{"id":1358,"date":"2022-07-02T01:54:33","date_gmt":"2022-07-01T21:54:33","guid":{"rendered":"https:\/\/castillocordero.com\/desahucio-laboral\/"},"modified":"2022-07-02T01:54:33","modified_gmt":"2022-07-01T21:54:33","slug":"desahucio-laboral","status":"publish","type":"post","link":"https:\/\/castillocordero.com\/en\/desahucio-laboral\/","title":{"rendered":"EMPLOYMENT EVICTION IN THE DOMINICAN REPUBLIC: WHAT YOU SHOULD KNOW ACCORDING TO LAW 16-92."},"content":{"rendered":"

Eviction: definition and legal basis<\/strong><\/h2>\n\n\n\n

Eviction is a word that has several meanings and is frequently used in law and medicine.<\/p>\n\n\n\n

In medicine, this term is often used to refer to a doctor's decision when medical science has no resources to cure a patient's illness.<\/p>\n\n\n\n

In law, it is used to refer to the act of evicting a tenant from a property for the reasons stated in the law or agreed upon in a contract.<\/p>\n\n\n\n

The Pan-Hispanic Dictionary of Legal Spanish defines it as follows: \u201cAction of notifying or giving judicial notice that a lease agreement that does not have a fixed term, or that has one but the leased property is being sold, is being terminated.\u201d.<\/em><\/p>\n\n\n\n

Another meaning given by the aforementioned source is: \u201cTermination of an indefinite-term employment contract by the unilateral will of the employer or the employee, with prior notice to the other party and without alleging cause.\u201d. <\/em> <\/p>\n\n\n\n

However, in the Dominican Republic, the Labor Code, established by Law 16-92 of May 29, 1992, defines eviction as follows:<\/p>\n\n\n\n

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\u201cEviction is the act by which one of the parties, by giving prior notice to the other and without alleging cause, exercises the right to terminate a contract for an indefinite period.\u201d.<\/em><\/p>\n<\/blockquote>\n\n\n\n

From the definition provided in Article 75 of our Labor Code, we can infer that either party involved in an indefinite-term employment contract may terminate the employment relationship. In other words, dismissal can be initiated by either employees or employers.<\/p>\n\n\n\n

The party initiating the termination process has the obligation to give prior and unequivocal notice of their intention to end the employment contract. In our labor law, this notice is called advance notice.<\/p>\n\n\n\n

Failure to provide prior notice entitles the employer to compensation in the proportion established by Article 76 of the Labor Code. No cause is required to terminate employment contracts.<\/p>\n\n\n\n

Cases in which eviction has no effect<\/strong><\/h2>\n\n\n\n

While it is true that in an eviction, it is not necessary to allege a cause to terminate the employment contract, in accordance with article 75 of the Labor Code, the eviction does not take effect and the indefinite-term contract remains in force, if the employer exercises his right in the following circumstances:<\/p>\n\n\n\n

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  1. During the time in which it has guaranteed to the worker that it will use its services, in accordance with the provisions of article 26.<\/li>\n\n\n\n
  2. While the effects of the employment contract are suspended, if the suspension is caused by a fact inherent to the person of the worker.<\/li>\n\n\n\n
  3. During the employee's vacation period.<\/li>\n\n\n\n
  4. During the working woman's pregnancy and up to three months after childbirth;<\/li>\n\n\n\n
  5. In the cases indicated by article 8 of law 135-11 of June 7, 2011.<\/li>\n\n\n\n
  6. In the cases indicated by article 392 of the Labor Code.<\/li>\n<\/ol>\n\n\n\n

    Nullity of the eviction when the employer has guaranteed that he will use the services of the worker for a certain determined time<\/strong><\/h3>\n\n\n\n

    As can be seen, the employer cannot exercise the right of eviction against a worker who has been guaranteed certain working conditions by contract and has been given guarantees that his contract will not last less than a previously agreed time.<\/p>\n\n\n\n

    For example:<\/p>\n\n\n\n

    If an employer hires a nationally or internationally renowned chef and offers him special working conditions, stipulating in his contract that it cannot be for less than three years, the employer cannot decide to terminate said contract by way of eviction.<\/p>\n\n\n\n

    This does not mean that if the employee commits serious misconduct, the employer is bound to the employment contract for the agreed-upon term. In that case, the employer must terminate the employment contract through dismissal, citing the employee's proven misconduct.<\/p>\n\n\n\n

    Nullity of the eviction during the suspension due to a cause inherent to the person of the worker<\/strong><\/h3>\n\n\n\n

    Likewise, regarding the second point, if the employment contract is suspended due to a cause inherent to the person of the worker, the employer will not have the right to exercise a dismissal against him.<\/p>\n\n\n\n

    The grounds for suspension inherent to the employee are those established in Article 51, paragraphs 3, 5, 6, and 7, of the Dominican Republic's Labor Code. However, it is important to note that if the grounds for suspension are not inherent to the employee, the employer may validly terminate the employment relationship by applying the principle of reasonableness established in Article 40.15 of the Constitution.<\/p>\n\n\n\n

    We saw this very frequently during the period of the pandemic caused by COVID-19 or SARS-CoV-2 where a huge number of workers were evicted while they were in a period of suspension by application of article 51, ordinal 4th.<\/p>\n\n\n\n

    Furthermore, if the worker has committed any of the offenses listed in article 88, he may be subject to justified dismissal as established by the Third Chamber of the Supreme Court of Justice in several rulings.<\/p>\n\n\n\n

    Eviction is not permitted during the holidays<\/strong><\/h3>\n\n\n\n

    During an employee's vacation period, the employer cannot terminate the employment relationship, according to Article 190 of the Labor Code. However, upon completion of the vacation period, the employee may be terminated if they are not protected by any of the exceptions stipulated in Article 75 and Law 135-11.<\/p>\n\n\n\n

    Nullity of the eviction against the pregnant woman<\/strong><\/h3>\n\n\n\n

    Eviction is also not permitted when the female employee has duly notified the employer of her pregnancy. In this regard, Article 232 of the Labor Code establishes that: \u201cThe dismissal carried out by the employer during the period of the worker's pregnancy and up to three months after the date of delivery is null and void.\u201d.<\/em><\/p>\n\n\n\n

    In cases where the worker has not exhausted her prenatal leave and, in addition, requests to enjoy her vacation (if she has acquired the right), the period of three months after childbirth will be extended until the worker fully enjoys her postnatal leave and her vacation. <\/p>\n\n\n\n

    This scenario could arise if the employee and employer agree that the employee will begin her maternity leave one day before giving birth. It's important to remember that, according to ILO Convention 183, the employee is entitled to 14 weeks of leave (98 days). <\/p>\n\n\n\n

    If she also takes vacation immediately following maternity leave, the employer cannot dismiss the employee, even if she has completed three months since giving birth.<\/p>\n\n\n\n

    Our Supreme Court of Justice has successively and consistently established the following criterion:<\/p>\n\n\n\n

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    \u201cIt is not enough for a worker to demonstrate her pregnancy status for the dismissal or termination carried out by the employer to be declared null and void; rather, it is necessary to prove that she communicated her condition to her employer, or that the employer, through the external signs produced by that condition, was aware of it, and it is up to the judges of the merits to determine that at the time of the termination of the contract in question by dismissal or termination of a pregnant woman, the employer was aware of that condition.\u201d. <\/em><\/p>\nSupreme Court of Justice, BJ 1215, Judgment of the First (01) of February 2012, Santo Domingo, Dominican Republic.<\/strong><\/em><\/cite><\/blockquote>\n\n\n\n