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An employer may apply the disciplinary sanction of dismissal in two cases:
The Labor Code does not specify the criteria for assessing the gravity of misconduct. In this context, the seriousness of the violation of obligations remains a situation of fact to be determined by the employer, according to the indications of Article 250 of the Code:
Compliance disciplinary dismissal procedure is vital because any procedural flaw could void, even if, in fact, the employee is guilty of misconduct.
Steps in the disciplinary dismissal procedure
If is find that the employee acted with guilt, the employer is required to conduct a preliminary research. The employer should summon the employee in writing, stating the time, date and place of meeting. In this the employee is entitled:
Listening and checking the employee’s defense is prerequisite which ends in practice by an explanatory note.
Basically, the investigation file contains the following documents:
If the employee is not present in the research, he shows, but refuses to motivate or defense, the evidences and justifications are not likely to decriminalize him, the employer may use the disciplinary termination of the labor contract.
Disciplinary dismissal decision will be issued in writing within 30 calendar days of the date on which the employer is aware of the offense having been committed and not to exceed 6 months from the occurrence of the event.
The decision shall be communicated to the employee personally, with signature of receipt or, in case of refusal of receipt, by registered mail to his residence, within 5 calendar days after issuance.
Mandatory content of the decision of disciplinary dismissal:
If the employee who has committed serious or repeated violations is on sick leave, he cannot be fired. Prohibition of dismissal operates even when sick leave has been granted on the day the dissolution of the labor contract.
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