Discontinuing employmenti Dismissal
Employment may be terminated for dismissal with cause when the employer attributes to the employee one or more of the serious infractions listed in Article 88 of the Labour Code as cause of termination of the contract. It is the employer's right to terminate the employment agreement when the employee has committed a serious or inexcusable fault. The causes listed in Article 88 refer to contractual or legal faults that, because of their nature, make it impossible for the employment agreement to remain in effect.
It suffices that the fault committed by the employee must fall under any of the causes listed in Article 88 of the Labour Code for the termination to occur; it is irrelevant and not required that the employer suffers a damage from the employee's fault, except in the cases expressly provided by the law.
The employer has a 15-day term to proceed with the termination of the employment agreement under any of the causes previously indicated. The term starts to accrue as of the date the event that caused the breach of the contract took place, or as of the date the employer was informed or aware of the event taking place.
The employer has the obligation to communicate in writing to the employee its decision to unilaterally terminate the employment agreement within that term; otherwise the termination could be declared as time-barred. As of that moment, the employer has 48 hours to inform (in writing) the Labour Department of the Ministry of Labour or the local authority acting as such of the termination of the employment with express indication of the fault or faults committed by the employee.
The burden of proof of the just cause for termination lies with the employer. If the employer provides evidence of the legal cause, it is not required to pay any severance to the employee (except for the acquired rights, such as unused vacation time, Christmas bonus and profit share, which are due to the employee regardless of the cause or mode of termination of the employment agreement). However, when the employer fails to demonstrate just cause for unilateral termination, it is obligated to pay severance and compensation of up to six months of ordinary salary.ii Redundancies
This cause for termination of a contract is not expressly provided in the law. In that sense, employers can terminate the agreement without cause. If there is going to be a mass lay-off, two procedures may be followed:
- if it is not done by mutual agreement, then the procedure for the dismissal without cause applies, and the employer must pay the employee the severance; or
- if it is by mutual agreement, then the lay-offs can be done before a notary public.
Through this second procedure, the Labour Department must be notified after the enactment of the lay-offs and the corresponding employee benefits must be paid to each employee.
In cases of bankruptcy, a company's operation terminating altogether, a lack of resources that impedes the company operating a certain section, unprofitability or another similar cause, the company must obtain an approval from the Ministry of Labour to proceed with the lay-off of employees. In this case, the reduction of personnel must be made in the following order: (1) unmarried foreign employees; (2) married foreign employees; (3) foreign employees married to Dominicans; (4) foreign employees with Dominican children; (5) unmarried Dominican employees; and (6) married Dominican employees.