Dismissal
Terminations are a crucial aspect of employment relationships that can have a profound impact on both employers and employees. The termination of an employee’s employment relationship with his or her employer is a complex process that must be carried out in accordance with applicable labor laws and the terms of the employment contract. Terminations can occur for a variety of reasons, such as poor performance, violation of company policies, economic reasons, changes in organizational structure, or even wrongful termination.
Our article will explore the rights and responsibilities of both employers and employees in the context of layoffs. In addition, the legal consequences of unjustified dismissals and how to seek redress in the event that a dismissal is deemed to have been unfair will be discussed.
Understanding layoffs and the laws surrounding them is critical for both those who manage employees and those who work for an employer.
Common grounds for dismissal
Common causes for termination may vary by company and applicable labor laws, but often include the following:
Poor Performance: When an employee fails to meet the performance expectations set for his or her job and does not show significant improvement despite the training or support provided.
Policy Violation: Repeated failure to comply with internal company policies, such as frequent tardiness, misconduct in the workplace, or inappropriate use of company resources.
Economic Reasons: When the company faces financial difficulties and needs to reduce costs, which may result in staff cuts or layoffs to maintain economic viability.
Organizational Changes: Company restructuring, merger or acquisition may lead to job elimination or changes in job responsibilities.
Serious Misconduct: Serious behavior such as harassment, theft, workplace violence or misconduct may result in immediate dismissal.
Lack of Qualifications: If an employee does not possess the skills or qualifications necessary to perform his or her job effectively and cannot acquire them within a reasonable period of time.
Downsizing: When a company decides to reduce its workforce due to decreased demand for products or services, changes in technology or other reasons.
Breach of Contract: If an employee significantly breaches the terms of his or her employment contract, this may result in termination.
Excessive Absenteeism: Frequent and unexcused absence from work may result in termination, especially if it affects the operation of the company.
Unjustified Dismissal: In some cases, an employee may be dismissed without valid cause or without following the proper legal procedure, which could be considered an unjustified dismissal.
Legal Framework. Dismissals in Mexico
In Mexico, dismissals are regulated by a series of labor laws that establish rights and responsibilities for both employers and employees. The main legal framework related to dismissals includes:
Federal Labor Law (LFT): this is the most important federal labor legislation in Mexico. The LFT regulates labor relations, including terms and conditions of employment, dismissals, severance payments and workers’ rights. It establishes that dismissals must be based on just cause, and the procedures to be followed in carrying out a dismissal and the rights of employees in the event of unjustified dismissal.
Individual Employment Contracts: These contracts specify the terms and conditions of employment, including the causes and procedures for dismissal.
Internal Labor Regulations: Companies may have internal regulations that supplement the LFT and detail specific company policies and procedures related to dismissals and other labor issues.
Joint Training, Training and Productivity Commissions (Comisiones Mixtas de Capacitación, Adiestramiento y Productividad, COCAPs): In companies with more than 50 employees, COCAPs may intervene in dismissal processes and mediation between employers and employees.
It is important to note that in Mexico, dismissals must be based on just cause and follow proper legal procedures. In the event of unjustified dismissal, employees are entitled to severance pay and, in some cases, to be reinstated in their jobs.
What are the rights of an employee in the event of a dismissal?
Right to Just Cause: Employees have the fundamental right to be dismissed only for just cause, such as poor performance, misconduct, economic or structural reasons, among others.
Compensation in Case of Unjustified Dismissal: If an employee is dismissed without just cause, he/she is entitled to receive compensation equivalent to three months’ salary and payment of wages due up to the time of dismissal.
Prior Notice: In some cases, employers must give prior notice to the employee before proceeding with the dismissal, especially in collective dismissals.
Liquidation: Employees are entitled to receive a liquidation that includes benefits and rights accrued during their employment, such as unearned vacation, Christmas bonus and seniority premium.
Reinstatement: In certain situations, if a dismissal is considered unjustified, the employee is entitled to be reinstated in his or her job.
Employer Responsibilities for Layoffs:
Just Cause: Employers must have justifiable and demonstrable cause to terminate an employee. This involves clearly documenting and arguing the reasons for termination.
Legal Procedure: Employers must follow proper legal procedures for carrying out a termination. This may include giving written notice to the employee and paying appropriate severance pay.
Respect Labor Rights: Employers must respect the employee’s fundamental labor rights, such as the right to nondiscrimination and the right to freedom of union association.
Deliver the Settlement: Employers have the obligation to deliver the corresponding settlement in a timely and complete manner.
Non-Discrimination: Dismissals cannot be based on grounds of discrimination, such as gender, sexual orientation, race, religion, among others.
Compliance with the LFT: Employers must comply with all provisions of the LFT and other labor laws related to dismissals.
It is essential that employers act ethically and respect the rights of employees when carrying out a dismissal. Mexican labor law seeks to protect workers’ rights and ensure that dismissals are fair and well-founded.
Unjustified Dismissal
In essence, it refers to the termination of an employee’s employment contract without valid cause or without following the proper legal process.
Causes of Unjustified Dismissal:
Lack of Valid Cause: In an unjustified dismissal, there is no legitimate or valid reason to terminate the employment relationship. Common causes, such as poor performance, misconduct or violation of policies, do not apply in this case.
Failure to Follow Legal Procedures: Even if there are reasons for termination, failure to follow proper legal procedures, such as providing reasonable notice or severance pay, can make a termination unjustified.
Consequences of Wrongful Dismissal:
Legal Redress: Wrongfully terminated employees may seek redress through legal action. This may include reinstatement to the job, payment of back wages, or an award of damages.
Employer Costs: Employers may face significant legal and financial consequences if a court determines that a termination was unjustified. This could include the payment of back wages, fines and other legal costs.
Prevention and Recourse:
Clear Labor Policies: To avoid wrongful termination situations, companies should establish clear labor policies and follow fair and consistent procedures when dealing with performance or misconduct issues.
Legal Counsel: Both employers and employees can benefit from legal counsel in termination cases. An attorney specializing in employment law can help in understanding the rights and options available.
Lawyers in los Cabos
Legal advice in cases of dismissal, whether just or unjustified, is crucial to protect the rights of both the employer and the employee. At Law In Cabo we offer advisory services in:
Just Cause Analysis: A lawyer can assist the employer in determining whether there is just cause for termination.
Legal Procedures: Lawyer can guide the employer through the legal procedures necessary to carry out a fair termination. This includes providing the employee with adequate notice (if necessary) and ensuring that all legal steps are followed.
Risk Minimization: The lawyer can help the employer minimize the legal risks associated with the termination by ensuring that all legal obligations, such as payment of benefits and settlements, are met.
Evaluation of Unfairness: A lawyer can evaluate whether the termination was unjustified and whether the employee’s rights were violated. This involves reviewing the circumstances of the termination, the employment contract and any related evidence.
Severance Claim: If it is determined that the termination was unjustified, our attorneys can assist the employee in claiming severance pay, which generally includes three months’ salary and back wages.
Reinstatement: In some cases, if it is proven that the termination was unjustified, the attorney can work on reinstatement of the employee to his or her job.
Legal advice in dismissal cases is essential to ensure that the rights of both parties are respected and that the labor laws in force in Mexico are complied with. Both employers and employees can benefit from having an experienced lawyer from our firm guide them through this process and protect their interests.
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Learn about the rules that are carried out for an employment contract in our next article.
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