Colombia: When is the Reinstatement of the Employee Considered Inadvisable?
Author: Alejandro Castellanos
It would be inadvisable to reinstate employees who were dismissed for certain just causes; e.g., the employee’s preventive arrest for more than 30 days.
The Labour Chamber of the Supreme Court of Justice established in decision No. SL816-2022 that, if an event or circumstance should arise in which a loss of trust in the employee has occurred, it may be inadvisable to reinstate the employee, as it constitutes an unavoidable incompatibility, since there are reasonable grounds for the employer to allege the total loss of trust or credibility in the employee.
However, the inconvenience of reintegrating the worker to the company must go hand in hand with qualified, suitable and imperative conditions, studied by the judge in each specific case.
Key Action Points for Human Resources and In-house Counsel
In this particular case, no circumstances were proven that would make it incompatible or inadvisable to reinstate the claimant, especially since there was no evidence of the claimant’s responsibility in the offence for which he was criminally investigated. However, this decision is an important precedent for cases in which the criminal responsibility of the employee might not be proven, but evidence exists of the employee’s misconduct.