Labor laws were established to protect employees from wrongful termination or retaliation in the workplace. These laws were also established to protect the employer from lawsuits or other unlawful pursuits by a terminated or demoted employee.
Terminating an employee can be difficult, especially if they have been a loyal employee up to termination. When a decision to let the employee go has been made, you must act according to labor laws to protect your business. Here are ten steps to take when terminating an employee to comply with labor laws and protect your business.
- Verify effectively that the worker has committed a behavior that merits dismissal: Do not rush to decide as severe as dismissing a worker without employer responsibility. Take your time to investigate. Article 603 of the Labor Code establishes one month to dismiss the person who has incurred a fault from the commission of the facts or since the employer knew of them.
- Seek advice: Often, employers are condemned not for the absence of a fault that merits the dismissal but for how it is executed in the courts. Consult with professionals with experience in this type of process, which can adequately guide you on proceeding with the termination.
- The suspension of a worker while the facts are investigated must be paid: The labor courts’ jurisprudence has established that a worker’s suspension must be paid while investigating possible faults.
- Document the lack and investigation: Any worker can sue even when the fault committed is evident. Think about the possibility that your employee will take you to court, so you must adequately document the fault committed, and the internal investigation carried out. These documents can be decisive for a judge to give him the reason if litigation occurs.
- If you do not have to prove the fault, better dismissal with employer responsibility: Sometimes, it is not easy to establish a fault committed by a worker for multiple reasons. If this happens, it is better to dismiss employer responsibility.
Article 85 clause d) of the Code allows the termination of employment relationships by the sole will of the employer, without having to justify the reasons. In the long run, that may be simpler and cheaper than going to a trial and not being able to prove the fault because you may have to pay in addition to the extremes that the law orders, damages, and losses to your former employee.
- Deliver a detailed dismissal letter: According to articles 35 and 478 subsections 5) of the Labor Code, it is the employer’s responsibility to deliver the dismissal letter with a detailed, detailed, and precise description of the event or facts on which the dismissal is based. And it is up to him to prove, in possible litigation, that delivery. You cannot argue in a court other facts than those indicated in the letter.
- Consistently deliver the letter in the company of another person: It is common to hear employees at the trials saying they were forced to receive the letter or that the employer physically or verbally assaulted them when the dismissal was given. To avoid these situations, when delivering the letter, be accompanied by another person who can say, if necessary, what happened during the dismissal process.
- Deliver the letter to the Ministry of Labor if the employee refuses to receive it: In case the employee refuses to receive the letter, the employer must present it at the nearest Ministry of Labor and Social Security office, and if not It exists, send it by registered mail at the latest within the ten calendar days following the dismissal. Already the traditional practice of looking for two witnesses who give proof of the refusal to receive the letter is not valid.
- Comply with the authorization procedure before the Ministry of Labor if you will dismiss a person covered by a protection jurisdiction: There are categories of workers who are given special protection by the law. Among these categories are pregnant or lactating women, union representatives, minors, and complainants of sexual harassment.
The Code requires an administrative procedure of authorization to dismiss the employees covered by that jurisdiction for protection before the Ministry of Labor. If that authorization is unavailable, the dismissal is null, no matter how severe the fault has been committed.
- Pay the liquidation simultaneously as the dismissal or as soon as possible: If possible, have the liquidated employee’s list dismissed without the employer’s responsibility at the time of delivering the dismissal letter. In many companies, good looks and signatures are required to make payments, so try to manage those signatures as soon as possible internally. Prompt payment of the settlement helps reduce the possibility of a claim, although it does not prevent it altogether.
Ending a working relationship is complicated and traumatic. Therefore, it must be done in the best way. These tips can help in that challenging task.
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