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Due process and defence guarantee in terminations of the employment contract with a fair cause

Colombia´s Supreme Court reiterated their position in regards to the defence guarantee in those cases in which an employer terminates an employee´s contract with a fair cause, reminding that this measure is not considered as a disciplinary sanction, and therefore, it does not require to have the previous disciplinary procedure stated on Ruling C-593 of 2014, unless the Company has internal dispositions that stablish an specific previous procedure before deciding to terminate a contract with a fair cause.

RULING C-593 OF 2014: DUE PROCESS BEFORE IMPOSING A DISCIPLINARY SANCTION.

In 2014 Colombia´s Constitutional Court reviewed the constitutionality of article 115 of Colombian Labour Statute, which stablishes the previous procedure that must take place before imposing a disciplinary sanction to an employee, consisting of giving  the investigated employee the opportunity to be heard, and also be accompanied by 2 representatives of the Union (in case of unionized employees). In case a disciplinary action is imposed without guaranteeing this procedure, the sanction will be invalid.

Hence, even if the Constitutional Court declared that the aforementioned disposition is constitutional and valid, it stated that in regards to the due process constitutional guarantee, it is important to keep in mind that the procedure stablished on article 115 of Colombian Labour Statute must comply with all the guarantees that come from the due process rights, highlighting the following:

  • A formal communication in which the investigated employee is informed of the beginning of a disciplinary procedure regarding alleged breaches of the employment contract obligations.
  • A list of charges (informing the alleged obligations that were breached) that can be notified written or verbally as long as they state in a clear and precise way the possible disciplinary sanctions that the employee may be entitled to in case the presumed breaches are proven.
  • Notification and provision of all the evidence and proofs that support the alleged breaches.
  • The indication of a deadline for the investigated employee to present defence arguments, contradict evidence and present additionally evidence or proofs that are necessary to support his/her arguments.
  • The notification of the decision made by the Company, which must be motivated and sustained.
  • The imposed disciplinary sanction must be proportional to the facts and breaches that generated it.
  • Give the investigated employee an opportunity to controvert the decision, which can be reviewed by a superior of the person who imposed the sanction in the first instance.

Therefore, it can be seen that before imposing a disciplinary sanction (such as suspensions of the contract or memorandums) it is necessary to have a previous disciplinary procedure in which the employee is notified of the beginning of this investigation, getting to know the facts why it started and the possible breaches of the employment contract, giving him//her the opportunity to know the evidence and proofs that the employer has in order to present his/her version of the facts and defence arguments, being able to bring additional evidence that can support the defence, and once this procedure takes place, the employer must study objectively all of the evidence and proofs in order to determine if a sanction can be imposed. Once a sanction is imposed, it is important to guarantee a second instance in which a superior will review the initial decision, in case the employee informs his inconformity and hence, requests for a review.

SUPREME COURT OF JUSTICE´S INTERPRETATION IN REGARDS TO TERMINATIONS WITH A FAIR CAUSE

Regarding ruling C-593 of 2014 and its dispositions related to the necessity to have a preliminary procedure before imposing a disciplinary sanction, the following question surfaced: are terminations with a fair cause considered as a disciplinary sanction? In order to answer this question, it is important to keep in mind that the Supreme Court of Justice has stated on many rulings (CJS CSJ SL 15245 of 2014, SL 670 of 2018 and SL 1077 of 2018) being the most recent one decision drafted on July 8 of 2020, that terminations with a fair cause are not considered as a “disciplinary action” and therefore, the preliminary disciplinary procedure stated on article 115 of Colombian Labour Statute and regulated by Ruling C593 of 2014 does not apply for this kind of terminations.

However, it is important to highlight that in those cases in which collective bargaining agreements, internal employee´s handbook, internal policies or other documents and internal dispositions that exist on a specific Company expressly state that before proceeding with a termination with a fair cause it is necessary to have a preliminary disciplinary investigation, the employer must comply with this previous procedure.

Also, the Supreme Court clarified that even if the elements stated on Ruling C-593 of 2014 do not apply in the case of a fair cause termination, considering the fact that it is not a disciplinary sanction, it does not mean that the employee won´t have an opportunity to present his/her defence arguments. That´s why, it is necessary that an employer has the support documents that show that before informing the employee the decision to terminate the employment contract with a fair cause, the employee was able to give his version of the facts that generated the termination.

In order to be clearer, down below we provide answers to specific questions regarding this subject:

1.Are terminations with a fair cause considered as a disciplinary sanction?

No, as the Supreme Court of Justice has stated, terminations with a fair cause are a faculty granted to employers by the labour regulations, that does not have the connotations of a disciplinary sanction.

However, as it was previously mentioned, it is important to remind that in those events in which an specific employee handbook of a Company, or dispositions of the employment contract expressly state that a termination with a fair cause is considered a disciplinary sanction, only in that case it is necessary to comply with a previous disciplinary process given the fact that the parties or the employer expressly catalogued this type of dismissals as a disciplinary sanction.

2.Is it necessary to have a preliminary disciplinary procedure before a termination with a fair cause?

Considering the fact that in general terms a termination with a fair cause does not have the connotations of a sanction, the employer is not obligated to hold a previous disciplinary investigation before deciding a termination, unless there are internal regulations that state that on the specific case of that Company it is necessary to have a preliminary procedure before a fair cause termination.

Therefore, it is important that before deciding to terminate an employment contract with a fair cause, each employer verifies if their internal handbooks, policies, contracts, agreements or other internal dispositions expressly state the need to have a preliminary procedure before a termination, and in case it is, this previous investigation must be held in order to avoid that in the future the employee pretends to discuss the legitimacy of the dismissal, claiming that the employer did not guarantee the right of defence by not complying with the internal preliminary procedures stablished on the Company´s internal regulations.

3.How can employers guarantee the defence right before proceeding with a termination with a fair cause?

As previously stated, despite the fact that the Supreme Court has said that considering the fact that a termination with a fair cause is not a disciplinary sanction, it does not require to have the preliminary procedure stated on articles 115 of Colombian Labour Statute and Ruling C-593 of 2014, it is important to keep in mind that it is necessary to guarantee the exercise of the “right of defence”, making it clear that as the Constitutional Court stated in their own word “the communication informing the employee that start of a disciplinary investigation is not the only way to guarantee the employee´s defence” which makes us see that the defence right is guaranteed when the employee has the opportunity to give his/her version of the facts in any way, in order to guarantee that the decision that the employee makes, takes into account the employee´s version (which can be provided verbally or through a written communication that does not require any formalities, unless the Company states an specific internal procedure).

Hence, we recommend that before deciding the termination of an employment contract with fair cause, despite the fact that the Company has all the evidence that motivates that decision, the Company must give the employee the opportunity to give his/her version of the facts and evidence, and therefore, it can be demonstrated that he/she was able to exercise the right of defence, which can be done verbally or written without any formalities, and without having to comply with the procedure stated on Ruling C-593 of 2014, in those cases in which the Company does not have an specific and formal preliminary procedure.

Finally, it is  important to highlight that the decision to terminate a contract with a fair cause, must be sustained and be in accordance to elements of proportionality (this means that the facts that support the decision must be relevant and severe to the point it is considered as a major offense) and immediacy (the decision must be related to recent events which consequence applies immediately) in order to avoid claims in which the employee pretends to question the legitimacy of the decision and therefore, pretends that a judge declares that in reality the termination was an unfair dismissal and therefore orders the payment of the correspondent severance package, which would generate a risk for the Company that would generate unplanned and additional costs.

Authors

Adriana-Escobar-CMS-Colombia
Adriana Escobar
Partner
Bogotá
Sandra Mora
Senior Associate
Bogotá