The employer, in its role as owner of the company in which the workers provide their services, has certain powers granted to it by the Substantive Labor Code (CST).

These powers are framed in the direction of the company, the possibility of carrying out controls and the regulatory power. The latter power consists of determining the “rules” that will govern the behavior within each organization, internal norms that in most cases are embodied in the Internal Labor Regulations of each company.

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Among these powers is one of particular importance, the disciplinary power of the employer. This translates into the power that labor legislation grants to employers to impose sanctions on their employees, when they incur in behaviors that violate provisions established in the law, in the collective bargaining agreement, in the Internal Work Regulations or in the contract, allowing them to correct behaviors that may be detrimental to the company.

These sanctions are established in the Substantive Labor Code and imply the possibility for the employer to impose warnings, suspension of work activities and fines derived from the exercise of its disciplinary power. It is important to clarify that for the Supreme Court of Justice (CSJ) dismissal with just cause is not considered a disciplinary sanction.

Therefore, it is essential that the sanctioning power of the employer be exercised in a reasonable and proportional manner to the offense committed, and that the facts that are imputed are fully proven.

This includes that the disciplinary offenses, as well as the graduation, the corresponding sanctions and the procedure to apply them must be contained in the Internal Labor Regulations (RIT), which must be published and socialized with the workers, as provided in Article 120 of the CST.

The Supreme Court of Justice has specified that the nature of dismissal for just cause is not that of a sanction, so that in order to adopt a decision of this nature the employer, unless otherwise agreed, is not required by law to follow a disciplinary procedure (CSJ SL 2351-2020).

However, such procedure does allow to protect and document compliance with the right of defense (to be heard) and due process of the employee, and to fully prove the just cause for termination of the employment contract by the employer, as stated by the Constitutional Court (CC).

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The High Courts have repeatedly stated that the employee’s right to defense must be safeguarded in disciplinary proceedings, i.e., the possibility of contradicting the circumstances that possibly led to the violation of the provisions governing the employment relationship.

Similarly, in relation to due process they have stipulated that it must be complied with when it comes to applying a disciplinary sanction, if so agreed, either via convention, regulation or procedure designed by the employer (CC C-593-2014, CSJ SL 496-2021).

Article 7 of the labor reform bill, submitted to Congress last August 25, 2023, seeks to modify Article 115 of the CST, which currently only requires that the worker be heard in order to impose a disciplinary sanction.

Instead, the labor reform bill proposes to establish a due legal process to apply sanctions or dismissals with just cause, in which it is emphasized that the following principles must be respected within the procedure: “dignity of the worker, presumption of innocence, indubio pro disciplinado, proportionality, right to defense, contradiction and controversy of evidence, loyalty and good faith, impartiality, respect for good name and honor, and non bis in idem”.

The labor reform bill also directly stipulates a minimum procedure for disciplinary proceedings and terminations with just cause by the employer, imposing the obligation to make a formal communication for the opening of the process, formulation of charges, transfer of evidence to the employee, establishing a term to make a defense and dispute evidence, making a reasoned closing of the process, imposing a penalty proportional to the conduct and finally reviewing the decision. Additionally, legal terms are established to carry out such procedure.

The modifications proposed in the labor reform mean that the disciplinary procedure for private employers loses the freedom in the way it is carried out, and they must follow the provisions of the law.

In any case, to date, despite the fact that the labor reform bill has not been approved, case law and the law require that the right to defense (to be heard) must be respected for the imposition of sanctions on workers and in relation to due process that this is guaranteed when they have so agreed.

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