Parra Rodríguez Abogados S.A.S.

1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

Labour Courts and Tribunals, and the Labour Chamber of the Supreme Court have exclusive jurisdiction over labour law claims.

Some procedures such as dismissal permits, and extrajudicial conciliations must be carried out before the Ministry of Labor.


The Main Sources Of Employment Law

The main sources of employment law are the National Constitution, ILO Conventions, labour contracts, Collective Bargaining Agreements; Internal Working Rules; Colombian Labour Code; Colombian Procedural Labour and Social Security Code; and Court Decisions.

The concepts and circulars of the Ministry of Labour constitute an important source for the interpretation of labour regulations.


National Law And Employees Working For Foreign Companies

Colombian labour law applies to national or foreign residents working in Colombia.

A person is considered a Colombian resident when he or she has the intention to settle down in Colombia.


National Law And Employees Of National Companies Working In Another Jurisdiction

The law governing the labour relationship will be determined by the place of residency of the employee, as well as by the place where the orders and instructions are given by the employer. Colombian labour law will not apply to employees of Colombian companies working and having established their residency abroad.


Data privacy

The protection of workers' data is regulated in Law 1581 of 2012. The employer must request authorization from the employees to process their data. Besides, the employer has a duty of confidentiality.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

Employment contracts can be written or verbal. The parties of an employment contract may agree on additional rights and obligations, but they must comply with statutory obligations; the type of contract, description of the nature and place of work, the amount and manner of compensation (for example, the unit of time, work performed, piece work, etc.), the frequency of wage or salary payments, and the benefits provided to the employee, the domicile of the parties, the date and place where the contract is executed, and the place where the employee is hired.


Mandatory Requirements
  • Trial Period

    • The parties may agree in the employment contract a trial period, during which the employer may assess the aptitude of the employee, and the employee may assess the conditions of work.

    Either party may terminate the employment contract during the trial period without notice.

    The trial period must be established in a written agreement between the parties.

    For employees hired for an indefinite term, the trial period may not exceed two months. For employees hired for a fixed term, the trial period may not exceed the fifth part of the contract’s duration, and in any case, may not exceed two months.

    The Colombian Constitutional Court has stated in its rulings that the employer party should make an objective analysis of the inconsistencies, inabilities, and/or failures of the Employee before using the legal faculty of the trial period and terminating the employment contract unilaterally.

  • Hours Of Work

    • The working schedule may be agreed by the parties. If the parties fail to agree the daily shift, Colombian labor law establishes a maximum working schedule of (i) eight daily hours: or (ii) forty-eight weekly hours.

    The daily working shift goes from 6 a.m. to 9 p.m. The nightly working shift goes from 9 p.m. to 6 a.m.

    The following employees are excluded from the daily working shift hours (i) executive, management and/or trust positions; and (ii) security guards that live in the workplace.

    Employers and employees may freely agree on the working shifts in accordance with the ones established in the law.

    Overtimes are the amount of working time that exceeds the ordinary working shift of the maximum legal shift. Overtime is limited to a maximum of two daily hours and twelve a week.

    If the working hours exceed the maximum working schedule, the employer must request authorization from the Colombian Ministry of Labour.

    Employees are obliged to keep a record of (i) the name of the employee; (ii) the number of authorized extra hours; and (iii)of the salary basis.

    The forty-eight-hour workweek is usually worked in six eight-hour days, although a long workday with Saturdays off is not uncommon.

    Rest periods are required during the day, but a two-hour lunch usually satisfies this requirement. The rest periods are not included as part of the workday for purposes of calculating wages.

    Due to the health emergency, many employees are working at home. Work at home does not change the working schedule.

    The limits are maintained; therefore, parties must respect the previously agreed working schedule, maintain "regular workload" and "digital disconnect."

  • Rules during Health Emergency

    • The health emergency was decreed until May 31, 2021.

    During the health emergency the employer can:

      1. Distribute the 48 hours a week in a maximum of six (6) days, with daily shifts of at least 4 hours and 10 hours.
      2. Distribute the forty-eight 48 hours a week on four days a week, with 12-hour daily shifts. In this case, overtime will only be generated when the employee works more than 12 hours.

    During the Sanitary Emergency, the employer was authorized to organize the work schedule by work shifts as follows:

      1. A working day of maximum 36 hours per week, distributed over 6 days of the week with daily 6-hour working hours;
      2. Distributing the same 36 hours per week in shifts of 8 hours a day for 4 days, and one day with a 4-hour shift.

    In these cases, overtime or Sunday hours are not paid.

  • Special Rules For Part-time Work

    • Part-time work must be agreed in writing. Part-time employees have the same rights as full-time employees. Part-time employees can perform over time.

    The part-time employment contract can be converted to a full-time contract.

  • Earnings

    • Colombia enforces a national minimum monthly salary, which is established each year by the National Labor Council or by the government. The parties may agree upon a salary stated in foreign currency instead of Colombian pesos, but the salary must be paid in Colombian currency. If the salary is stated in foreign currency, the employee may require payment at the exchange rate for Colombian pesos on the day of payment.

    According to Colombian law, there are two types of salaries:

      1. Ordinary: An ordinary salary remunerates the regular work. In addition to regular pay, the employee may receive, when applicable, (i) overtime pay;(ii) pay for work on mandatory rest days; (iii) percentage on sales and commissions; (iv) habitual bonuses such as the ones determined by the employee´s performance; (v) permanent travel expenses for employee’s meals and lodging, and (vi) in general, any payment made as direct compensation of the employee’s services.
      2. Integral / All- Inclusive Salary: Pays beforehand any surcharges and fringe benefits such as severance and their corresponding interests, service bonuses, extra-legal premiums, overtime pay, pay for work on mandatory rest days, the wage incidence of traveling expenses, provisions in kind, and generally all fringe benefits; except vacations.

      The integral salary arrangement must be stated in writing. Additionally, it only applies to employees that earn at least thirteen legal minimum monthly wages.

    Integral Salary (i) must be agreed by writing, (ii) only applies to employees that earn at least thirteen legal minimum monthly wages, and (iii) social security payments will only be charged over 70% of the salary, iv) Vacations shall be calculated taking into account the 100% of the all-inclusive salary.

    Besides, employees who earn an ordinary salary are entitled to the following payments:

      1. Severance aid: Employers must make an annual direct deposit to a severance fund on behalf of every employee, equivalent to one (1) monthly salary for every year of service and proportionally for a fraction thereof. This deposit must be made in the corresponding fund chosen by the employee, before February 14 of the following year.

        2. There is a possibility that the employer performs severance aid partial payment in the events established under a law that in any case requires an authorization issued by the Ministry of Labour.

      2. Interests on Severance Aid: Interests related to severance aid payments are paid at a rate of 12% per year.
      3. Services Bonus: It is equivalent to a 15 working day wage, and it is paid on a semi-annual basis. Payments related to this bonus must be paid no later than June 30 and December 20 of each year.
      4. Dress and footwear: It is comprised of one (1) pair of shoes and one (1) work outfit to be provided at least three (3) times per year to every employee, in accordance with the task to be performed (no later than April 30, August 31 and December 20). Employees entitled to this benefit are those who earn up to two (2) times the el MLMW and that have been employed for at least three months.
  • Holidays/Rest Periods

    • All employees are entitled to a paid annual leave equivalent to fifteen (15) working days for each year of service and proportionally for any portion thereof. Every employee must enjoy at least six (6) continuous days of holidays per year. According to Article 190 of the Colombian Labor Code, employees may only accumulate the remaining days of up to two (2) years, and in some special and concrete cases accumulate and carry over the time for up to four (4) years.

    The employer is obliged to grant a weekly day-off for each one of its employees. Besides, the employer must grant a paid day off during religious or civil holidays established by law.

    The wage established for working on day-off is an additional 75% of the ordinary salary (and depends on the hours worked).

    The calculation of the working Sundays depends on whether the work is done on an occasional or habitual basis.

    The employer may grant collective and early vacation to mitigate the reduction in production and income or for isolation measures due to covid-19.

  • Minimum/Maximum Age

    • Minors over 15 years old can be hired, previous authorization from the Ministry of Labour. There are no restrictions on working after the normal retirement age.

  • Illness/Disability

    • Employees on sick leave have special protection. However, the leave has a maximum of 180 days renewable to another 180 days. After that time the employee must apply for a disability ruling.

    Labour agreements of personnel with a disability or during sick leave cannot be terminated without authorization from the Ministry of Labour.

    During sick leaves the employer must pay the employee’s salary as follows:

        - First two days are paid by the employer at 66,66%* of the employee’s salary

        - From day 3 to day 90 of sick leave the employer must pay 2/3* of the employee’s salary on the payroll and request the refund before the Health Care Provider.

        - From day 91 to day 180 of sick leave the employer must pay the 50%* of the employee’s salary on the payroll and request the refund before the Health Care Provider.

        - From day 181 onwards the pay will be made directly by the retirement fund.

      *In any case, the employee can receive less than a Minimum wage during the sick leave.

  • Illness/Disability by Covid-19

    • In case of disability due to Covid-19, the Health Care Provider must pay the value of the disability according to the rules indicated in the previous point.

    Now well, if the doctor considers that it is not necessary to issue a disability due to Covid-19, the employee must perform the duties working at home during the isolation.

    Covid-19 is considered a direct occupational illness for healthcare employees, including administrative, cleaning, security, and support employees for the prevention, diagnosis, and care of this disease.

  • Location Of Work/Mobility

    • Employees who earn less than two minimum legal monthly wage are entitled to receive transport aid. It is equivalent to a sum established by the Colombian Government for each year.

    Instead of paying the transportation allowance, an employer may provide daily transportation to the employees.

    In the events of illness leaves, holidays and licenses, there is no obligation for the employer to pay the transportation aid. This aid shall be included in the base to calculate and pay fringe benefits by express provision of law.

    Furthermore, in case the employer modifies the employee’s residency, it has to pay the travel expenses of the employee and his family.

  • Digital connectivity aid

    • During the Covid-19 emergency, employees who earn less than two minimum legal monthly wages and work at home are entitled to receive a digital connectivity aid.

    Digital connectivity aid is equivalent to a sum established each year by the Colombian Government for transportation aid.

    The transportation aid and the digital connectivity aid are not cumulative.

  • Pension Plans

    • Colombian Social Security System has three different types of pensions: (i) retirement pension; (ii) disability pension; and (iii) survivors’ pension.

    Regarding retirement pensions, there are two regimes. The public regime, in which retirement age is 57 years for women and 62 years for men, and 1300 weeks of contributions. The private regime is managed by private pension funds management companies, which does not set forth a specific age for retirement. In this case, retirement depends on the amount saved in the workers account.

    Employee are entitled to a disability pension when he/she lose 50% or more of his working capacity.

    Survivors pension is recognized to the employee’s family members who are beneficiaries according to the social security laws.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • Every pregnant or adoptive mother is entitled to eighteen (18) weeks of paid leave which can begin two (2) weeks prior to the anticipated date of birth. Of the eighteen (18) weeks of paid leave, the week prior to the anticipated date of birth is mandatory. For multiple pregnancies, the paid leave entitlement is twenty (20) weeks. Maternity leave is paid by the Social Security System, provided that the employee has been enrolled during the time of the pregnancy.

    Maternity leave is 20 weeks when there are multiple births.

    If the birth is advanced, the advanced are added to the license.

    Paternity leave is 8 working days after the birth of the child.

    During paternity and maternity leave labour agreement cannot be terminated, unless there is an authorization from the Ministry of Labour.

    The license also exists for adopters and homosexual couples.

    Pregnant women are also entitled to special protection; their agreement cannot be terminated unless there is special permission from the Ministry of Labour.

  • Compulsory Terms

    • There are no compulsory terms established by Colombian law.

  • Non-Compulsory Terms

    • Parties are free to agree on non-compulsory terms, provided these provisions are not less favorable to employee than the law or the relevant Collective Bargaining Agreement.


Types Of Agreement

The following are the different types of employment contracts:

    1. Fixed-term Contract: must be in writing and must set forth the length of employment. Although there is no minimum duration for a fixed-term contract, the maximum duration of such a contract is three years. Generally, a fixed-term contract may be renewed any number of times. On its expiration, a fixed-term contract is automatically renewed for a term equal to the original term, unless the employer or the employee gives the other party thirty days’ notice of termination of the contract or renewal under different terms.
    2. Indefinite Term Contract: Is used to hire personnel for an extended period providing the employee the greatest sense of job security. A term is not specified, and its duration is not determined by the task or the nature of the job contracted, nor does it refer to an occasional or temporary job. The employer can only cancel this contract if there is just cause defined by the law.
    3. Temporary Contract: Written contracts are also required for temporary or casual employment. This type of employment encompasses occasional or temporary work done outside the normal course of the employer’s business. The maximum term for a contract of temporary or casual employment is one month; the temporary contract would then need to be renewed.
    4. For the duration of the work or hired service: The term of this contract depends on the duration of a determined work or task. It is required that the work or task contracted to be precisely described, so the contract must be to be agreed in writing. These types of contracts cannot be renewed.

A temporary contract can be cancelled at any time without any required explanation, but an indemnification for termination without just cause must be paid to the employee.


Secrecy/Confidentiality

Employees are required to maintain confidentiality even if no express term is included in the contract.


Ownership of Inventions/Other Intellectual Property (IP) Rights

Intellectual property rights belong to employees unless the parties agree otherwise.


Pre-Employment Considerations

Before hiring an employee, it is important for the employer to verify whether the employee could have enhanced job stability.

Besides, the employee must undergo a medical examination to rule out illnesses that prevent him from performing the job for which he will be hired.


Hiring Non-Nationals

Foreign employees have the same rights and obligations as Colombian employees. However, when foreign nationals celebrate an employment contract in Colombia, both the employer and the employee must also meet additional requirements relating to immigration procedures and the control of foreign nationals during their stay in Colombia (i.e. a Migrant visa).

Furthermore, the employee must report the employment related to the Migration Colombia office, through the Foreign Report Information System (Sistema de Información para el Reporte de Extranjeros – SIRE - in Spanish) and before the Ministry of Labour, by the Single Registry of Foreign Workers (RUTEC).


Hiring Specified Categories Of Individuals

Authorization from the Ministry of Labour is required to hire employees under 18 years of age. Additionally, women and employees under 18 years of age are neither allowed to work at night nor in certain dangerous activities. For telecommuting employees, the employer must proceed with the registry of those agreements in the Ministry of Labour.

Now well, during the covid-19 emergency, employees who work at home must keep the conditions of the employment contract and are not considered as telecommuters.

The maximum working schedule for work at home is 8 hours per day and 48 hours per week. Furthermore, overtime must not exceed 2 hours per day and 12 hours per week and the employer must recognize the payment of overtime and surcharges on Sundays and holidays.

The employer should not send assignments on weekends or days off. Also, the employer must respect established breaks such as breastfeeding breaks.

The employer must include telecommuting among the occupational risks.


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

Sub-contracted employees should have the same treatment as ordinary employees. Outsourcing employees can only be hired to perform extraordinary activities and for a maximum of 1 year.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

The parties are free to modify the contract. However, contracts cannot be changed unilaterally by any of the parties. For this purpose, mutual consent is required.


Change In Ownership Of The Business

Labour contracts are not transferred automatically to the new owner.

In case there is a change in the ownership of the business, labour contracts can be (i) definitively terminated (in this case authorization from the Ministry of Labour is required); (ii) terminated to be replaced by a new contract with the new owner or (iii) transferred unmodified to the new owner.

If their contracts are terminated due to the change in the ownership, this would not just cause according to Labour Code, thus employees must be compensated.


Social Security Contributions

There are compulsory contributions to the social security system by employer and employee, as follows:

    1. The Healthcare system equals 12.5% of the salary, of which the employer must assume 8.5% and the employee 4%.
    2. For employees who earn less than 10 minimum legal monthly wages, the employer is exempt from paying 8.5%.
    3. Pension system: equal to 16% of the salary, of which the employer must assume 12%, and the employee 4%. If the salary exceeds an amount equal to 4 minimum legal wages, the employee must pay an additional 1 to 2%.
    4. The labour risks payment is assumed entirely by the employer, and ranges the 0.522% and 6.960% of the salary, depending on the type of risk where the company is classified.
    5. Payroll Taxes: Employers who have more than one permanent employee are required to make additional payments to the Colombian Institute of Family Welfare (ICBF in Spanish), to the National Apprenticeship Service (SENA in Spanish), and the Family Compensation Funds (CCF in Spanish) equal to 9%.

The base to calculate the contributions to the Integral Social Security System cannot exceed the amount equivalent to 25 monthly minimum legal wages. In the cases of integral salary, the mentioned percentages are applied over 70% of the employee’s remuneration.

Employers that fail to comply with the obligations set forth under the Integral Social Security System regulations will be liable, and thus, must (i) cover any risks; (ii) make delay contribution payments, together with the corresponding interests; and (iii) pay any penalties set out by the Colombian Ministry of Labour, as well as any other social security authorities.


Accidents At Work

Accidents at work are assumed by the labour risks insurance to which the employees are affiliated to. For the labour risks manager to make the relevant payments that the employees are entitled after a working accident occurs, the employer has to report the accident to the entity and must have paid all labour risks contributions due to the date of the accident.

Employees who have had accidents at work are entitled to have a disability leave until they recover from the harm caused by the accident. In case the accident causes the employee a disability equal to or more than 50% of his working capability, the employee will be entitled to a disability pension according to labour risks laws. In case of death, employee beneficiaries will be entitled to a survivor’s pension.

Employers that fail to comply with affiliation and contribution payments to the labour risks system will be liable, and thus, must cover all risks and relevant payments.

On the other hand, Covid-19 is considered a direct occupational illness for healthcare employees, including administrative, cleaning, security, and support employees for the prevention, diagnosis, and care of this disease.


Discipline And Grievance

To impose disciplinary measures on the employee, the employer must follow a disciplinary procedure granting the employee’s right of defense.

In this sense, the employee must verify the employee’s breach of his/her labour obligations in a discharges hearing made to the employee. Afterward, according to employees’ explanations, the employer may impose reasonable sanctions to the breach outlined in the Internal Working Rules.

Besides, grievance or complaints from the employee must be made to the coexistence committee, for the latter to make the relevant investigation and take the relevant measures.


Harassment/Discrimination/Equal pay

The Labour Code includes a non-discrimination principle according to which no distinction should be made because of the type of work performed, or the salary earned. Additionally, the National Constitution includes a prohibition concerning discrimination based on gender, race, origin, language, religion, and political or philosophical opinions.

Furthermore, labour law rules labour harassment, establishing preventive, corrective, and sanctioning measures.


Compulsory Training Obligations

There are no compulsory training obligations for the employer.


Offsetting Earnings

Offsetting earnings are limited by law. For social security, contributions cannot exceed 40% of the total earnings of the employee.

Salary paid in kind cannot exceed 50% of the total salary.


Payments For Maternity And Disability Leave

Disability, maternity, and paternity leave payments are assumed by the healthcare entity to which the employee is affiliated at the time of the leave.

For maternity and paternity leaves, the payment is equal to the salary basis of the contributions made to the healthcare system by the employee.

Disability leave payment is equal to 2/3 of basic salary for the first 90 days of working inability. After the first 90 days of working inability, the disability leave payment is equal to 1/2 of the salary basis. If the disability is caused by a work accident or disease, the payment is equal to the salary earned by the employee.

The maximum period for disability leave is 540 days. If the disability is caused by a working accident or disease the maximum period will be 720 days. Before the expiration of any of the above periods, the pension fund or the labour risk fund must evaluate if the employee fulfils the requirements for a disability pension. If not, the employee must reincorporate himself/herself Into the job. In this case, the employer must adjust the working environment so the employee can develop his/her tasks according to the disability.


Compulsory Insurance

Employers must affiliate their employees to the labour risks system to insure them against death or illness caused while working.


Absence For Military Or Public Service Duties

In case the employee is required for military or public services duties, the labour contract has to be suspended during the military or public services term. The Employee may return within the next 30 days after the military or public service duties are finished.


Works Councils or Trade Unions

To operate, work councils or trade unions require a minimum of 25 members. On the initial meeting of incorporation of any union, an “incorporation minutes” must be entered into among the founders, in which their name, identity cards, and the purpose of the association are provided. Every union must be registered with the Ministry of Labour.


Employees’ Right To Strike

The Constitutional Court has recognized the importance of the right to strike as a valid mechanism to achieve a major balance and justice in the labour relationships. Although it is not a constitutional right, it can reach said nature when it violates the constitutional rights to work and union association. The right to strike can only be excluded in the events of essential public services. Therefore, it is not an absolute right, its limitation only proceeds in the event of essential public services.

The right to strike allows the employees to suspend or cease work as a mechanism for pressuring the employers to solve the collective work dispute in favour of the employees’ interests.


Employees On Strike

Employees on strike do not have labour privileges, unless for the following members of trade unions, who are protected for a limited period in which event employers would require a judicial authorization to cancel the labour agreement:

    1. Union founders, who are privileged for 2 months after the union’s registration, in any case without exceeding 6 months.
    2. Employees who join the union before its registration with the Ministry of Labour, who have the same privilege period for founders.
    3. Members of the union’s board of directors, who are privileged during the period appointed as a member.
    4. Two members of the grievance committee.

Employers’ Responsibility For Actions Of Their Employees

Employers are responsible for the actions of their employees, except when the employee acted beyond the scope of his/her duties.

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

Colombian law establishes strong job-security protections that limit the circumstances in which an employee may be terminated and create financial disincentives to dismissals that do not satisfy those legal grounds. Labour Code draws a difference between fair and unfair termination although different rules apply to each form of termination. In any case, employers must give to employees a liquidation sheet including a reference of the amounts due and payable upon termination.

In Colombia, an employment contract may terminate for any of the following reasons:

  • Death of the employee.
  • Mutual agreement.
  • Expiration of the agreed term of the employment.
  • Completion of the activity or work for which the contract was made.
  • Liquidation or closure of the company.
  • Suspension of activities by the employer for more than 120 days with prior authorization from the Ministry of Labour.

The occurrence of an event that is legally recognized as a due cause for termination.

    Besides, the Colombian Labor Code identifies the following circumstances constituting just cause for the unilateral termination of the labour agreement by the employer:

  • An employee’s falsification of documents to obtain an unmerited advantage.
  • Any act of violence, insult, ill-treatment, or lack of discipline by the worker against the employer, members of the employer’s family, directors of the enterprise, or co-workers.
  • Intentionally causing material damage to the employer’s property.
  • Serious negligence involving danger to the safety of persons or things.
  • Immoral or unlawful acts by an employee in the workplace.
  • Revealing technical or commercial secrets or disclosing confidential matters that damage the employer.

    •  

    Inadequate job performance, taking into consideration the ability of the employee, the average efficiency of employees in similar jobs, and the employee’s failure to remedy the inadequate performance within a reasonable time after being formally warned by the employer.

    Any habitual vice of the employee that impairs discipline in the workplace.

    Some of the examples of due cause identified in the Labour Code allow an employer to terminate the offending employee’s labor agreement immediately. Others, however, permit termination only after the employer has given fifteen days advance notice of termination. In all cases of termination for due cause, the reasons for termination must be outlined in a letter of notification, that includes information describing the events constituting due cause.

    When the dismissal obeys to any of the just causes above mentioned, the employer must follow a disciplinary procedure, but no compensation is paid to the employee.

    The Colombian Constitutional Court has recently unified its jurisprudence, pointing out that before dismissing an employee for any just cause, the employer must guarantee the right to be heard.

    In fixed-term employment contracts, the employer must give 30 days' notice.


Instant Dismissal

When the termination of the labor agreement is an unilateral decision of the employer, the latter must (i) notify by writing the termination; (ii) pay the corresponding legal indemnification, that will vary depending on the time worked and the salary, as follows:


    Salary Term Indemnification
    Less than 10 minimum legal monthly wages Less than 1 year 30 Days
    More than 1 year 30 Days for the first year if service, and 20 days for each of the following years
    More than 10 minimum legal monthly wages Less than 1 year 30 Days
    More than 1 year 30 Days for the first year if service, and 20 days for each of the following years


In fix-term labor agreements, the indemnification will be equal to the sum of the monthly salaries that would have been caused until the end of the term of the agreement.

For specific work or task, labor agreements will be equal to the sum of the monthly salaries that would have been caused until the end of work or task, but under no circumstance, it may be less than 15 days.

The Labour Code identifies the following circumstances constituting just cause or the unilateral termination of the labor agreement by the employee, entitling them to receive the relevant compensation payment:


  • Having been deceived by the employer regarding employment conditions.
  • Any act of violence, insult, ill-treatment, or lack of discipline by the worker against the employee, his/her family members by the employer or its representatives.
  • Any act from the employer or its representatives that leads the employee to perform an illegal act or act against their political or religious beliefs.
  • Any circumstance that cannot have been foreseen by the employee may risk their health or safety.
  • Any damage caused intentionally by the employer.
  • Employer’s continuous breach of its labour obligations.

Employer’s demand, without a valid reason, to render employee’s services in a different place to the one agreed.


Employee's Resignation

There are no special requirements for an employee’s resignation.


Termination On Notice

Employers may terminate fixed-term contracts on a minimum 30 days notice before the expiration of the contract’s term and without having to compensate the employee. Additionally, a 15 days notice must be given by employers when terminating the contract for certain just causes as set out in the Labour Code.


Termination By Reason Of The Employee's Age

Labour Code provides retirement age as a just cause of termination of the labour contract. The retirement age is 62 for men and 57 for women. Yet, this just cause can only be applicable when the employee receives the retirement allowance.


Automatic Termination In Cases Of Force Majeure

In cases of force majeure, the agreement cannot be terminated. It will be automatically suspended, except in the event of the employee’s death or where there is a total cessation of the employer’s activities.


Collective Dismissals

There is collective dismissal when, within 6 months, employees linked by employment contract are affected as follows:


    Number of employees Dismissals percent
    11-49 30%
    50-99 20%
    100-199 15%
    200-499 9%
    500-999 7%
    1,000+ 5%


To make collective dismissal the employer must request authorization from the Ministry of Labor, explain the causes and inform the employees.


Termination By Parties’ Agreement

Labour contract can be terminated by mutual consent of the parties.


Directors Or Other Senior Officers

There are no special rules for hiring or firing directors or other senior officers.


Special Rules For Categories Of Employee

Labour privileges for special personnel are provided by law. Authorization from the Ministry of Labour is required when terminating the following labour contracts:

  • Personnel with disabilities
  • Employees on maternity/paternity leave.
  • Pregnant women.
  • Union members expressly privileged by law.
  • People who reported workplace harassment.

In addition, the Supreme Court established other categories of employees that have job stability:

  • Mothers/Parents/head of household
  • People close to pension.

Whistleblower Laws

Whistle-blower of workplace harassment has job stability.


Specific Rules For Companies in Financial Difficulties

Labour and tax payments prevail over any other type of debt or payment obligation. Contracts might be terminated subject to compensation of the employees.


Special Rules For Garden Leave

In Colombia, garden-leave does not exist. When an employee loses his job, he can withdraw his severance aid from the Severance Aid Funds.


Restricting Future Activities

Labour law prohibits restricting future activities by the employee. Any agreement entered between the parties, or any employer demand restricting future activities is expressly forbidden. Thus, they are unenforceable, since they are against the constitutional right to work.


Severance Payments

One of the social benefits provided by law is the severance aid, under which employers must pay to employees one monthly salary per year of service or proportionally.

In addition, unfair dismissals must be compensated according to the type of contract, length of service and the employee’s salary.


Special Tax Provisions And Severance Payments

When the employee’s salary exceeds 10 minimum monthly wages, a 20% tax rate will apply to the indemnification payment.


Allowances Payable To Employees After Termination

Employers are not required to make any allowances payments to employees after termination.


Time Limits For Claims Following Termination

Colombian labour statute of limitations is for three years following termination. However, such statute does not apply for the right of the employee to the pension allowance, which can be claimed at any time.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

No specific matters apply to Colombian jurisdiction, different from those mentioned above.



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Contact a Contributing Author:
Álvaro Parra Gómez
Parra Rodríguez Abogados S.A.S.
Colombia


Bernardo Rodríguez Ossa
Parra Rodríguez Abogados S.A.S.
Colombia


Nataly Traslaviña González
Parra Rodríguez Abogados S.A.S.
Colombia


Disclaimer:

© 2021, Parra Rodriguez Abogados S.A.S.. All rights reserved by Parra Rodriguez Abogados S.A.S. as author and the owner of the copyright in this chapter. Parra Rodriguez Abogados S.A.S. has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021