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Dismissal is a power of the employer to terminate the employment relationship, this dismissal may be for just cause or for unjustified cause, also called dismissal without just cause.
Just causes for dismissal are contemplated in labor legislation, namely in Article 62 of the Substantive Labor Code, as amended by Article 7 of Decree 2351 of 1965, and may also be found in the Internal Labor Regulations, employment contracts or in collective bargaining agreements or conventions.
Initially, if a worker is immersed in one of these causes, he/she could be dismissed with just cause, but it must be taken into account that in Colombia there is reinforced labor stability for certain workers for being in a vulnerable labor situation and in this event, even if there is a just cause, the employer must obtain permission for the dismissal in the following cases:
Authorization by the Ministry of Labor.

  1. Pregnant and nursing mothers.
  2. People with manifest weakness or health leave, i.e. when a person is unable to perform normally at work due to physical or mental illness, etc.
  3. Paternity leave.
  4. Individuals who are three years or less away from retirement.

Authorization by the labor judge.

  1. Worker protected by union privilege.

Now, if the person has performed an action contemplated as a cause for dismissal and is not one of those who enjoy reinforced labor stability, the dismissal may proceed with the dismissal, since the dismissal is not a disciplinary sanction, but the consequence of the breach of contract, for such reason initially it would not have to be called to discharge and perform a procedure if it is not stipulated in the Internal Labor Regulations, employment contract or collective bargaining agreement or pact.
In this sense, the Supreme Court of Justice, Labor Chamber in the SL 1444-2018/58083 of April 24, 2018, in which it stated that “the citation to discharge is not provided by law as a prerequisite for dismissal with just cause and if in addition it has not been provided either The company’s internal regulations as such, it is not necessary, therefore, for the protection of the right of defense, it is necessary to examine the way in which the facts occurred and, from there, determine whether or not it was necessary for the clarification of the facts. Lhe minimum legal requirement is that at the time of dismissal the specific reasons and motives for the dismissal are made known, with or without a discharge”.
However, the Supreme Court of Justice Labor Chamber through Ruling SL 4547-2018 of October 10, 2018, stated that “the reasoned dismissal letter is not sufficient to qualify as just cause for a termination, what is stated therein constitute the reasons for the employer’s decision, but by itself, it does not prove the existence of the same, but the imputations to the worker must be supported by other evidence of the process that proves the existence of the facts.
Based on our experience, we recommend the following tips when dismissing an employee for just cause:

  1. That the just cause is expressly typified, i.e., that it is exactly the same as that stipulated in the law, internal work regulations or any other document that binds the parties.
  2. That it is invoked in a timely manner once the cause for dismissal is known, i.e., not to invoke old causes. Seniority is predicated from the moment in which the employer became aware of the occurrence of the cause.
  3. Narrate the facts that constitute the just cause or causes for termination, in order to guarantee a correct explanation of the reason or reasons for terminating the contract and cite the rule on which the just cause for terminating the contract is based. Although the law does not state that it must be done in writing, we recommend that it be done in this form in order to pre-constitute proof of the facts on which the cause of action is based.
  4. If the employee has reinforced labor stability, request to the competent authority the permission for the dismissal, however, it must be taken into account that even if there is authorization from the competent authority this does not imply that there is res judicata, therefore the employee may go to the labor jurisdiction if he/she does not agree with the dismissal.
  5. Although the Supreme Court of Justice mentions that since it is not a disciplinary sanction, the employee should not be summoned to present his or her case, we recommend that in order to guarantee due process and the right to defense, the employee be given the opportunity to make a statement and defend himself or herself against the facts that are being imputed to him or her as just cause. This can be done through the procedure of charges and discharges, which allow the collection of all the evidence that supports the occurrence of the cause and that, in an eventual judicial scenario, can demonstrate the basis of the unilateral termination with just cause by the employer.
  6. Finally, we recommend that you seek the advice of an attorney in order to determine in each specific case, which is the best procedure, taking into account the specific conditions of the case and the elements of each ground that is intended to be used.

Author: Carolina Bertel
Publisher: Santiago Pinzon

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