Employment 2021

Last Updated September 07, 2021

Colombia

Law and Practice

Author



Escandón Abogados is a law firm specialised in employment and labour law, dedicated exclusively to providing legal advice to companies. The firm's broad experience in preventative consultancy, collective bargaining procedures, litigation, strategic planning and redundancy plans, among other aspects, has led it to be recognised as one of the leading firms in business advice in Colombia. Aware of the importance that human capital represents to companies, as the engine for their productivity, and the correct application of the labour and employment regimen, the firm offers integral advice in legal representation before court, as well as administrative hearings before the Ministry of Labour and different government authorities related to labour and employment. The firm's reputation is founded on the quality of its service and personalised attention to its clients.

The relevant labour regulations in the past year are the following.

  • Act 2101 of 2021, which approved the reduction of ordinary working hours from 48 to 42 hours per week without this representing a reduction in wages or in guarantees and acquired rights of workers, which will be done progressively.
  • Through Executive Order 1174 of 2020, the Ministry of Labour regulated the social protection baseline for those dependent or independent workers who earn less than one current legal monthly minimum wage. The purpose of this protective baseline is to allow these workers to access the general social security system through its subsidised health system, and the economic and periodic benefits social service (BEPS) in order to have a pension and inclusive insurance to protect against labour risks.
  • Executive Order 526 of 2021, which enables the electronic or digital signature of employment contracts.
  • Executive Order 688 of 2021, which creates the strategy called "sacudete" to promote hiring young people between the ages of 18 and 28 years, by giving a subsidy to those who hire them.

Due to the pandemic, there was an unprecedented production of regulations. More than 168 regulations were issued for labour-related issues. Some of the most relevant provisions are listed below:

  • 24 February 2020 – Circular 17 of the Ministry of Labour established the minimum guidelines for the prevention of, and response to, COVID-19;
  • 12 March 2020 – Resolution No 385 of the Ministry of Health, by means of which a sanitary emergency was declared;
  • 17 March 2020 – Decree 417 of the Presidency of the Republic, by means of which a state of emergency was declared and the president was empowered to take extraordinary measures;
  • 17 March 2020 – Circular No 21 of the Ministry of Labour, through which alternatives were advised in order to avoid lay-offs;
  • 19 March 2020 – Circular No 22 of the Ministry of Labour, by which rigorous labour inspections were established for employers with regard to the management of employment contracts;
  • 27 March 2020 – Decree 488 of the Presidency of the Republic, by which labour-related measures were issued that allowed, among other things, the employer to grant vacations by means of a one-day notice, and workers subject to a salary reduction could cash in their severance payments;
  • 17 April 2020 – Circular No 33 of the Ministry of Labour, through which mechanisms were established to mitigate the effects of the pandemic, advising paid leave, modification of work hours, and modification or suspension of extra-legal benefits, among others;
  • 24 March 2020 – Resolution No 666 of the Ministry of Health, through which the General Biosafety Protocol was established at the national level;
  • 8 May 2020 – Decree 639 of the Presidency of the Republic, through which the Programme to Support Formal Employment (PAEFF, according to its Spanish acronym) was created, comprising a payroll payment subsidy to companies that have been economically impacted by the COVID-19 crisis;
  • 3 June 2020 – Decree 770 of the Presidency of the Republic, by means of which the Mid-year Bonus Payment Support Programme (PAP, according to its Spanish acronym) was created as a subsidy so companies could pay said labour right;
  • 3 June 2020 – Decree 771 of the Ministry of Telecommunications, which establishes that the transport subsidy has to be paid as a connectivity aid for workers who earn up to two minimum wages;
  • 10 August 2020 – Decree 1109 of the Presidency of the Republic, through which the PRASS testing, tracking and selective isolation programme is created; and
  • 12 May 2020 – Act 2088, through which working at home is regulated as a service provision modality in special, occasional or exceptional situations.

Directorate, Trust and Management Employees

People who hold managerial positions in Colombia represent the employer, have a high degree of hierarchy, perform management or administrative functions, and are well trusted and managerial employees. According to Article 32 of the Substantive Labour Code, they hold positions such as manager, administrator or director.

Differences from Other Employees

These officials are treated differently for legal purposes compared to other employees in aspects such as:

  • they are excluded from the legal maximum working hours; therefore, they are not entitled to overtime payments;
  • they are subject to the rules that regulate particular cases regarding compensation in money, accumulation, replacements and interruption of vacations; and
  • as an exception to the rule, these workers can be hired for up to two shifts in cases that consist of special shifts comprised of 36 hours a week and six hours a day.

Jurisprudence has established that in order to determine whether a worker is part of entrusted management, they must meet one of the following characteristics to be verified:

  • directorate level – a person within the company’s organisation with a level of special responsibility or command and who, due to its hierarchy, holds certain positions for the fulfilment of functions that represent the employer;
  • trust – a person within the company that has access to confidential information that other workers do not have access to; or
  • management – a person within the company has the capacity to dispose of company monies or resources.

In Colombia, reality prevails over forms, so even though the parties agree that a worker belongs at the directorate, trust or management levels without actually performing any of the previously stated functions, the worker is not construed to be a well-trusted and management worker, and, consequently, is not subject to the exceptions indicated above.

Types of Employment Contracts

  • Indefinite term – it does not have an established date for its expiry; it is valid as long as the grounds that gave rise to it subsist. However, any of the parties may terminate it without prior notice. If the employer decides to terminate the contract without just cause and in an untimely manner, it must pay compensation as indicated in Article 64 of the Substantive Labour Code, as amended by Article 28 of Act 789 of 2002, depending on the worker's seniority and salary.
    1. If the worker earns less than ten minimum wages, the compensation will be 30 days of salary for the first year, and 20 days of salary for each additional year and proportionally per fraction.
    2. If the worker’s salary is more than ten minimum wages, the compensation will be 20 days for the first year, and 15 days per additional year and proportionally per fraction.
  • Fixed term – those with an established expiry date, which in no case may exceed three years. However, if the employer does not provide advance notice of termination at least 30 days before, it will be extended for a term equal to that initially agreed upon and so on.
  • With a fixed term of less than one year – unlike the foregoing, it can only be extended for periods equal to, or less than, the first, for three times, and after the latter, the term cannot be less than one year. And for termination, a 30-day notice, prior to the expiry date, must be provided in writing. If the employer terminates it without just cause, wages lacking before expiry must be paid as compensation.
  • For contracted work or labour – it is an employment relationship that lasts as long as the entrusted task. The work contracted must be specified. If the employer terminates it without just cause, it must pay the salaries generated by the remaining time necessary to fulfil the task, a term that in any case cannot be less than 15 days.
  • Occasional and temporary accidental work contract, under Article 6 of the Substantive Labour Code – its duration cannot be longer than one month and the activity for which it is contracted must be different from the company’s ordinary ones. It does not have to be in writing. Like a contract for the duration of work, if terminated without just cause, the compensation will correspond to the number of days remaining in order to complete the work, which may not be less than 15 days.

Maximum Legal Day

The maximum legal working hours in Colombia is 48 hours a week, eight hours a day. However, Act 2101 of 2021 was recently enacted, through which the working day is gradually reduced to 42 hours a week, as follows:

  • as of July 15, 2023, 47 hours a week;
  • as of July 15, 2024, 46 hours a week;
  • as of July 15, 2025, 44 hours a week; and
  • as of July 15, 2026, 42 hours a week.

The law establishes that the parties may agree to a five or six-day working week, with a mandatory rest day, taking into account the gradual reduction of the legal maximum working day.

This decrease does not affect worker income, nor labour rights.

Flexible Working Hours

This modality allows the parties to agree to distribute a maximum working day of 48 hours per week in flexible daily shifts with a maximum of six days and include a mandatory rest day (Sunday or Saturday if it has been institutionalised).

In any case, the daily working shifts cannot be less than four hours or more than ten hours and the organised daily schedule must be within the day shift working hours; that is, between 6am and 9pm.

This shift was also modified with the gradual reduction of the maximum legal working day, so it will have to be adjusted annually in the manner indicated above.

Part-Time Workers

Employers can hire people to perform part-time work, which includes labour payment in proportion to the time worked.

Now, part-time workers who earn less than the legal minimum wage are governed by Executive Order 1174 of 2020, which created the Social Protection Baseline. This system has a different social security regime from that for the ordinary worker, to the extent that payments are not made to the traditional pension scheme, but to a special savings scheme called BEPS, neither is there a contribution to the general health system, since the workers in this scheme must have a subsidised health system.

Overtime

This applies when work exceeds the hours agreed by the parties. According to Article 22 of Act 50 of 1990, a person cannot work more than two overtime hours a day, 12 hours a week. Authorisation from the Ministry of Labour is required for overtime work in a company.

As for remuneration, the surcharges on the value of the ordinary hour are as follows:

  • extras for a day shift – 25%;
  • night shift overtime – 75%;
  • holiday day shift overtime – 110%; and
  • holiday night shift overtime – 150%. 

Minimum Wage

In Colombia, the legal minimum wage is established by the Permanent Commission for the Agreement on Salary and Labour Policies, made up of representatives of the workers, unions, business and industrial guilds, and the national government.

The Commission must meet to agree on the amount of the legal minimum wage before December 30th. If no agreement is reached, the national government must fix it no later than December 30th.

Salary Increase

As indicated, the increase in the minimum wage must be set by the Permanent Commission for the Agreement on Salary and Labour Policies; however, increases in salaries above the legal minimum are not legally regulated and the case law is not unanimous in this regard.

The Constitutional Court has established that a salary must be increased at least in line with the Consumer Price Index, which marks the country's inflation in the immediately preceding year, so that the worker may not suffer the consequences of the loss of the purchasing power of money.

For its part, the Supreme Court of Justice has indicated that there is no legal obligation to increase wages above the minimum, since the increase must respond to the mutual agreement of the parties.

Vacations

In Colombia, an employee is entitled to 15 working days of rest for each year of service. Vacations can be accumulated for up to two years, provided that the worker enjoys at least six continuous days each year. In the case of directorate, trust and management employees, the accumulation can be up to four years.

Vacation compensation

Vacations may be compensated in money:

  • at the end of the contract if there are days left to take; or
  • while the contract is in force, at the request of the worker, but only 50%.

Remuneration of vacations

Vacations are remunerated with the last salary earned by the worker at the time of taking the vacation period, when the salary is fixed, not including remuneration for work on Sundays or holidays, or overtime. Or with the average of what was earned in the year prior to the date on which they are granted, when the salary is variable.

Leaves

Maternity

Maternity leave in Colombia is 18 weeks. It is regulated in Article 236 of the Substantive Labour Code, which was amended by Law 1822 of 2017.

It is remunerated with the fixed salary earned at the time of taking it, or with the average of the salary earned in the last year if it is variable.

The mother must take at least one week as prepartum leave, or two if required, and the remaining 17 or 16 postpartum. If, for some reason, she is unable to take the prepartum leave, she will take the 18 weeks postpartum.

Mothers with a multiple or pre-term birth shall be entitled to two additional weeks of maternity leave.

Paternity

Currently, fathers are entitled to eight working days of paternity leave. However, there is a bill that only lacks presidential approval to become law of the Republic that extends the paternity leave and creates shared parental leave and part-time flexible parental leave.

The extension consists in granting the father of the minor two weeks of paternity leave, with its payment borne by the health system and recognised in proportion to the time contributed by the worker during the gestation period. 

The leave may be extended up to five weeks, at a rate of one for the decrease of each percentage point of structural unemployment, compared to the rate at the date of entry into force of the rule.

The Ministry of Finance, the Bank of the Republic and the Department of National Planning shall define the methodology for measurement of the structural unemployment rate, which must be published in December of each year.

Shared paternity leave

This provision allows parents to freely distribute among themselves the last six weeks of the mother's leave, independently from the breastfeeding leave.

Part-time flexible parental leave

This leave allows fathers to exchange a period of maternity or paternity leave for a period of part-time work.

Mourning

Article 57, paragraph 10, of the Substantive Labour Code establishes a paid mourning leave of five working days for the death of a spouse, a permanent partner or a relative up to the second degree of consanguinity, first degree of affinity and first degree of civil relationship.

Domestic calamity

Article 57, paragraph 6, of the Substantive Labour Code establishes the obligation to grant permits, among other things, for serious domestic calamity.

The Constitutional Court, in ruling C-930 of 2009, determined that the permits established in that provision (for suffrage, burial of co-workers or of family members, serious domestic calamity, service in union positions, etc) cannot be deducted from salary or compensated in money, as the law initially provided, but must be remunerated. In the case of serious domestic calamity, the ruling indicates that the employer must grant a reasonable period of leave each month according to the circumstances of the situation.

Job stability due to illness

In Colombia, sick leave does not have a time limit, because it is forbidden to dismiss an employee who suffers from an illness that limits the employee’s ability to work; an authorisation of the Ministry of Labour should be obtained.

If the illness or accident is of occupational origin, the payment of disability, the treatment and, in general, the cost of medical care are borne by the worker’s compensation insurance. Medical disabilities are paid with 100% of the worker's salary.

If the illness is of common origin, the payment of disability and the medical treatment are borne by the health insurance. However, the first two days are paid by the employer. From then on, payments are generated as follows:

  • from the third day of disability up to the 90th day, the Health Promoting Entity (EPS, according to its Spanish initialism) pays on 66.6% of the salary, without, in any case, paying less than the minimum wage;
  • from the 91st to the 180th day, payment is on 50% of the salary, without, in any case, paying less than the legal minimum wage;
  • from the 181st to the 540th day of disability, payment is assumed by the pension fund when there is a feasibility of recovery, on 50% of the salary, without, in any case, paying less than the minimum wage; and
  • from the 540th day onwards, the EPS pays on 50% of the salary, without, in any case, paying less than the minimum wage.

Confidentiality

According to Article 58, paragraph 2, of the Substantive Labour Code employees have the duty to refrain from disclosing information that they may obtain by virtue of the position they hold and the functions they perform, especially that which is considered confidential or which, if disclosed, may cause any harm to the company, except if it is a crime. 

The violation of this duty, by revealing confidential information, or technical secrets to the detriment of the company, typifies a just cause for dismissal according to paragraph 8 of letter a) of Article 62 of the Substantive Labour Code.

Likewise, a worker who uses privileged information of the company, to which the worker had access by virtue of the position held, for personal or third-party benefit, violates industrial or commercial confidence, or misuses the privileged information, incurs a criminal offence. Notwithstanding, to be able to file a complaint in this regard, it is necessary to prove that the worker disclosed information of a confidential nature, which, in most cases, is not easy.

Exception to the duty of confidentiality

The duty of confidentiality does not operate with respect to a crime or when the worker has a court order. In such cases, the worker will have the obligation to provide the information that they may know.

Confidentiality clauses

Additionally, the parties may agree to a confidentiality clause in the employment contract, or confidentiality agreements, establishing the type of information that must remain in confidence, the term of duration of the agreement, as well as the consequences generated by the breach.

No defamation

The obligation of no defamation is regulated as follows.

Employees

While the employment relationship is in force, such obligation is understood to be included within the duty of mutual respect of the parties for the contract to be performed in a peaceful manner, which implies that there is trust and loyalty.

The Substantive Labour Code establishes the obligation of the parties to perform the contract in good faith (Article 55), as well as the worker’s duty of obedience and fidelity to the employer (Article 56), and Article 58, paragraph 4, of the same regulation establishes the worker's obligation to "strictly observe morality in the worker’s relations with superiors and colleagues".

The obligation of no defamation after the end of the contract is usually agreed in a confidentiality agreement signed at the time of termination of the employment contract, which, as indicated, establishes the consequences for the breach, usually the payment of compensation.

Employers

While the employment contract is in force, the obligation of no defamation is provided for in the obligation of the parties to perform the employment contract in good faith (Article 55 of the Substantive Labour Code), as well as by prohibiting the employer from carrying out any activity or conduct that may affect the dignity or violate any right of the worker (paragraph 9 of Article 59).

Once the employment contract is ended, the employer is prohibited from giving bad references or creating blacklists in order to harm the ex-worker in the search for a new job (Article 59, paragraph 9, of the Substantive Labour Code). 

Exclusivity

The parties may agree in the employment contract that the staff member shall work exclusively for the employer. Failure to comply with this agreement may result in dismissal with just cause.

Non-competition

Article 44 of the Substantive Labour Code prohibits the exclusivity or non-competition clause once the employment contract ends, because it violates the staff member's right to work once they leave the company. In this sense, such clauses or provisions cannot be made enforceable. 

In Colombia, non-solicitation clauses are provided for in confidentiality agreements that are signed while the employment contract is in force or upon its termination.

These agreements may contain the prohibition of making use of the company's information, hiring company personnel, or contacting its customers, and, in general, everything regarding which protection is intended to be applied.

As indicated above, the agreement provides for the effects of non-compliance, which usually results in the payment of compensation.

Law 1581 of 2012, regulated by Decree 1377 of 2013, prohibits the use of personal information without the authorisation of its owner. These provisions establish that all persons have the right to know, update and rectify the information that third parties keep.

A company must have the authorisation of the employees, as well as of the applicants for a position, to be able to use it, and has the duty to protect and guard it. It is not feasible to disclose it without the consent of the owner; doing so may lead to sanctions by the Superintendency of Industry and Commerce, a government entity.

Law 1429 of 2010 on "Formalisation and Generation of Employment" repealed Articles 74 and 75 of the Substantive Labour Code, eliminating the obligation to comply with proportionality in the hiring of national and foreign workers contained in such regulations, considering that it was inoperative in the current labour market.

Such repeal additionally sought to protect the equal rights and guarantees of all workers without any discrimination, as established in the Conventions and Recommendations of the International Labour Organization on Migrant Workers.

Requirements for a Foreigner to Be Able to Work in Colombia

A foreigner who intends to work in Colombia must have a visa to remain and provide paid services in the country.

Likewise, those who are holders of a visa valid for more than three months are required to register themselves in the Register of Foreigners of the Migration Colombia Special Administrative Unit within 15 calendar days from the date of their entry into the country or the date of issuance of the visa, if it was obtained within the national territory.

Likewise, they must have an alien card, which must be processed before the Migration Colombia Special Administrative Unit not later than three working days following the date of registration in the Register of Foreigners.

Finally, when the foreigner intends to perform a regulated profession in Colombia, they must have authorisation of the professional council that regulates the profession that will be exercised by the foreigner, or of the Ministry of Education, accrediting their knowledge with diplomas, licences, professional cards, public certificates, etc.

The purpose of unions is to promote the social, economic and professional interests of their members, seeking to generate – through unity, sufficient strength and bargaining power – a dynamic of social dialogue between the employer and the workers.

In addition, they are considered political and social agents representing collective interests.

There are associations and guilds of businessmen that also operate as political and social agents of their members, before the government and other control entities. They promote interests as a social group, the development of freedom of enterprise, the strengthening of private initiative and the general interest of the country.

Collective agreements are entered into between employers and unions and are intended to regulate the working conditions that will govern for the duration of the agreement.

Collective Bargaining Process

In order to enter into an agreement, it is necessary to carry out a negotiation process, which begins:

  • with the presentation of a list of demands, when the first negotiation takes place; or
  • with the complaint that the union presents to the employer, accompanied by a list of demands, if there is a prior agreement.

Both the employer and the union must appoint their negotiating committees, which are understood to be fully empowered to negotiate and commit.

Once the list of demands is received, the employer has a maximum of five days to agree with the union the terms under which the negotiations will take place.

The initial stage is referred to as direct settlement, and has a duration of 20 calendar days, extendable for 20 more days.

The agreement may take place at any time during the direct settlement stage, for which it is necessary for the parties to sign the relevant minutes with the agreements reached.

If the first 20 days end without agreeing an extension, or the additional 20 days expire because it was agreed to extend the talks without reaching a full agreement, the union may choose to call an arbitration tribunal or vote to go on strike.

Strike Vote

Within ten working days of the completion of the direct settlement stage, the union must call a meeting through which a secret ballot may decide whether to go on strike or submit the differences to an arbitration tribunal.

The vote depends on whether the union is a majority union or not. Article 444 of the Substantive Labour Code provides that in the case of a minority union, the strike shall proceed with the absolute majority of the workers of the company, and in the case of a majority union, when an absolute majority of the general meeting of the union is achieved.

The strike ends with the agreement of the parties signing a collective agreement or with the call of an arbitration tribunal, if the workers of the company so decide in the meeting, or with the call of an arbitration tribunal after exceeding 60 days of a strike.

Arbitration Tribunal

An arbitration tribunal is convoked before the Ministry of Labour when there has been no direct settlement between the parties, and it is composed of three arbitrators, one appointed by the employer, another appointed by the union or unions that is/are party to the dispute, and a third one appointed either because the two previous arbitrators agree on the name of that third arbitrator or because they do not agree and the Ministry of Labour selects them by drawing lots from a list of names that the Labour Chamber of the Supreme Court of Justice sends every two years to the Ministry of Labour.

The arbitration tribunal, after taking the procedural steps in which different pieces of evidence are analysed and the parties are heard, proceeds to issue a judgment called an arbitration award, in which it resolves in equity the collective dispute arising from the presentation of the list of demands by the union. The arbitration award has the legal effect of becoming a collective labour agreement.

Termination of the Employment Contract

Article 61 of the Substantive Labour Code establishes the grounds for termination of labour relations, which are:

  • death of the worker;
  • mutual consent;
  • expiry of the agreed fixed term;
  • completion of the work or task contracted;
  • liquidation or definitive closure of the company or establishment;
  • suspension of activities by the employer for more than 120 days;
  • a ruling;
  • just cause; and
  • failure of the employee to return to their job, when the causes for the suspension of the contract have disappeared.

Formalities for Dismissal

  • The grounds for termination provided for in paragraphs 5 and 6 require authorisation of the Ministry of Labour.
  • The second ground, mutual consent, requires for it to be effective that it be recorded in writing.
  • The third ground, expiry of the agreed period, requires the employer to give prior notice of the termination, at least 30 days in advance, or the contract will be extended.
  • The eighth ground, which provides just cause of dismissal, requires that a prior procedure be followed, in order to ensure both due process and the right of defence of the employee who is to be removed.

Collective Redundancy

According to Article 67 of Law 50 of 1990, collective redundancy is incurred when several employment contracts are terminated without just cause, exceeding the permitted ceilings considering the total number of workers in a company, within a period of six months.

For this purpose, terminations due to expiry of the agreed fixed term, or due to completion of the work, or due to just cause, are not taken into account.

Collective redundancy is incurred when the following percentages of workers are dismissed:

  • more than 10 workers and less than 50 – 30%;
  • more than 50 and less than 100 – 20%;
  • more than 100 and less than 200 – 15%;
  • more than 200 and less than 500 – 9%;
  • more than 500 and less than 1,000 – 7%; and
  • more than 1,000 – 5%.

If a termination is required in excess of the ceilings indicated above, the employer must request authorisation of the Ministry of Labour. If the employer proceeds with the collective redundancy without the authorisation, such terminations will be ineffective.

Prior Notice

As indicated above, in fixed-term contracts it is necessary to give the worker prior notice that the term is going to be made effective, not less than 30 days in advance. Failure to do so shall extend the employment contract for an equal term.

If prior notice is given, the contract may be terminated on the set date of termination without payment of legal compensation.

Compensation

Compensation for termination of the employment contract without just cause depends on the type of contract, as follows.

  • Fixed-term contract –  the compensation corresponds to the days remaining before the expiry of the agreed fixed term.
  • Indefinite-term contract – the compensation corresponds to the seniority of the worker and the amount of salary the worker receives, in the following terms.
    1. If the salary is of more than ten current legal minimum monthly salaries (smmlv, according to its Spanish initials), the following will be paid:
      1. 20 days of salary for the first year of work; and
      2. 15 days of salary for each additional year, and proportionally per fraction.
    2. If the salary is of less than ten smmlv:
      1. 30 days of salary for the first year of work; and
      2. 20 days of salary for each additional year, and proportionally per fraction.

Collective Redundancy

As mentioned, in order to carry out mass dismissals exceeding the ceilings indicated above, it is necessary to have the authorisation of the Ministry of Labour; otherwise, the terminations of contracts will be ineffective.

Dismissal with Just Cause

Just grounds for dismissal by the employer are established exhaustively in Article 62(a) of the Substantive Labour Code. These are:

  • deceiving the employer to obtain admission to the company or some benefit;
  • engaging in acts of violence or indiscipline against the employer or co-workers during working hours;
  • engaging in acts of violence or indiscipline against the employer or co-workers outside working hours;
  • causing intentional damage to tools, facilities or work equipment;
  • immoral or criminal acts committed by the worker in the workplace;
  • a serious breach of the obligations borne by the worker or incurring any fault considered serious;
  • arrest for more than 30 days, except when the worker is acquitted in criminal proceedings;
  • disclosure by the worker of privileged information to the detriment of the company;
  • poor performance of the worker compared to their co-workers;
  • recurrent refusal of the worker to comply with their obligations;
  • any vice of the worker that affects the discipline of the company;
  • refusal of the worker to implement the measures aimed at preventing accidents at work or occupational diseases;
  • incompetence to perform the entrusted task; and
  • recognition of the invalidity or old-age pension to the worker.

As indicated above, it is necessary to guarantee due process and the worker's right of defence in order to apply the just grounds for dismissal.

With respect to the process, it must be noted that the one established in the company’s internal work rules, collective agreement or collective labour pact must be applied.

Procedures Prior to Dismissal

Procedure for dismissal for poor performance

For the case of poor performance – that is, to invoke the grounds established in paragraph 9) of Article 62 of the Substantive Labour Code – the procedure established in Article 2º of Decree 1373 of 1966 must be exhausted prior to dismissal. This rule provides that the worker must be warned in writing at least twice, with no less than eight days elapsing between one warning and the next.

At the third time, a similar table of functions must be sent to the worker evidencing their performance comparatively with that of their peers, for the worker to present disclaimers on those results, and, based on such disclaimers, to prepare the letter of termination of the employment contract.

If the employment contract were terminated for poor performance without compliance with the above procedure, it would result in the payment of indemnity for dismissal without just cause.

Prior notice

The grounds contained in paragraphs 9 to 15 require that 15 days’ notice be given to the worker, prior to the date of dismissal.

Conciliation

Conciliation is an alternative conflict resolution mechanism, under which the parties avoid a conflict or end an ongoing one. It must have the endorsement of a public official invested with powers to conciliate. In labour matters, it is a labour judge or an inspector of the Ministry of Labour. They cannot judge on certain and indisputable worker's rights.

The parties must be identified, as well as the provision of a brief list of the facts that give rise to the conciliation, a clear description of what is the object of the conciliation and the mutual concessions.

It generates res judicata, the same facts cannot be re-discussed before another instance.

Transaction

The transaction is another alternative dispute resolution mechanism that, like conciliation, seeks to prevent a conflict or end an ongoing one. It has the same conciliation requirements, except that it must be endorsed by a public official. This is a private agreement between the parties.

Limitations on Conciliations or Transactions

Worker with job stability reinforced by health

The Constitutional Court, in ruling T 217 of 2014, established that agreements for the termination of an employment contract of people with reinforced job stability must specify the worker's conditions when the relationship is terminated, advise that they have legal protection and record it in the minutes; in addition to the fact of the wish to terminate the contract. Otherwise, the agreement will be deemed ineffective and the worker's reinstatement could be ordered.

Pregnant women

The same Court, in the ruling of "Tutela" 438 of 2020, established that labour stability due to maternity is a true and indisputable right and therefore the termination of the contract by mutual agreement of a woman in a state of pregnancy or within the three months after delivery cannot be the subject of a transaction or conciliation, as it would be ineffective. 

In Colombia there are numerous types of protection that prevent an employee from being dismissed from a company. Here is a brief mention of such protections.

Maternity Protection

Article 239 of the Substantive Labour Code establishes the prohibition of dismissing a pregnant woman unless the Ministry of Social Protection has authorised it. Maternity protection runs from the moment the woman notifies her employer until the child’s first three months of life. It results in the presumption of dismissal due to pregnancy, and therefore, as indicated, its ineffectiveness, which leads to reinstatement by warrant.

Paternity

The jurisprudence of the Constitutional Court created paternity protection, under which a working man cannot be fired when he is expecting a child and until the sixth month of the child's life. As a requirement for the protection to operate, the mother of the minor must be affiliated in the social security system as the worker's beneficiary and not have a current employment relationship.

Job Stability Reinforced by Health

Act 361 of 1997, called the Clopatofsky Law, prohibited the dismissal of disabled persons without authorisation from the Ministry of Labour, under penalty of declaring the termination ineffective and the employer being obliged to reinstate the employee and to pay compensation of 180 days of wages. The Constitutional Court extended the protection to people who have not yet been declared to have a work capacity loss, but who suffer from health problems; calling such situation a "state of manifest weakness".

Unfortunately, the positions of the Constitutional and Justice Courts on the subject do not coincide, because for the former, protection operates with evidence of the worker’s health problems because they are in a state of manifest weakness, while for the Supreme Court, the protection only operates with respect to people who, with a current employment contract, have been declared to have a work capacity loss of 15% or more.

Pre-pensioned

This is also a protection created through jurisprudence that prevents the termination of a contract of an employee who has three years to retire and whose only income is the wages.

The protection is easy to apply for members of the Colpensiones, the public pension fund, in which the requirements to retire are related to age and payments (62 years for men, 57 for women and with a minimum payment of 1,300 weeks). But it is not for those affiliated to the private social security pension system, in which the requirement to retire is to have sufficient capital to allow a pension allowance of 110% of a minimum wage.

In this regard, the Constitutional Court, in Ruling T – 055 of 2020, stated that the private regime presumes that a person acquires the right to retire when they meet the minimum requirements for a guaranteed pension, which corresponds to 62 years for men, 57 years for women and 1,150 weeks.

Likewise, the Constitutional Court, in Ruling SU – 003 of 2018, indicated that when the only thing that is needed to retire is paid weeks, which implies that one is of age, the pre-pensioner protection does not apply, because there would be no access to the pension, as the age criterion would be satisfied regardless of whether there is a current employment contract.

Trade Union Protection

Those who occupy positions on the board of directors of a trade union (five principals and five alternates) cannot be fired, transferred or demoted in their conditions, unless there is judicial authorisation to do so.

The two members of the trade union's claims commission also enjoy this protection.

The protection lasts for the duration of the mandate and six more months.

The dismissal of any of the persons indicated above, and ignoring the protection, will give rise to reinstatement.

Claims for Lay-Offs

Claims for the termination of the employment contract are presented depending on the way the job relation ends. Thus, the claims could be presented alleging:

  • that there were no grounds for the dismissal;
  • that the formalities of the grounds that generated the separation were omitted, such as having omitted a disciplinary procedure provided for in the convention or in the internal work regulations; in that case, the argument of the claim would be the violation of due process and the right to defence; or
  • if any legal protection that the worker has was ignored, such as being pre-pensioned, a trade union leader, taking maternity leave or any of the protections mentioned above.

Effects of the Claim for Illegal Separation

If a claim is appropriate, legal compensation for dismissal without grounds may apply, or the worker would be reinstated if, as a consequence, the formalities for retirement are not observed, as, for example, in the case of the dismissal of a pregnant woman worker, or of a worker under health-related protection, or of a trade union leader dismissed without authorisation of a judge of the Republic.

Work Discrimination

Workplace harassment

Discrimination is a form of workplace harassment, regulated in Act 1010 of 2006. Paragraph 3 of Article 2 defines workplace harassment as "differential treatment for reasons of race, gender, age, family or national origin, creed, political preference or social situation, that lacks all reasonableness from a labour perspective."

Act 1010 of 2006, called the Workplace Harassment Act, as well as Resolutions 734 of 2006, 652 of 2012 and No 1356 of 2012, establish that companies must create mechanisms that promote working in dignified and fair conditions, harmony between the employees, a good environment, the defence of the workers’ dignity and honour, and prevent and correct workplace harassment. For the above, a company must create a Coexistence Committee in charge of executing policies that battle workplace harassment, as well as investigate any complaints filed.

Thus, when a worker considers that they are a victim of workplace discrimination, they must present such a fact before the Committee, so that the pertinent corrective measures can be taken.

If the Committee is not activated or the worker considers that the measures adopted were not effective, the contract could be terminated for reasons attributable to the employer and afterwards the case will be presented to a labour judge.

Under Act 1010 of 2006, a worker can claim payment for damages that are provable during the process, as a victim of workplace harassment.

Burden of proof

Said right can be defended to the extent that it is proven. Thus, whoever claims to be a victim of discrimination must prove it. If the person can prove the existence of behaviours that violate their political position, gender, religion, race, age or social condition, said person could obtain a resolution favourable to their interests.

Relief

Whomsoever files a workplace harassment complaint before a labour judge can make the alleged harasser and the company that tolerated such a conduct be fined. Additionally, it is possible to obtain severance payments for wrongful dismissal after having resigned for reasons that are attributable to the employer.

Additionally, if a person has filed a workplace discrimination complaint before the Coexistence Committee, and is fired within six months, they could claim reinstatement.

Likewise, the employee who is the object of discrimination could request damage payments due to workplace harassment, if such damages are proven.

Wage inequality

Act 1429 of 2011 prohibited any differential wages for reasons of gender or sex. Likewise, Article 143 of the Substantive Labour Code sets forth the principle of "equal work, equal wage".

A worker who considers that they are being discriminated against in remuneration can go before a labour judge in order to correct said inequality.

Burden of proof

The aforementioned Article 143 of the Substantive Labour Code also states that the employer must justify the wage difference, which means that the burden of proof is the employer's responsibility.

Relief

In claims related to wage inequality, a person can obtain a wage increase, the reinstatement of labour rights, including contributions to social security, as well as moratorium compensation for non-payment of full severance pay, in accordance with the provisions of Article 99 of Act 50 of 1990, at the rate of one day's salary for each day of late payment.

Ordinary Labour Jurisdiction

In Colombia there is a special labour jurisdiction, which is in charge of knowing the conflicts that derive from labour relations and social security.

The Labour Procedure Code regulates aspects such as competition and the jurisdiction responsible for dealing with labour disputes, as well as the applicable procedures.

Class Actions

in Colombia it is possible to present class actions under the provisions of Article 88 of the Constitution as a mechanism to protect the rights and interests related to property, space, security and public health, administrative morals, environment, and free economic competition. In labour matters, it is not possible to file class actions.

Judicial Representation

Article 229 of the Political Constitution and Article 73 of the General Code of Procedure establish that when a person must appear at a judicial process, they must do so with a lawyer, except in cases where it is not expressly required.

Arbitration

In individual labour law

Article 51 of Act 712 of 2001 establishes that an arbitration clause is viable as long as it is recorded in a collective contract or agreement. Therefore, it is not possible to agree to one in an individual employment contract.

The purpose of the arbitration clause is to submit the decision of a future dispute to an arbitral tribunal.

The arbitration clause, on the other hand, is an agreement to submit an existing conflict to an arbitral tribunal for a decision. It is valid when the parties have agreed in a document.

In collective labour law

This occurs when the trade union and the company cannot agree when undersigning a collective bargaining agreement in the direct settlement stage, in the following cases:

  • in conflicts in essential public service companies;
  • when the workers of a company decide it in general assembly; and
  • when there is a collective bargaining process for a minority union and the majority of the workers decide not to go on strike.

The Constitutional Court, in judgment C – 089 of 2002, ruled that the legal representation costs are the compensation for the representation expenses incurred by the person who wins in court. For their determination, two criteria must be taken into account:

  • the objective one; that is, the quantification of the conviction; and
  • the subjective one, which is related to the nature of the process and the management carried out by the parties.

As for the objective criterion, it must be clarified that Agreement PSAA 16 – 10554 of 2016, issued by the Superior Council of the Judiciary, regulated the valuation of the percentages for the payment of legal representation costs.

Escandón Abogados

Calle 87 # 10 – 93 Of 702
Bogotá
Colombia

+57 1 390 4480 / 390 4471

mcescandon@escandonabogados.com www.escandonabogados.com
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Law and Practice

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Escandón Abogados is a law firm specialised in employment and labour law, dedicated exclusively to providing legal advice to companies. The firm's broad experience in preventative consultancy, collective bargaining procedures, litigation, strategic planning and redundancy plans, among other aspects, has led it to be recognised as one of the leading firms in business advice in Colombia. Aware of the importance that human capital represents to companies, as the engine for their productivity, and the correct application of the labour and employment regimen, the firm offers integral advice in legal representation before court, as well as administrative hearings before the Ministry of Labour and different government authorities related to labour and employment. The firm's reputation is founded on the quality of its service and personalised attention to its clients.

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