What is a dismissal?
It is the employer’s express intention to terminate the employment relationship, whether due to a breach by the employee or for objective reasons related to the company or the employee.
Why do we say that a termination is unfair? Any termination of employment by the company must always comply with current labor regulations, as set forth in:
The collective bargaining agreement applicable to the employment relationship, and in the absence thereof,
Workers’ Statute
The termination must be:
- You must be notified in writing, and depending on the type of termination, you must be given at least 15 days’ advance notice.
- Payroll settlement and severance pay. Days worked and final settlement: accrued but unused vacation time, overtime, holiday pay, and night shift premium. Everything the company owes the employee must be paid in full at that time.
What’s really going on?
Verbal terminations -> No written notice. Today is your last day of work; don’t come in anymore. There’s no more work for you. When there’s more work, I’ll call you.
What should we do in these situations?
- Seek legal advice from an attorney
- Monitor the deadlines for termination -> 20 business days following the effective date of termination.
- Find out the reason or cause of the termination. It may be that the reason is not a violation of company policy, but rather that the company is retaliating against the employee, who had previously been voicing complaints and demanding his or her rights.
- Certified Fax: It is important to send a certified fax to the company stating that you have been terminated but that the company has not provided a reason for the termination, and that the company has 48 hours to provide a reason. If the company fails to do so, you will be considered terminated and may take appropriate legal action in this regard.
- The company may or may not respond to this certified fax. But we will have this piece of evidence to show that they fired us without giving us a reason for the termination.
- Regardless of whether the company responds or not, you must always keep an eye on the deadlines, and even while you are negotiating, you should file the conciliation petition and, at the same time, file a lawsuit.
Now, while it is true that I mentioned earlier that there can be several types of dismissals:
What Is Disciplinary Dismissal of an Employee?
It is a unilateral decision by the employer, based on a serious and willful breach of contract by the employee.
There is a list in the ET itself:
a) Repeated and unjustified absences or tardiness from work.
b) Indiscipline or insubordination at work.
c) Verbal or physical abuse directed at the employer, employees of the company, or family members living with them.
d) Breach of the principle of good faith in a contract, as well as breach of trust in the performance of work.
e) A continuous and voluntary decline in normal or agreed-upon work performance.
f) Habitual drunkenness or substance abuse, if they adversely affect work performance.
(g) Harassment based on racial or ethnic origin, religion or beliefs, disability, age, or sexual orientation, as well as sexual harassment or harassment based on sex, directed at the employer or at individuals working for the company.
Forms:
New! Pre-dismissal hearing. An essential requirement prior to the decision to terminate employment. If this hearing is not held, the termination will be deemed unjustified or void (depending on the case).
This obligation is not expressly provided for in the Workers’ Statute, but it is required by international regulations—specifically, Article 7 of Convention No. 158 of the International Labor Organization:
“An employee’s employment relationship shall not be terminated for reasons related to his or her conduct or performance before he or she has been given the opportunity to defend himself or herself against the charges brought against him or her, unless it would be unreasonable to expect the employer to grant this opportunity.”
This became mandatory following Supreme Court Ruling No. 1250/2024, dated November 18, 2024, which established the obligation for companies to hold a hearing with employees prior to proceeding with their disciplinary dismissal so that they may defend themselves against the allegations before the termination of their employment relationship. This is the case even though Article 55 of the Workers’ Statute makes no mention of this requirement and despite the fact that case law over the past few decades had held to the contrary.
It should not be forgotten that the Labor Code establishes the obligation to hold a preliminary hearing, but only when the employee is a legal representative of the workers or a union delegate; in such cases, a hearing involving both parties must be initiated, in which, in addition to the employee concerned, the other members of the representative body to which he or she belongs—if any—shall be heard.
If the employee is a member of a union and the employer is aware of this, the employer must first hold a hearing with the union representatives from the union branch corresponding to that union.
In light of this ruling, the following questions arise:
Do companies know how they will implement this preliminary hearing?
What are the consequences of failing to hold a preliminary hearing in terms of the court’s assessment of the dismissal?
How much time must the company allow the employee for this preliminary hearing?
How long does the employee have to respond to this hearing?
Is it possible that the employee will not be terminated as a result of this hearing process?
What happens if the company fails to provide the employee with a pre-dismissal hearing?
If the preliminary hearing is not held, the disciplinary termination will be deemed improper due to a failure to meet the formal requirements.
If the dismissed employee falls under any of the protected categories (pregnancy, disability, among others) or if there has been a violation of a fundamental right or discrimination, this may lead to the dismissal being declared null and void.
If, after the preliminary hearing has concluded, the employer proceeds to terminate the employee, the employer must issue a written notice of termination stating the reasons for the termination and the date on which it will take effect.
Deadlines:
Starting from the effective date of the termination, we have 20 business days from the following day.
Evidence:
In its letter, the company must state all the reasons, as this will serve as its evidence to demonstrate that there was a serious and culpable breach of duty on the part of the employee.
The employee may gather all valid forms of evidence, such as: emails, recordings of calls between the employee and the employer, videos of interactions between the employee and the employer, chat conversations, and photos. In addition, witnesses who can support your position (co-workers willing to testify, customers, among others).
Sheila Quiroz Sifuentes
Attorney Specializing in Labor Law
Martínez Caballero Abogados
