t is common for questions to arise regarding the procedure employers must follow before applying a disciplinary measure or a dismissal without employer liability when a breach has been committed.
On this matter, it is important to distinguish between workers in the public and private sectors, since, except in exceptional cases, only the former are subject to due process prior to the application of disciplinary measures.
The right to an administrative procedure prior to the imposition of any sanction, where the worker must be charged in a concrete and detailed manner with the alleged misconduct, along with the obligation to hold a hearing to present the evidence supporting the procedure and to allow the worker to exercise their right of defence, is inherent to the public employment regime. In the private sector, as a general rule, such procedure will only apply if the employer voluntarily decides to establish it, as has been reiterated on multiple occasions by the courts:
“In the case under review, since it concerned an employment relationship where the employer was a private company, there was no need to conduct a disciplinary procedure in order to dismiss, given that no legal provision or internal regulation required it -at least, such circumstance was not proven in the record-”. (Decision 1126-2012 of the Second Chamber of the Supreme Court of Justice, 10:45 a.m., December 12, 2012, emphasis not in the original)
And this remains applicable today:
“In the matter under analysis, it is an employment relationship where the employer is a private company. Therefore, there was no need to conduct a disciplinary procedure in order to proceed with the claimant’s dismissal, since the record shows no legal provision or internal regulation requiring such a process. However, this does not prevent private sector companies from establishing and regulating disciplinary procedures or audits when they become aware of misconduct committed by employees.” (Decision 1259-2021 of the Second Chamber of the Supreme Court of Justice, 11:10 a.m., June 4, 2021, emphasis not in the original)
Consequently, in private-sector companies, once the misconduct that gives rise to the sanction (whether a warning or even dismissal without liability) has been confirmed, the employer may validly enforce it without the need to follow a specific procedure imposed by law. Thus, there is no obligation to comply with all the prior steps mentioned earlier, such as notifying the employee of the evidence against them or granting a hearing to exercise their right of defence.
Regarding internal procedures in private companies, the Second Chamber of the Supreme Court of Justice has stated:
"V.–REGARDING THE VIOLATION OF DUE PROCESS: The jurisprudence of the Constitutional Chamber has been clear in the sense that due process is applicable in the public sector and eventually in the private sector, but not in the aspects that concern us in the sub judice, since in the latter sector it is limited to the need for the employer to impute the fault in the dismissal letter, for which reason it has been said that, in the private sector, rather the principle of freedom of dismissal prevails (Article 85, subsection d) of the Labor Code), and in such eventuality, the worker must necessarily resort to the courts in order to claim the rights that may have been violated by the dismissal. (On this aspect, see Constitutional Chamber rulings numbers 768-04; 939-04; 353-04; 398-04; 23-05). This Chamber, for its part, has also reiterated the criterion that in the private sector no procedure must be carried out prior to dismissal, unless there is a rule that so provides, and, in this sense, in judgment number 93, at 14:20 hours on February 18, 2004, it was indicated: ‘Finally, regarding the claim concerning the necessity of having followed a procedure prior to dismissal, it must be stated that such argument lacks legal basis, and this Chamber, repeatedly, has pointed out that in employment relations governed by private labor law, there is no obligation whatsoever to carry out a procedure prior to dismissal, due to the regime of freedom that prevails in this matter, as derived from subsection d), of Article 85 of the Labor Code.’ Also, in judgment number 23, at 10:40 hours on January 26, 2005, on this point, it was stated: ‘Thus, the requirement of a procedure prior to dismissal, and the consequent nullity or invalidity thereof in the case of its nonobservance, exists in the private company only if, in the labor legislation governing it, it is exceptionally provided as part of a stability regime, with clear mechanisms, such as reinstatement, to enforce it…’ On this point, rulings numbers 193, at 15:30 hours on June 26, 1996; 260, at 9:50 hours on October 29, 1997; 72, at 9:30 hours on January 26, 2000; 438, at 9:30 hours on August 3; and 722, at 10:30 hours on November 30, both of 2001, may also be consulted. Thus, the violation of due process alleged by the claimant has not been proven." (Decision 1043-2005 of the Second Chamber of the Supreme Court of Justice, 09:45 hours, December 16, 2005)
The exceptions, in addition to cases where the company has already established in its policies or regulations a procedure to be followed, are the following:
a) Workers with special legal protection, although the law does not impose how the company must investigate the misconduct or identify the responsible party, it does require that a third party (a judge or the Labor Inspectorate) authorize the dismissal.
b) Workers subject to a suspension without pay of up to 8 days as a substitute for dismissal without liability: before applying this measure, the worker must be heard, along with any colleagues they designate (Article 68, subsection e, Labor Code).
c) Workers who are under the influence of alcohol or drugs, before applying a sanction the first time this occurs, they must be given the opportunity to declare whether they are addicted or if it was an isolated instance of consumption.
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