Dismissal: definition and legal basis.
The word dismissal is often misused by workers, employers, and even accounting and human resources professionals, and many lawyers.
It is often used to refer to the eviction exercised by the employer against a worker and the rights, duties and consequences of a dismissal for workers and employers are almost always unknown.
In this article we intend to make a humble contribution to the available literature on job dismissal in the Dominican Republic.
Definition
Our Labor Code defines dismissal as follows:
“Dismissal is the termination of the employment contract by the unilateral will of the employer.”
Art. 87 Labor Code.
From this definition, we can infer that dismissal is an exclusive right of the employer. This right is exercised against a worker who has committed one or more of the violations established in Article 88 of the aforementioned Code.
When an employer exercising the right to dismiss a worker proves the just cause alleged for the dismissal, the dismissal is considered justified. Otherwise, the dismissal will be declared unjustified.
Legal basis
The right to dismiss has been enshrined by our legislator in the articles ranging from article 87 to article 95 of law 16-92 of May 29, 1992, which instituted our Labor Code.
Reasons that may justify a dismissal:
The Labor Code of the Dominican Republic provides for a wide variety of causes that may justify the dismissal of the worker.
In that regard, it is important to point out that Article 88 stipulates that:“The employer may terminate the employment contract by dismissing the employee for any of the following reasons:
1st For having misled the employer by pretending to have essential conditions or knowledge that he does not possess, or by presenting references or personal certificates whose falsity is later proven.
The first cause of justified dismissal is the fact that the worker has induced the employer to make the "error" of hiring him by pretending that he possesses conditions or knowledge indispensable to perform the functions of the position without it being true or presenting false references or personal certificates.
It is important to note that, in the event of submitting false documentation, the employee may be justifiably dismissed regardless of their length of service. The fifteen (15) day period established in Article 90 of the Labor Code begins after the employer becomes aware of the deception, as this is considered a continuing offense until the fraud is discovered.
I remember that, in early 2000, I interviewed a candidate for a messenger position at a pharmacy I managed in Villa Juana, Santo Domingo. When I asked him about his ability to drive a scooter, he replied, "Oh man, I can even drive a flatbed truck.".
However, the next day, when he started the scooter, he took it off the footrest and when he revved it with the throttle wide open, he had to ride faster than Usain Bolt before he had to let go. The scooter knocked down a utility pole that was being installed in the street and caused extensive damage to the motorcycle.
Because I wanted to help him, the next day we went to a nearby pawn shop and I bought him a bicycle so he could do his delivery work since he didn't know how to ride. Two weeks later, he asked me to advance him his entire month's salary. I gave it to him, but he never came back to work and never returned the money.
2. For performing the work in a manner that demonstrates incapacity and inefficiency. This cause ceases to have effect after three months of the worker's employment.
The second cause for justified dismissal is the employee's incapacity or ineffectiveness in performing the work for which they were hired. This cause expires three months after the employee begins providing the service.
Therefore, the employer cannot claim that a worker who has been employed for more than three months will be dismissed under Article 2 of the Labor Code. In such a case, the employer must allege another cause or carry out a dismissal.
3rd For the worker incurring during his work in a lack of probity or honesty, in acts or attempts of violence, insults or mistreatment against the employer or the relatives of the latter under his dependence.
4th For the worker committing, against any of his colleagues, any of the acts listed in the previous section, if this alters the order of the place where he works.
5th For the worker committing, outside of service, against the employer or relatives who depend on him, or against the heads of the company any of the acts referred to in paragraph 3 of this article.
The third, fourth, and fifth ordinals of Article 88 will be addressed together due to the close relationship they have with each other.
The employer may terminate the employment contract when the worker engages in acts of dishonesty or lack of integrity.
In that sense, people ask themselves, what does the labor legislator mean when he speaks of acts of lack of probity or honesty?
To answer this question, let's look at what our Supreme Court of Justice has held through jurisprudence:
“That a lack of probity is not only the breach of trust that should govern the employment relationship, since this criterion alone would be to place the moral element without factual support that gives it concrete form, such as in the voluntary and intentional act of the worker that aims to take advantage of the employer, his relatives or colleagues; that a lack of probity consists of acts contrary to the rectitude of conduct and the fulfillment of duty. A lack of honesty implies taking or improperly disposing of other people's things.”.
SCJ, TS, sent. no. 21, May 24, 2013, BJ1., pp. 2593-2594; sent. no. 12, July 15, 2015, BJ1., p. 1968; sent. no. 42, October 23, 2013, BJ 1235, pp. 1418.
Therefore, when a worker has broken the bond of trust that should govern the employment relationship, he compromises his responsibility by violating the fundamental principle that establishes that in matters of work, rights must be exercised and obligations executed according to the rules of good faith.
Similarly, when a worker commits or attempts to commit acts of violence, insults or mistreatment against the employer or the employer's relatives under his care, he incurs liability and is liable to be dismissed.
It is vitally important to emphasize that, in application of paragraph 4 of article 88 of the Labor Code, the worker who commits any of the acts listed in paragraph 3 against any of his coworkers, compromises his responsibility and may be subject to justified dismissal, provided that this altercation disrupts the order of the place where he works.
Paragraph 5 establishes that the worker may be dismissed for committing, off duty, against the employer or relatives who depend on him, or against the heads of the company, some of the acts referred to in paragraph 3 above.
In other words, if a worker engages in an act of dishonesty or lack of integrity, in acts or attempts at violence, insults or mistreatment against the employer, relatives who depend on him or against the "bosses" of the company inside or outside the company, he will be subject to justified dismissal.
The legal logic applied by the labor legislator to establish this section as grounds for justified dismissal is based on the uncontroversial fact that after an event of this magnitude occurs, there will be no human way to develop harmonious work within the productive unit in question.
6th For the worker intentionally causing material damage, during the performance of the work or as a result thereof, to the buildings, works, machinery, tools, raw materials, products and other objects related to the work.
Our Labor Code empowers the employer to dismiss a worker who has intentionally caused material damage during or as a result of the performance of their duties.
The material damages referred to in paragraph 6 of article 88 extend to the damages and losses caused with malicious intent by the workers against the employers in the buildings, the works, the machinery, the tools, the raw materials, the products and other objects related to the work.
As can be seen, there is a very wide range of possibilities that compromise the job stability of a worker who intentionally causes harm to their employer.
Very often, some workers engage in the practice of causing material damage to companies with the intention of provoking an eviction without knowing that they can be fired for such actions.
Similarly, some unscrupulous employers make false accusations against some workers they want to fire and justify themselves by claiming damages caused by those workers.
Both the Ministry of Labor and the Labor Courts are meticulous with these complaints and usually conduct thorough investigations to clear up any doubts and thus avoid injustices.
7th For causing the serious damages mentioned in the previous ordinal, without intention, but with negligence or imprudence of such a nature that they are the cause of the damage.
Labor law does not limit itself to justifying the dismissal of an employee for intentionally causing material damage to their employer. Rather, it establishes that if the material damage caused by an employee was unintentional but resulted from inexcusable negligence or recklessness on the part of the employee, and the damage or harm was caused by that negligence or recklessness, then the employee may be justifiably dismissed.
For this reason, workers must be aware that they can be dismissed for committing reckless or negligent acts that may cause material damage to the companies where they work.
In many cases, some workers cause great losses to their employers without any bad intention on their part.
In other cases, the damages are minimal and can almost always be compensated with very little money. In these instances, workers and employers can reach agreements without violating Article 201 of the Labor Code.
Arbitrary actions must be avoided, as well as the abuse of valuing damages at an excessive amount and deducting it from the worker's salary without their consent. However, nothing prevents the parties from reaching an agreement and thus avoiding a dismissal justified by a trivial matter.
8. For the worker committing dishonest acts in the workshop, establishment or workplace.
Item 8 is closely related to item 3 of article 88 of the Labor Code of the Dominican Republic.
In that sense, it can be observed that a worker who commits dishonest acts in the workplace may be justifiably dismissed.
Dishonest acts such as fraud, lying, corruption, theft, and generally poor work practices affect both the company and its employees. This is because they generate distrust and uncertainty, and contribute to a negative work environment for the entire company.
Dishonest acts in the workplace are more common than most people realize. For example, in the United States, the Enron, WorldCom, and FTX cases resulted in losses exceeding $56 billion.
9th For the worker revealing manufacturing secrets or disclosing confidential matters to the detriment of the company.
Workers have a great responsibility on their shoulders, and one of these responsibilities is their obligation to maintain confidentiality regarding the manufacturing secrets of the products and services of the companies where they work and not to reveal confidential secrets that could affect the company's image.
In fact, in many jobs, workers must sign a confidentiality agreement that seeks to ensure that workers keep such secrets even after the termination of the employment relationship.
Workers who commit the offense described in section 9 of the Labor Code run the risk of being justifiably dismissed for said offense.
10th For the worker, through inexcusable imprudence or negligence, compromising the safety of the workshop, office or other center of the company or of people who are there.
Endangering the safety of the workshop, office or any other center of the company or of the people who are there, compromises the responsibility of the responsible worker for the inexcusable imprudence or negligence.
I recently learned of a worker who detonated a pyrotechnic device (fireworks) at a tobacco company's plant during the workday. The worker claimed it was a joke. However, his "joke" created pandemonium in the workplace, compromising the plant's safety.
11th For the worker's absence from work for two consecutive days or two days in the same month without permission from the employer or his representative, or without notifying the just cause he had for it within the period prescribed by article 58.
This is by far the most frequent reason employers give when dismissing a worker.
Article 44, paragraph 2 of the Labor Code establishes the following as an obligation of the worker: “To arrive on time at the place where you are required to provide your services and to perform them in the agreed manner.”.
In other words, employees are obligated to report to their workplace to provide their services every day, except for their days off and holidays. Furthermore, they must arrive on time, at the schedule agreed upon with their employer.
However, humans are subject to setbacks and unforeseen events, and for this reason, our labor legislator foresaw the possibility that a worker may be forced to be unable to attend his job for one or more justified reasons.
Therefore, it established the obligation that a worker who cannot attend his job for a justified reason can communicate within 24 hours the just cause that prevented him from attending his job.
In that same order, Article 8 of Decree 258-93 for the application of the Labor Code, provides for the possibility that a worker may be unable to notify his absence within the period provided for by Article 58 of the Labor Code.
The aforementioned article states that: “A worker who, due to force majeure, duly proven, does not notify the employer within the following twenty-four hours of the cause that prevents him from attending his work, is not at fault.”.
All private sector workers should be aware that if they are absent twice in the same month or on two consecutive days, they may be dismissed and consequently lose the corresponding labor benefits (notice and severance pay).
This section is extremely sensitive for the interests of workers, because a worker can lose their job due to justified dismissal by accumulating two absences in the same month or two absences on consecutive days within the same or two different months.
For two absences in different months to be considered as a single instance of misconduct, as stipulated in section 11 of article 88, the employee must have been absent from work on the last day of the previous month and the first day of the following month. For example: Juan was absent from work on November 30th and December 1st without notifying his employer and without providing a valid reason within the 24-hour period established in article 58.
12th For absence, without notification of the justified cause, of the worker who is in charge of some task or machine whose inactivity or stoppage necessarily implies a disturbance for the company.
This provision is closely related to items 6, 7 and 10 of article 88 of the Labor Code.
This is because the absence of the worker without notification of a justified cause can cause great economic damage to the employer and put the safety of the workplace at risk in multiple ways.
Therefore, if a worker has an urgent need to be absent from their job, they are obliged to notify their employer or their representative of their absence in order to avoid greater problems and thus not compromise their responsibility and stability in the job.
13th For the worker leaving during working hours without permission from the employer or his representative and without having previously stated to said employer or his representative the justified cause he had for leaving work.
A worker who leaves their workplace during their working day without permission from their employer or their representative and without having previously stated the justified reason they had for leaving work compromises their responsibility and may be subject to justified dismissal.
This is why workers who need to leave their job for a justified reason should make sure to obtain permission to avoid being fired.
It is very sad to see how mothers and fathers are fired for leaving their jobs after receiving news about some unfortunate event involving one of their children.
The fact is that human beings are very often prey to their own emotions and sometimes make decisions that significantly affect our future.
14th For disobeying the employer or their representatives, provided that it concerns the contracted service.
Another common cause of dismissal is when the employee disobeys their employer.
The employment contract implies a relationship of subordination and Article 146 of the Labor Code defines the working day as all the time that the worker cannot use freely, because it is at the exclusive disposal of his employer.
Likewise, item 6 of article 44 establishes as an obligation of the workers: “To observe good conduct and strict discipline during working hours.”.
In that same vein, Article 39 of the Labor Code establishes that: “The worker must perform his work with intensity, care and diligence, in the manner, time and place agreed, and under the direction of the employer or his representative to whose authority he is subject in all matters concerning the work.”
This does not mean that workers lose their dignity and respect. What it means is that, during the workday, workers are subject to the orders of the employer or their representative and must perform the duties for which they were hired.
Therefore, it is necessary for workers to be aware that they may be dismissed if they disobey the employer regarding the service for which they have been hired.
15th For the worker's refusal to adopt preventive measures or to follow the procedures indicated by law, the competent authorities or employers, to avoid accidents or illnesses.
A worker who refuses to take preventive measures or follow the procedures indicated by law, competent authorities or employers to avoid accidents or illnesses may be subject to justified dismissal.
This is because safety is a two-way street. In other words, workers must adopt safety measures to prevent accidents and illnesses, or they may be dismissed.
However, employers must guarantee hygiene and safety measures to prevent workers from resigning due to the application of item 11 of article 97 of the Labor Code.
During the COVID-19 pandemic, many workers refused to adopt the safety measures recommended by national and international health authorities, and heated debates arose between labor law professionals and human rights specialists regarding the appropriateness of dismissals based on this refusal.
16th For the worker violating any of the prohibitions provided for in paragraphs 1, 2, 5, and 6 of article 45.
In accordance with paragraph 16 of article 88, the following workers will be subject to justified dismissal:
- Reporting to work or working while intoxicated or in any other similar condition.
- Carrying weapons of any kind during working hours, except for the exceptions established by law for certain workers.
- Removing work tools, raw or finished materials from the factory, workshop or establishment without the employer's permission.
- To engage in any type of religious or political propaganda during work.
As can be seen, a worker can lose their job through justified dismissal for showing up to work drunk or under the influence of drugs. This also applies to engaging in political or religious propaganda.
17th For the worker violating any of the prohibitions provided for in paragraphs 3 and 4 of article 45 after the Department of Labor or the local authority exercising its functions has admonished him for the same offense at the request of the employer.
This section is very special. Note that the employer may justifiably dismiss any employee who violates the following prohibitions:
- Collect donations at the place where they provide services, during the hours of that place.
- Using the tools and equipment provided by the employer for work other than that for which they are intended, or using the employer's tools and equipment without their authorization.
However, in order for the employer to exercise that power, he must first request an inspector to verify the offense and admonish the worker who committed the violation.
If the worker commits that violation again, then he may be dismissed by his employer based on the aforementioned offenses.
Many socially conscious workers have lost their jobs for collecting donations at their workplace for charitable causes. Worker, you already know you shouldn't collect donations at your workplace.
18th Because the worker has been sentenced to a term of imprisonment by an irrevocable judgment.
When a worker is imprisoned, the effects of the employment contract are suspended. This is legally supported by Article 51, paragraph 5 of the Labor Code, which states the following:
“The detention, arrest or preventive imprisonment of the worker, followed or not by provisional release until the date on which the final sentence is irrevocable, provided that it acquits or discharges him or that it only condemns him to pecuniary penalties, without prejudice to the provisions of article 88 ordinal 18.”.
Therefore, while a worker is under investigation, his employment contract is suspended regardless of whether he is in prison or at liberty.
This suspension ends with the final and irrevocable judgment, whether it is a conviction or an acquittal. If the judgment is a conviction, the employer may terminate the employment contract through justified dismissal.
However, it is important to highlight the following: “The preventive detention of the worker caused by a complaint from the employer or by a cause beyond the will of the worker, but not beyond the will of the employer, caused by an unintentional act of the worker committed during the exercise of his functions or by an act carried out in defense of the employer or his interests, will not release the latter from his obligation to pay the salary, if the worker is acquitted or declared innocent.”.
Many workers who are under this type of suspension experience a real social and economic hardship because, while their criminal proceedings are ongoing, they cannot generate income, even though they are free.
19th For lack of dedication to the work for which he has been hired or for any other serious breach of the obligations that the contract imposes on the worker.
This ordinal number is the "Cherry on top of the ice cream." This section appears in over 90% of the dismissal requests from Dominican workers.
Lack of dedication to the duties for which one has been hired is, in fact, just cause for dismissal. This is due to the very nature of an employment contract.
An employer hires a worker to perform a function necessary for the operation of the production unit, and if the worker does not perform that function, it is not profitable for the company. Consequently, an employer cannot be forced to retain a worker who does not want to perform the work for which they were hired.
The problem is that, on many occasions, it serves as a stratagem for some employers to justify the dismissal of workers who have not committed the aforementioned offense.
Furthermore, that phrase: “or for any other serious breach of the obligations imposed on the worker by the contract,”, It is very detrimental to the interests of the workers, although it is worth noting that the same power is granted to the workers to exercise resignation in accordance with article 97, ordinal 14 of the Labor Code.
Exemption of the employer from liability for dismissal with just cause
In accordance with the provisions of Article 89 of the Labor Code, an employer who dismisses a worker for one of the reasons listed in Article 88 does not incur liability.
However, no one can prevent a dismissed worker from filing a claim for wrongful termination in a labor court. In such a case, the court will decide whether or not the dismissal was justified.
The employer does not require prior permission from anyone to carry out a dismissal if he considers that he has sufficient evidence to prove the just cause alleged for the dismissal, except for the exceptions established by our Labor Code for certain workers protected by special privileges.
Among the cases in which it is mandatory for the employer to receive authorization from the Ministry of Labor or the Labor Court to carry out a dismissal, we can mention: 1) Pregnant women; 2) Workers affected by HIV under the protection of law 135-11 and 3) Workers protected by union immunity.
Deadline for carrying out dismissal: 15 days
“The employer’s right to dismiss the worker for one of the reasons listed in article 88 expires after fifteen days.
This period begins from the date on which that right was generated.
In the case provided for in article 88, paragraph 18, the employer's right to dismiss the worker expires fifteen days after the date on which the worker has communicated or notified the employer of the fact that made the conviction irrevocable.”.
Once this period has expired, the employer may not allege the offense committed as justification for dismissing the employee.
If fifteen days have passed (these are calendar days) and the dismissal is carried out, said dismissal will be declared unjustified by the labor court in charge.
If the employer considers that the offenses committed by the worker are so serious that they make his continued employment untenable, he must either dismiss him or wait for that worker to commit another violation of labor laws.
Communication to the Department of Labor: within 48 hours
In addition to the provisions of Article 90, the parties involved in a dismissal should know that it is mandatory to notify the Department of Labor, through the competent Local Labor Representation within the period of forty-eight hours.
Article 91 of the Labor Code states that: “Within forty-eight hours of the dismissal, the employer shall notify, with an indication of the cause, both the worker and the Department of Labor or the local authority that exercises its functions.”.
Communication: makes it impossible to modify or expand the grounds
When issuing a dismissal notice, employers must take special care to clearly state the cause or causes justifying the dismissal. This is because our legislation prohibits modifying or expanding the grounds for dismissal once it has been communicated to the Workers' Representatives.
Let's see what Article 92 of our labor legislation states: “After the dismissal has been communicated, no modification of the reasons stated in the communication will be allowed, nor will any others be added.”.
Failure to communicate: Dismissal is deemed to be without just cause
Failure to comply with the obligation established in Article 90 of the Labor Code may generate disastrous results for the interests of the employer who has incurred such omission.
Regardless of the evidence and the justification for that dismissal, it will be declared unjustified with the sole presentation of the certification from the Ministry of Labor proving that said dismissal was not notified within the period established by national legislation.
In that order, we have that Article 93 of our Labor Code establishes the following: “A dismissal that has not been communicated to the corresponding labor authority in the manner and within the term indicated in article 91, is deemed to lack just cause.
The worker's complaint in no case replaces the employer's obligation.
As can be seen, this is a conclusive presumption (iuris et de iure). As we know, this is one of the two legal presumptions and means that no evidence to the contrary is admissible.
In that case, the dismissal will be declared unjustified and the employer will be ordered to pay labor benefits, acquired rights, back wages, damages (if any), procedural costs and for any other claims that the plaintiff may prove.
Grounds for dismissal proven in court
Article 94 states that: “If, as a consequence of the dismissal, a dispute arises and the employer proves the just cause invoked by him, the court will declare the dismissal justified.”.
If the employer has carried out the dismissal within the fifteen (15) day period prescribed by article 90 and complies with notifying the worker and the local labor authority within the forty-eight (48) hour period established in article 91, he will only have to prove the just cause he had to carry out the dismissal.
Once the alleged grounds for dismissal have been proven, the court will declare the employment contract terminated without liability for the employer and the worker will not receive the amounts for notice and severance pay.
In that case, the worker will only retain the right to receive acquired rights such as: 1) Wages earned before dismissal;2) compensation for unused vacation time; 3) Christmas bonus or its proportion; and, 4) Participation in the company's profits (if there are profits).
Consequences of not proving just cause for dismissal
As we have already stated, if the employer cannot prove the just cause invoked for the dismissal and the employee takes legal action through the corresponding Labor Court, the economic consequences for the employer can be devastating.
Our labor legislator has established the following in Article 95 of Law 16-92:
“If the employer does not prove the just cause invoked as grounds for dismissal, the court will declare the dismissal unjustified and the contract terminated due to the employer's fault and, consequently, will order the latter to pay the worker the following amounts:
1st If the contract is for an indefinite period, the sums corresponding to the notice period and the severance pay.
LABOR EVICTION IN THE DOMINICAN REPUBLIC (2022)
2. If the contract is for a certain time or for a specific work or service, the greater sum between the total wages that remain until the expiration of the term or until the conclusion of the agreed service or work and the sum that would have been received in case of dismissal, unless the parties have agreed in writing a greater sum.
Employment contracts for a fixed term or for a specific work or service: Workers' rights.
3rd A sum equal to the wages that the worker would have received from the day of his claim until the date of the final judgment, issued in the last instance.
This sum cannot exceed the wages corresponding to six months.
These sums are covered by the guarantees established in Article 86.
The provisions of this paragraph shall not apply when a dispute arises other than one arising from dismissal.”.
In another installment we will expand on the special procedures for dismissing those workers protected by the provisions of our current labor legislation.
