an indefinite contract.
  • In contracts which have a maturity of 30 days or less are considered included in the agreed remuneration for holiday pay and other rights that are earned in proportion to time served. Governing the same provision if the initial contract has been extended, which in total including the first period not exceeding 60 days.
  • The termination of fixed term contract, without any justifiable grounds requires the employer to pay all the salary agreed to the termination date contained in the contract.

b) Indefinite Contract

This type of contract has no fixed duration in time, because the parties expressly said so, because nothing is said about the duration of the contract. This contract may begin with a fixed-term contract becomes indefinite as that sets the default rule like the Labor Code and this transformation can arise:

  • Because of continuing to serve with knowledge worker of the employer, after the expiration of the term of the fixed term, convert this contract of indefinite duration.
  • As production effect second of a second renewal of fixed term contract.
  • He also becomes undefined, if the employee I serve staggered under two or more contracts to run for 12 or more in a period of 15 months from the first recruitment.

c) Contract Replacement

The one under which a teacher serving in a facility to temporarily replace another existing contract can not defogging function, whatever the cause. Be established in the name of the teacher being replaced and the cause of his absence.

Major Industrial Instruments

a) Employment Contracts

The tool defined in the Act 6 and 344 of the Labor Code, whether individual or collective whose essential terms are:

  • The provision (nature) of the service.
  • The pay.
  • The subordination or dependency.

b) The Salary or Remuneration Settlements

Industrial instrument, which specifies the following month to month employment benefits, such as:

  • The salary, bonus, commission, participation, rewards (if applicable). Section 42 of the Labor Code.
  • The pension and health enforcement, according to the Decree Law 3500.
  • Other benefits or additional benefits specified in this instrument such as mobilization, lost cash, tool wear, snacks, travel, family allowances, house, room, light, fuel, food or other benefits or services.

c) Settlement of Employment

Industrial instrument which accounts for the term of the employment relationship between the parties. This instrument contains the following stipulations:

  • Identification party who hired.
  • Nature of service provided by the worker and the time when this service.
  • Facts that gave rise to the term of employment or employment contract.
  • Specification of established legal grounds in the Labor Code or the teachers’ statute and its regulations. These are Art 159, 160, 161 of the Labor Code or Section 72 of DFL No. 1 Consolidated text of Law 19. 070 that governs education professionals.
  • Indemnities payable by the employer to the employee if they come from.

Rights or Pay Employee Benefits

This type of benefits or labor rights are clearly established in the Settlement work, and the main benefits or labor rights set forth in this Settlement, relate, or are granted or not granted, according to the causal claim:

a) Compensation for Years of Service Work

In the private sector is capped at 11 years, ie the employee is paid one month’s salary multiplied by each year of service, capped at 11 years. If some causal invoked Article 160 of the Labor Code, not given this right.

b) Compensation in Lieu of Notice

This right shall be granted work if the worker is not informed by letter with 30 days notice at least on the term or termination of the employment relationship and thus produced the dismissal without notice, but the worker will receive a full salary for lack of notice of the term of their employment.

c) Legal Holidays

This is the right or 15 days annual holiday with full pay working days of holiday or legal holiday for every year of service.

d) Gratuity of Article 41 Paragraph E of the Labor Code

Defines it as: Those employee benefits corresponding to the portion of the profits that the employer pay the worker benefits.

Grounds for Term of Employment in the Private System

I) Objective Causality in Terms of Labor Relations

Referred to in Art.159 of the Labor Code

These causes for term of the employment relationship do not import a worker misconduct, these causes are not attributable to acts of the employee or his employer. They are clearly identified and not causal difficult to prove and generally not eligible for compensation for years of service, except, if the parties so agree, if the relationship of subordination or dependency benefit exceeds the year of employment, or if circumstances so permit. These grounds read as follows:

  1. Mutual agreement of the parties.
  2. Resignation of employee giving notice to your employer 30 days notice at least.
  3. Death of worker.
  4. Deadline agreed in the contract.
  5. Conclusion of the work or service which gave rise to the contract.
  6. Unforeseeable circumstances or force majeure.

II) Causal Subjective Term of Employment of Article 160 of the CT

The doctrine used to classify these causes regard to the conduct of employees or the employer and are known in the literature as causal subjective term contract.

These grounds should be credited or clearly proved, through the evidence established by law. Subjective be grounds for dismissal against the worker direct or indirect subjective dismissal against the employer.

The subjective causal indirect dismissal against the employer, allowing the worker to impute such conduct to the employer, such as the employee terminates their employment and labor rights should require that the law gives, is compensation for years of service and compensation in lieu of notice.

The grounds subjective term of employment, called direct causal pray against the worker as follows:

  • a) The lack of integrity of the worker.
  • b) Ways of fact.
  • c) Libel.
  • d) Gross Misconduct.
  • e) Sexual harassment.
  • f) Negotiations to do the work in the rotation of the establishment, business, and are prohibited.
  • g) Abandonment of work by the worker which translates into:
    • Untimely Departures
    • Refusal to work without good cause.
  • h) No employee attendance of their work for two days straight, two Mondays in the month, or three days at the same time if they are independent or non-consecutive days.
  • i) Non-attendance to duty, when the worker plays an indispensable role in the progress of the establishment.
  • j) Damage, injury, or damage intentionally caused damage at the premises, that is intentionally caused material damage at the facilities, materials or machinery of the company.
  • k) Acts, omissions or negligence affecting the safety or operation of the establishment, security or activity of the workers or the health of these.
  • i) Serious breach.

These direct causal dismissal subjective, are attributable to workers and does not entitle them to compensation for years of service.

Notwithstanding the foregoing, the employee may terminate his employment relationship, as already noted, calling him a cause against the employer, duly attested, is what is called indirect cause for dismissal against the employer and can only be invoke the following:

  • Lack of probity
  • Roads fact
  • Insults
  • Gross Misconduct
  • Sexual Harassment
  • Acts, omissions or negligence affecting the safety or operation of the establishment, the safety of workers or their health
  • Serious breach of the obligations under the contract.

In doctrine, the grounds that the employee alleged the employer duly attested, are known causes for term of employment for indirect firing.

We mentioned the term ‘subjective grounds of the employment relationship of Article 160 of the Labor Code. Notwithstanding the foregoing, we should define some terms such as:

a) Lack of Probity

According to Rale, dishonesty is dishonesty. Thus in the Probity doctrine could be defined as those actions or events involving dishonesty, honesty and responsibility that imparts detrimental to the estate of the company.

The lack of integrity is the absence of righteousness in the professional, honesty, integrity in the discharge of the office to function, is related to confidence in the professional and the corresponding expected loyalty. Applies to own attitudes in carrying out the teaching role, integrity, honesty, righteousness professional qualities of education in the exercise or practice.

b) Ways of Fact

It corresponds to any act of force or physical violence or coups executed in the worker against the employer or any worker who works in an establishment.

c) Slander

They are expressions that harm the integrity of an individual grievances through works or offensive words and descalificadotas against a person. The Penal Code defines libel as: Any expression uttered or action taken in dishonor, discredit or contempt of a person. The work injury is more extensive than in criminal matters.

d) Sexual Harassment

Are requirements of a sexual nature without consent by the person who receives and who threaten or harm their employment status or employment opportunities. These requirements are misconduct and may be done by any means.

It is an act of discrimination as it is to place a worker (a), under which a behavior is required in this case of a sexual nature, which goes beyond what they are job functions in order to access employment benefit or maintain employment.

The legal consequences of the mistake of relying on a subjective causal improperly or unjustifiably against professional, leads not only to grant compensation outlined above but also to increase such benefits or allowances:

  1. Increased by 50% if improperly invoked: The Causal No. 7 of Article 160 which reads as Serious breach of the obligations under the contract.
  2. If you unfairly or improperly invoked the causal N º 1 of Article 160 of the Labor Code (lack of probity, assaulting, insults, sexual harassment, unethical behavior), were increased by 80% the total amount required the worker to the employer.
  3. It is also an 80% increase in compensation for wrongful invocation causal No. 5 of Article 160 of the Labor Code: acts, omissions or negligence affecting the safety or operation of the establishment, security or the health of these.

Notwithstanding all the above and if the employer terminates the employment relationship without entirely or pay pension contributions and health of workers, may be invoked by this, the nullity of the dismissal against the employer and not the dismissal unjustified and operate well in the courts of special collections executive suit against his employer with writ of execution and seizure, removal of species, deserragamiento forces and against the employer, to pay the worker owed by the employer.

III) Causal Express Term of the Employment Relationship of Article 161 of the Labor Code

The employer invoked against the worker. This causal da always entitled to compensation for years of service.

This causal reads as follows: Needs of the company, or service establishments such as:

  • a) Resulting from the rationalization and modernization of the enterprise or establishment.
  • b) Low productivity
  • c) Changes in market conditions or the economy.

All these enumerations require the separation of one or more employees of the company.

Proceedings for Unfair Dismissal in the Private Sector

1. Attendance at the Labor Inspectorate, Claim and Appeal to Conciliation

If there has been unjustified dismissal and the practitioner does not have the means to enforce unpaid benefits and compensation from the employer and has been invoked a causal misconduct (unfair) will attend the Labor Inspectorate to lodge working a claim.

The Labor Inspectorate is the place where the person concerned shall make its labor claims against their employer. The Labor Inspectorate, through the inspector or officer, cited two occasions by the employer and the worker to the labor inspectorate, so that the parties agree to reconcile or agree on the term of employment and thus raise a record of Labor Settlement term referring to a causal relationship work.

2. Labor Court or the Industrial Court and the Interposition of Labor Demand

When the employee has been unjustifiably dismissed and the employer has not attended to so-called compromise that makes the Labor Inspectorate, will within 60 working days to file a labor demand in the labor tribunals and this period is increased to 90 working days, they do come first to the labor inspection and then the Labor Court.

The employee filed a lawsuit laying the foundations of law and fact which it is based and the specific requests that this Court compel the employer to pay these employee benefits that may relate to compensation for years of service, compensation in lieu of notice, legal holidays, bonuses or other.

2.1. The First Stage or Phase

This is a preliminary phase of the labor dispute to the labor inspection, with an eventual settlement between the parties.

2.1. The Second Stage

A. – This phase corresponds to the filing of a labor demand in court work.

Then the court issues a resolution citing the parties to a preparatory hearing, it sends the application to the defendant.

B. – At the preparatory hearing, the request is answered and the parties offer all the evidence in order to assert the claim that they have, to convince the court on the right who believe they have. Day preparatory hearing, the parties offer and present forms of evidence such as: instruments (contracts, wage settlements, quit claim, etc..) witnesses among other means for the future trial hearing. If the court finds that no material facts relevant issue, concludes with the handing down a sentence. With these two instruments filed in the court work; claim and defense, the court issues a ruling or order of proof clearly derived from the relevant facts, substantial and controversial, fixing the points of discussion and hearing date of trial.

C. – As the court found that there is substantial facts, relevant and controversial, citing an audience of trial, with proper testing phase. It may have some written for adjudication, then comes the final decision at first instance and finally second-instance appeals to confirm or revoke the decision work. Exception may be a last resort in the Supreme Court to discuss the work rule violation.

2.2 Employment Matters There are Several Ways

2.1 Regular Procedure or of General Application

It includes those procedures for occupational accidents, occupational diseases, outrages, evictions, allowances, privileges, taxation, pensions, wages, unfair dismissals in general.

2.2 Procedures for Labor Protection

It is a procedure by which the worker claims for violation of their fundamental rights in its relations with the employer. Examples, acts of discrimination by race, sex, age, religion, political opinion, breaches by unfair or anti-union collective bargaining, etc..

2.3 Procedure Monitorio

It involves those claims or proceedings for small claims that are equal to or less than 8 times the minimum monthly income. This is the procedure to be brief (initiated by the Labor Inspectorate and the Employment Court) and to display on a single audience with maximum delay of 15 days.

2.4 The Claim of Administrative Fines

Procedure to be in the event that the Labor Inspectorate of fine recourse against an employer.

2.5 Executive Procedure

As its name indicates it is a forced or executive proceedings. This is a sentence that should be enforced, with writ of execution and seizure