One thing is very clear under Venezuela legislation, it is almost impossible to dismiss a worker.
A. Job Stability
Theoretically, the Labour Law allows employers to terminate workers with or without cause.
- Employers are able to terminate workers with cause based on the grounds listed in Article 79 of the Labour Law. Employers have a term of five workdays for reporting the justified dismissal to the labor courts.
- Employers are also able to dismiss workers without just cause, however, such termination shall only be effective if the employee accepts the termination and receives payment of an indemnity for dismissal. The indemnity must be equal to the amount the worker receives for seniority benefit.
Therefore, under the Job Stability regime, employers are able to dismiss workers without just cause, as long as the worker accepts the termination by receiving an amount equal to the seniority benefit as way of indemnity.
In case the employer dismisses the worker without cause and the worker does not accept such termination, then the dismissal is not legally possible. Under this scenario, the worker has the right to ask for reinstatement and payment of back wages to the Labor Judge within 10 workdays after the dismissal takes place.
Article 91 of the Labour Law states that the employer must voluntarily comply with the decision of the Labor Court within three working days following its publication, if not, the judge will seize the assets of the employer to cover the payment of unpaid salaries and labor benefits. If the employer refuses to comply with the reinstatement order, it will be charged with contempt of judicial authority, punishable by six to 15 months’ imprisonment.
Should the worker dismissed without just cause receive the payment of her/his seniority payment, Article 94 of the Labour Law provides that if she/he receives an additional amount equivalent by way of indemnity, the aforementioned procedure will be inadmissible. If the acceptance by the worker occurs during the course of the procedure, the latter will terminate upon additional payment of unpaid salaries.
The worker will always have the right to file a lawsuit against her/his employer asking for the indemnity for dismissal and any other difference regarding labour benefits. However, dismissal without cause does not give the worker the right to request damages.
B. Bar Against Dismissals
In practice, on December 27, 2012, the Presidential Decree on Special Bar against Dismissals was extended again. The Special Bar Against Dismissals means that employers may not dismiss, impair the labour conditions, or transfer a worker without just cause from January 1°, 2013 until December 31, 2013. The special protection against dismissals was initially decreed in April 2002.
Therefore, except for top-management workers, temporary and occasional workers, and those with less than one month of services; in order to dismiss, impair the labour conditions, or transfer an employee, employers must obtain previous authorization from the Office of the Labour Inspector through a dismissal qualification process based on the grounds set forth in Article 79 of the Labour Law.
Failure by the employer to make a request to dismiss a worker shall give such worker the right to ask for reinstatement and payment of back wages, as well as additional labor benefits that were not received. Failure to comply with reinstatement order may trigger six to 15 months of arrest when flouting an order to reinstate a worker protected by bar against dismissal.
