Which issues would you most highlight to someone new to your country?
Angola is one of the main oil producers in sub-Saharan Africa. When the civil war ended in 2002, the national economy grew quickly, driven mainly by the development of the oil and gas and mining industries. However, the Angolan economy has become much more diversified and, as a result, the recent drop in the international crude oil price has not affected the country’s economic growth.
Due to the persistent crisis in the international crude oil sector, all sectors of the Angolan economy suffered a relevant contraction as of 2015 with a significant foreign exchange depreciation of its national currency (the kwanza). In December 2018 the government and the International Monetary Fund entered into a deal aimed at granting foreign exchange stability to the national economy and allowing for Angola’s re-entry to the international bond markets
Despite these economic constraints, Angola’s public institutions are generally able to deal with all issues. The labour authorities are particularly active in enforcing the complex administrative and reporting duties established by Angola’s national employment laws.
What do you consider unique to those doing business in your country?
Angola has numerous regulations governing all aspects of employment relationships. The most relevant regulation is the ‘Angolanisation’ principle, or the 70/30 rule. Under this principle, at least 70% of the company´s workforce must be Angolan nationals and only 30% can be foreign non-resident individuals. Foreign residents are treated as Angolan nationals for purposes of this rule.
Angolan employment law sets out two categories of employee:
- national and foreign resident employees; and
- foreign non-resident (or expatriate) employees, who are subject to complex immigration restrictions and specific recruitment and hiring rules.
There are also regulations concerning mandatory allowances and specific social security benefits (eg, the family allowance), which must be paid by employers in lieu of the social security system.
The General Labour Law (7/15) uses the concept of micro, small, medium and large-sized companies to differentiate the legal rules applicable to various aspects of employment relationships.
Is there any general advice you would give in the employment area?
Angolan employment law offers excellent protection to employees. Termination is subject to strict rules and an employee can be dismissed based only on serious disciplinary infringements or an objective, economic reason that is not the fault of the employer and which renders it impossible for the employment relationship to continue. Thus, employment litigation is common, as employees enjoy a broad set of rights.
In addition, a company’s human resources department must fulfil a large number of administrative and reporting duties. Failure to do so exposes the company to potential fines.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
New Regulations on the Hiring of Foreign Non-Resident Employees were approved in 2017 by Presidential Decree 43/17 of 6 March 2017. The new regulations revoked Decree 6/01 of 19 January 2001 and Decree 5/95 of 7 April 1995. The rules on the duration of fixed-term employment contracts and the remuneration paid to foreign non-resident employees have been successively amended.
As far as is known, the new legal framework is the outcome of different views on these topics from several authorities, most notably the Ministry of Mineral Resources and Petroleum, the Ministry of Employment, Public Administration and Social Security and the Angolan Central Bank and the Migration Services, which led to the enactment of Presidential Decree 79/17 of 24 April 2017 and Presidential Decree 151/17 of 4 July 2017.
The aim of the latest amendments appears to have been to:
- facilitate the entry of foreign non-resident employees into the country;
- prevent the outflow of foreign investment; and
- favour the training of national employees.
What are the emerging trends in employment law in your jurisdiction?
The General Labour Law uses the concept of micro, small, medium and large-sized companies to differentiate the legal rules applicable to various aspects of employment relationships. The law states that micro, small and medium-sized companies are subject to more flexible rules and more efficient and cost-effective work standards. For example, micro, small and medium-sized companies may enter into fixed-term employment contracts with a maximum duration of 10 years, unlike large-sized companies, which can enter into contracts of up to five years only.
The General Labour Law is also designed to reduce certain labour costs (eg, overtime premiums) and compensation in case of termination.
As for the new rules applicable to the hiring of foreign non-residents:
- there are no longer minimum and maximum terms applicable to employment contracts entered into with foreign non-residents;
- the employment contracts entered into with foreign non-residents are subject to two renewals; and
- the remuneration foreign non-residents receive can be defined and paid in any currency agreed by the parties.
The relevant devaluation of Angola’s national currency (the kwanza) has resulted in industrial action due to union claims of substantial loss of income as a result of inflation and the general increase of the cost of living, with some unions demanding that companies re-establish a salary policy based in US dollars or euros.
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
At present, the General Labour Law is the main statute that governs all aspects of employment relationships. There is also other derivative legislation on various lateral aspects of employment relationships.
The recruitment and hiring of foreign non-resident employees is subject to the following specific legislation:
- Regulations on the Hiring of Foreign Non-Resident Employees (Presidential Decree 43/17, as amended by Presidential Decree 79/17);
- the Visa Law (2/07); and
- the Visa Law Regulations (Presidential Decree 108/11 of 25 May 2011).
Collective labour law is governed by the following statutes:
- the Trade Union Law (21-C/92);
- the Law on the Right to Collective Bargaining (20-A/92); and
- the Strike Law (23/91).
Who do these cover, including categories of worker?
The General Labour Law applies to all categories of employee apart from:
- employees hired on a permanent basis by the diplomatic or consular representatives of other countries or at the service of international organisations who perform their activities within the scope of the Vienna Convention;
- members of cooperatives and non-governmental organisations whose employment is regulated by the organisation’s articles of association or, if there are none, by the Commercial Law;
- family employees;
- occasional employees;
- consultants and members of the administration or directorship bodies of companies or social organisations provided that they carry out only tasks that are inherent to such positions without any subordination pursuant to an employment contract; and
- public servants or employees who perform their professional activity within public, central or local administrations, a public institution or in another government agency.
Foreign non-resident employees are subject to specific statutes; however, the General Labour Law applies to them on a complementary basis.
Are there specific rules regarding employee/contractor classification?
Article 3.3 of the General Labour Law defines an ‘employment contract’ as:
a contract whereby an employee undertakes to make available his professional activity to an employer’s benefit, within its relevant organization and under its guidance and authority, in consideration for remuneration.
Article 3.27 defines ‘employee’ as follows:
Any natural person, national or foreign resident, who freely undertakes to make his professional activity available to an employer, in consideration for remuneration, within the employer’s organization and under its authority and guidance.
Under Article 1154 of the Civil Code, a ‘services agreement’ is the “agreement whereby one of the parties undertakes to make available the result of his/her intellectual or manual work, with or without pay”.
Must an employment contract be in writing?
No. However, certain types of employment contract (eg, fixed-term and training contracts) must be in writing.
Are any terms implied into employment contracts?
Yes. For example, employment contracts for an unlimited term are always subject to an implied probation period of 60 days.
Are mandatory arbitration/dispute resolution agreements enforceable?
Under the General Labour Law, agreements to arbitrate are valid and enforceable. However, all arbitration proceedings are subject to the procedural rules set out by the law. Conciliation and mediation proceedings are also possible before the General Inspectorate of Labour Services and the public attorney’s office.
How can employers make changes to existing employment agreements?
In general, employers can make unilateral amendments to existing employment agreements if this prerogative has not been expressly excluded by the employment contract or a legal provision. The General Labour Law grants employers broader prerogatives to vary certain aspects of the employment relationship unilaterally (eg, workplace and working hours).
Is a distinction drawn between local and foreign workers?
Yes. National and foreign resident employees (ie, foreign citizens holding a residency permit) are subject to the same rules on recruitment, hiring and termination as set out by the General Labour Law. Foreign non-resident employees (ie, foreign citizens holding a work visa) may be hired only on a fixed-term basis and are subject to recruitment and hiring requirements, plus specific immigration restrictions.
What are the requirements relating to advertising positions?
All jobs must be advertised under non-discriminatory terms. The advertisement should set out the basic terms and conditions for recruitment and hiring – for example, the type of employment contract, workplace and work schedule (ie, full time or part time).
If a job offer is included in the process of hiring a foreign non-resident, it is essential that the offer makes a detailed description of the required and applicable skills, educational and professional qualifications and certifications. The job offer must be posted with the Employment Centre, be published in the Angolan Official Newspaper and the offer should be vacant for at least 30 days.
Background checks What can employers do with regard to background checks and inquiries in relation to the following:
Employers may request employees to present an up-to-date criminal record check if the position requires pre-screening.
Employers must request employees to present copies of their vaccination cards to confirm compliance with the national vaccination programme. Further, employers may require employees to take pre-employment and regular medical exams. Employers are free to define the medical and physical requirements for the performance of a job and the examinations needed to assess employees’ fitness. In this context, employers may require employees to provide information on their medical history to the medical professional carrying out the examinations and testing. Employers must have access to medical certificates confirming an employee’s fitness to work, which must be available for audit by the General Inspectorate of Labour.
In general, testing for HIV/AIDS and related medical history is not allowed. If permitted, it must be:
- based on exceptional public safety reasons regarding the specific job;
- previously authorised; and
- supervised by the labour and medical authorities.
In general, drug screening is allowed in the context of pre-employment and regular medical examinations. Invasive testing (eg, blood tests) is subject to particular requirements.
Employers may ask employees to declare their credit status during the recruitment process and on a regular basis for positions which require a positive credit status. In general, credit checks with third-party authorities, banks and other credit institutions are not allowed, as this is considered to be privileged and confidential personal information.
Employers must confirm the nationality and immigration status of all employees.
Employers may examine employees’ social media use if the employees agree, in line with the Angolan data protection laws and rules.
Other background checks and enquiries must be based on the need of employers to confirm an employee’s suitability for a job. Employers must adhere to non-discriminatory principles and ensure that the employee’s personal information is processed under the applicable data protection laws.
Wages and working time
Is there a national minimum wage and, if so, what is it?
Yes. The national minimum wage is set according to industry sector. Presidential Decree 91/17 of 7 June 2017 established the following national minimum wages:
- commerce and mining – Kz24,754.95 (approximately $79);
- transport, services and manufacturing – Kz20,629.13 (approximately $65); and
- agriculture and other sectors – Kz16,503.30 (approximately $53).
The national minimum wage is currently being revised by the government and there are reports that it will be updated to start from Kz21,000.
Are there restrictions on working hours?
The maximum normal working hours are 44 hours a week and eight hours a day, Monday to half-day Saturday. The weekly limit may be extended to 54 hours for shift, modular or variable working hours where a recovery timetable applies, the work is intermittent or the employee's mere presence is required.
Daily work limits may also be extended to:
- nine hours a day when the work is intermittent or requires the mere presence of the employee and the employer concentrates the working week into five consecutive days;
- 10 hours a day when the work is intermittent or requires the mere presence of the employee and the employer adopts shift, modular or variable working hours, or where a recovery timetable applies; and
- 12 hours a day for rotational work timetables of up to four weeks of consecutive work followed by an equal period of rest.
Working hours exceeding these limits are deemed to be overtime.
Hours and overtime
What are the requirements for meal and rest breaks?
Under the General Labour Law, all employees are entitled to a break of between 45 minutes and 1.5 hours each working day, so that they do not work for more than five consecutive hours. By means of collective bargaining agreements, parties may establish breaks over two hours or other duration deemed relevant.
How should overtime be calculated?
The General Labour Law provides that work performed outside the normal daily work period – either before or after the working day, during rest or meal breaks or on non-working days – is deemed to be overtime. The following limits apply to overtime:
- two hours for each day of work;
- 40 hours for each month of work; and
- 200 hours annually.
Overtime carried out on regular working days and Saturdays entitles employees to:
- an additional 50% of their hourly salary, up to the 30-hour limit of overtime per month; and
- an additional 75% of the employee’s hourly salary for overtime exceeding the 30-hour monthly limit.
Under the General Labour Law, micro, small and medium-sized companies are subject to reduced overtime premiums.
Overtime carried out on Sundays and public holidays entitles an employee to:
- an additional 100% of their hourly salary, with a minimum compensation of three hours of overtime at this rate; and
- the right to a compensatory rest period to be taken during the following week equal to a half-day of work if the employee carries out less than four hours of overtime or a full day of work if the employee carries out four or more hours of overtime. The compensatory rest period for overtime work rendered on a public holiday should be taken in the three working days following the holiday.
Overtime premiums are set based on the employee’s hourly salary and calculated as follows: their monthly base salary by 12 or 52 by weekly work schedule.
The compensation for overtime is calculated by applying the relevant percentage on top of the applicable hourly salary rate.
What exemptions are there from overtime?
Under the General Labour Law all personnel are eligible for overtime. An employee may be partially excluded from overtime only under the exemption of a fixed work schedule. The exemption from a fixed work schedule applies only to the following employees:
- Employees in management, leadership, advisory and supervisory positions are by definition exempt from a fixed work schedule and not subject to the maximum daily and weekly work limits. The provision of overtime is exceptional and these employees are not entitled to any additional allowance in consideration for this regime.
- Employees who regularly perform work outside of a fixed location may also be exempt from a fixed work schedule. Work rendered on Sundays, public holidays and the weekly half-day of rest (generally Saturday afternoon) qualifies as overtime. These employees cannot work more than 10 hours a day and are always entitled to a daily break of one hour. They are entitled to specific compensation of at least one hour of overtime work a day.
Is there a minimum paid holiday entitlement?
Yes. Under the General Labour Law, employees are entitled to 22 days of paid holiday a year.
When an employee starts a new job, the holiday allowance for the first year of employment corresponds to two working days for each month of work, with a minimum of six working days, which matures on 1 January of the following year and holiday can be taken only once the employee has worked for six months.
What are the rules applicable to final pay and deductions from wages?
Salaries paid to employees in Angola are subject to two legal deductions: income-related tax and social security contributions.
The income-related tax rates are progressive depending on the salary amount, with the highest rate being 17%.
Social security contributions are shared between the employer (8%) and the employee (3%), amounting to a total contribution of 11%. Employers pay their contributions by applying the 8% rate on top of employees’ base salaries and the remaining relevant allowances, and must deduct employees’ 3% contribution from their monthly remuneration and remit the total contribution to the Social Security National Institute by the 10th day of the following month. Foreign non-resident employees are deemed exempt from Angolan social security contributions if they can prove to the local social security authority that they are covered by the system of their home country.
What payroll and payment records must be maintained?
Employers must keep records of their payroll list or relevant payslips. Tax and social security payment forms must also be kept on file.
Discrimination, harassment & family leave
What is the position in relation to: Protected categories
The minimum working age is 14 years old. The General Labour Law provides that an employer may enter into an employment relationship with a minor aged between 14 and 18, provided that authorisation is obtained from the parent, legal guardian, person or institution in charge of the minor or, in their absence, from the General Inspectorate of Labour or another appropriate entity.
Employees aged between 14 and 18 benefit from additional protection regarding:
- the type of work that they may carry out;
- the medical examinations to which they are subject;
- their work schedule (no more than 34 hours a week);
- overtime; and
- termination (intervention by the General Inspectorate of Labour is required).
The Constitution establishes that all citizens have the same social dignity and are equal before the law and that no one is privileged, benefited, harmed or deprived of any right or exempted from any duty because of their race.
In addition, to refuse to enter into an employment contract due to discrimination based on the grounds previously mentioned is a crime punishable with a fine or imprisonment.
The Constitution establishes that all citizens have the same social dignity and are equal before the law and that no one is privileged, benefited, harmed or deprived of any right or exempted from any duty because of disability.
However, employees who are disabled (with reduced working capacity) enjoy additional protection regarding:
- the type of work that they may carry out;
- their work schedule (ideally part time);
- overtime; and
The Constitution establishes that all citizens have the same social dignity and are equal before the law and that no one is privileged, benefited, harmed or deprived of any right or exempted from any duty because of their sex.
In addition, the General Labour Law guarantees equal treatment and non-discrimination at work for men and women, notably the right to equal pay for equal amounts of work, and that the various components of remuneration must be set in accordance with the same standards.
(e) Sexual orientation?
Angolan law sets down the general principle of equality of rights between employees regardless of their sexual orientation and therefore prohibits discrimination on this basis.
The Constitution establishes that all citizens have the same social dignity and are equal before the law and that no one is privileged, benefited, harmed or deprived of any right or exempted from any duty because of their religion.
Angolan law sets out the general principle of equality of rights between employees regardless of medical conditions and therefore prohibits discrimination on this basis.
However, changes to an employee’s health can result in changes to their workplace responsibilities while also respecting their equality of opportunity, merit and ability to perform work and maintaining their salary and other social benefits.
Disabled employees are entitled to particular protection in terms of overtime and termination.
Employees cannot be discriminated against based on marital status, union representation and activities or pregnancy.
Employers must implement specific regulations for employees with HIV/AIDS. They must establish education and awareness programmes on HIV/AIDS involving the families of employees and trainees. Further, employers cannot:
- conduct HIV tests at the workplace (except when requested by the employee) as a prerequisite for hiring;
- discriminate against HIV-positive employees in the workplace; or
- use HIV-positive status as a factor in dismissals or promotions.
Family and medical leave
What is the position in relation to family and medical leave?
Employees can be absent for up to eight consecutive calendar days for their wedding. They are also entitled to be absent due to the death of a close relative as follows:
- eight consecutive or non-consecutive business days for the death of a spouse or partner, parent, child or other members of their household; and
- three business days for the death of an uncle or aunt, grandparent, parent-in-law, sibling, grandchild or son or daughter-in-law.
Such absences are deemed as justified and do not entail any loss of payment.
Employees are also entitled to be absent in the event of the sickness of or injury to their spouse, parents or underage children. Said absences are paid up to a maximum of eight business days per year. Said limit may be extended at the employee’s request, but the absences resulting from said extension shall not be paid.
Valid absences from work due to illness or family reasons cannot affect the employee’s position or be deducted from their annual holiday allowance.
Female employees are entitled to three consecutive months of paid maternity leave and an extra four weeks’ leave for multiple births. Said payment must be made by the employer, which will subsequently be reimbursed by the Social Security National Institute.
Employees are entitled to be absent from work due to illness, without limitation, provided that such absence is documented and justified by a medical certificate.
Provided that a medical certificate is supplied, an employee is entitled to remuneration for the period of absence, paid in the form of sick leave by:
- their employer or the local social security authority (in the case of natural illness); or
- their insurer (in the case of occupational disease) under the mandatory work compensation insurance policy.
In case of medical leave, medium and large-sized companies must pay the full base salary of employees for the first two months of absence. From the third to the twelfth month of absence, they must pay the employee 50% of their base salary until the relevant social protection entity takes over. Micro and small-sized companies must pay the employee 50% of the base salary for 90 days.
What is the position in relation to harassment?
Although there is no express legal provision preventing harassment at work, the General Labour Law establishes that employers and employees must treat each other with respect and loyalty.
What is the position in relation to whistleblowing?
There is no legislation regarding whistleblowing.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
The Constitution establishes that people are entitled to their identity, privacy and intimacy and that private means of communication (including emails) cannot be breached without a judicial order to that effect. Under Angolan law, while a company may own a laptop or email account, it is not the owner of the private messages sent to a specific employee.
Although the General Labour Law does not expressly address this matter, employees are entitled to be treated with consideration and respect. It is commonly accepted that this includes respect for their private life and personal communications (even if those communications are received through tools provided by the employer).
To what extent can employers regulate off-duty conduct?
In general, employers cannot regulate employee’s off-duty conduct; however, they may regulate it to the extent that it has a detrimental effect on an employment relationship. If employees adopt conduct that has a negative impact on their employer or their employment relationship, employers may be able to initiate disciplinary proceedings.
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
No rules specifically address the protection of employees’ social media passwords or the monitoring of employees’ social media accounts. However, general principles such as the constitutional right to privacy, dignity and integrity do not allow employers to intrude into employees’ social media accounts without authorisation. Employee consent may be deemed null and void in the context of an employment relationship.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
The law provides for a coexisting set of rights over intellectual creations protected by copyright:
- moral rights (ie, the right of paternity and to be credited for the creation), belong permanently and inalienably to the natural person who created the work; and
- economic rights (ie, the right to market and exploit a work and use it in any way), which may be transferred, in whole or in part, by means of an agreement between the author and any third parties.
Copyright belongs to the employer only to the extent that this does not comprise moral rights, as these remain with the author (ie, the employee).
For industrial property rights (ie, patents, utility models and industrial designs), the right to apply for a patent for an invention made under a contract belongs to the employer. However:
- the application to register the patent must be filed in Angola;
- the employer must file a declaration supporting its right; and
- the inventor/employee must be identified on the patent registration form.
The right to apply for a patent for an invention created in the course of an employment contract belongs exclusively to the employee if the invention was developed using their own equipment, materials or means.
If the employer and the employee have contributed to an invention equally, unless agreed otherwise between the parties, they will both own the invention. In this case, the employer has the right to use or develop the invention and the employee has the right to remuneration as agreed between the parties. However, the patent must be used by the employer within one year of registration; otherwise, the employee will be considered its sole owner.
What types of restrictive covenants are recognised and enforceable?
The law provide that employers must:
not enter into or adhere to agreements with other employers aiming at the limitation in the hiring of employees who have rendered services to them, and not to hire, under penalty of incurring in civil liability, employees still included in the personnel list of another employer, whenever such hiring would result in unfair competition.
Are there any special rules on non-competes for particular classes of employee?
There are no special rules for specific classes of employee. With an employee’s consent, it is possible to establish a non-compete obligation for up to three years following termination provided that:
- the non-compete clause is included in a written employment agreement or an addendum thereto;
- the activity in question may cause real damage to the employer and is deemed as unfair competition; and
- the employee is paid compensation during the restricted period and the amount of compensation is stated in the contract or an addendum thereto. The compensation may be reduced equitably if the employer incurred costs in training the employee.
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
Yes. Disciplinary procedures are subject to the mandatory provisions set out in the General Labour Law. There are no specific laws regarding grievance procedures.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
Except in the oil and gas, mining and banking sectors, there is generally a low degree of employee unionisation. However, unions are very active in these sectors.
What are the rules on trade union recognition?
The Constitution establishes the freedom of association to defend employees’ individual and collective interests. However, the Trade Union Law (21-C/92) sets out no rules or procedures for trade union recognition by employers.
Once a union is incorporated and registered with the Ministry of Justice and has affiliated employees, it may represent employees. The law sets out no minimum percentage of employee representation.
What are the rules on collective bargaining?
Employers and unions may enter into collective bargaining agreements under the Law on the Right to Collective Bargaining (20-A/92). Where there is no union representation, employees may set up an ad hoc commission aimed at negotiating and concluding a collective bargaining agreement with the employer, subject to complex requirements.
If more than one union represents an employer’s employees, the unions must set up a joint negotiation committee composed of representatives from each union in the same proportion as its employees are represented.
The negotiation process for a collective bargaining agreement must be finalised within 90 days of the employer receiving the union or employees’ initial proposal. If this process is unsuccessful, the Law on the Right to Collective Bargaining provides for alternative dispute resolution mechanisms to resolve collective labour conflicts – notably, conciliation, mediation and arbitration. Unions or employees may call a strike if negotiations are deadlocked when the deadline for reaching an agreement passes.
A collective bargaining agreement requires that all parties maintain social peace while it is in force, rendering any strike action or collective labour conflict illegal during that period. Once the effective period has elapsed, the agreement will continue to bind the parties until it is replaced by a new or amended collective bargaining agreement.
The terms and conditions of employment determined by a collective bargaining agreement may only be waived if an individual employment agreement establishes more favourable conditions to the employees.
Are employers required to give notice of termination?
In general, termination by serving a notice period is not allowed. However, for fixed-term employment contracts, employers must serve employees with two weeks’ prior written notice before their contract expires.
Further, a 30-day notice period applies to individual termination for objective reasons and a 60-day notice period applies to collective dismissal.
The lack of prior notice, in whole or in part, entitles employees to receive salaries corresponding to the period not observed. In the cases set out above, it is possible for employers to pay the notice period in lieu.
What are the rules that govern redundancy procedures?
Under the General Labour Law, redundancy occurs when an employer faces economic, technological or structural circumstances that give rise to an internal reorganisation or conversion or the reduction or closure of activities which makes it necessary to eliminate or significantly alter certain positions. The law provides for two main types of redundancy procedure: collective dismissal and individual redundancy.
Are there particular rules for collective redundancies/mass layoffs?
Yes. Under the General Labour Law, a collective dismissal can take place if the redundancy procedure covers more than 20 employees. Otherwise, the more flexible individual redundancy rules apply.
A collective dismissal requires the employer to:
- serve an initial redundancy notice on the union committee and the Ministry of Labour;
- carry out a mandatory information and consultation process with all parties concerned; and
- serve a final collective termination notice on the employees.
The Ministry of Labour has supervisory powers over the process and the prerogative to reject the collective dismissal process.
Redundancy gives employees the right to a 30-day notice period for individual terminations for objective reasons and 60 days for collective dismissals (or payment of salary in lieu), plus compensation of one month’s base salary per full year of service up to five years of seniority and 50% of monthly base salary per each additional year. Micro, small and medium-sized companies may pay reduced compensation to redundant employees.
What protections do employees have on dismissal?
Employees may bring reinstatement claims that must be filed by employees within 180 days of termination; compensation may be claimed within 12 months of the same date.
If an employment termination is declared to be unlawful by a res judicata ruling handed down by the competent court, the employer will immediately reinstate the employee in their position with the same conditions or alternatively indemnify the employee as established by law. In addition, employees will be entitled to the base salary that they would have received if they had continued to work, until the earlier date on which they found a new job or on which the ruling becomes res judicata, but subject to a maximum of six months for large companies, four months for medium-sized companies and two months for small and micro companies. Employees may also judicially plea for damages suffered due to termination.
The General Labour Law establishes that the following categories of employee have special protection regarding dismissal:
- pregnant employees;
- mothers for one year after childbirth;
- union or former union representatives;
- former combatants; and
- employees with reduced capacity equal or higher than 20%.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
Labour complaints must be filed with the competent provincial labour court. Under the General Labour Law, employment disputes may be resolved through:
- conciliation before the public attorney’s office with the competent provincial labour court;
- mediation before the General Inspectorate of Labour; or
- voluntary arbitration.
What is the procedure and typical timescale?
As soon as the claim is filed with the court by an employee, they and the employer are given notice to attend a conciliation hearing with the purpose of reaching an agreement. If no agreement is reached, the judicial phase begins. The timescale for completion of the procedure varies on a case-by-case basis and also depends on the court’s workload. The average timescale for a first-instance proceeding is two years.
What is the route for appeals?
An appeal may be filed with the Court of Appeals by either the employer or the employee in relation to an unfair dismissal claim. A further appeal to the Supreme Court is possible, but is subject to complex requirements.