Colombia: Is it possible for the judge to assess the seriousness of the misconduct contained in the internal work regulations?

Through Ruling SL2857-2023, the Labour Cassation Chamber of the Supreme Court of Justice specified that the labour judge may determine the seriousness of the misconduct that motivates the termination of the employment contract with a just cause. Even if the employer and the worker had agreed in the employment contract, the collective agreement, or the internal regulations that the worker’s non-compliance was considered serious misconduct.

In this sense, according to the Court’s criteria, the judge will be able to determine whether the worker has indeed committed an offence and examine the circumstances of time, manner, and place of occurrence of the facts in order to conclude if there are reasons that justify the worker’s conduct according to the harm caused by the conduct.

Hence, the seriousness of the misconduct must always be preceded by an evaluative judgement by the judge, wherein the legal entity of the conduct provided for therein as just cause for dismissal is endorsed or disqualified according to the particular circumstances or characteristics of each case.

Therefore, for the Supreme Court to accept as serious misconduct that has been provided for in the regulations without any consideration whatsoever would be tantamount to accepting a type of strict liability that is prohibited in our legal system for these matters, in which the employee is deprived of his or her source of income with the drastic decision to dismiss him or her.

Thus, the Court departed from its position that emphasised that the labour judge had to establish whether or not the facts demonstrated constituted the alleged cause, but it was not his responsibility to qualify the fault committed by the worker when it was established as serious in nature by the parties to the employment contract.

Key Action Points for Human-Resources and In-House Counsel

In order to determine the legal entity of the conduct, either by action or omission on the part of the employee, the legal operator must not only ascertain if the employee actually committed the conduct but also observe the circumstances of time, manner, and place of the occurrence of the facts in order to infer whether there are reasons that justify the employee’s conduct or that may detract from the legal entity of seriousness, taking into account the special particularities of each case according to the effect caused by the conduct.

In accordance with the new position of the Court, we suggest that employers should review and define clearly, expressly, and specifically the obligations and prohibitions of workers and those circumstances that constitute serious misconduct. Thus, in the event of a breach of labour law, the employer, within the evidentiary material of the disciplinary process, must prove that the employee’s conduct denotes such seriousness and is supported by damage that justifies the termination of the employment contract, since under the criteria of the aforementioned ruling, the labour judge may qualify whether the fault is worthy of termination of the employment contract.

For additional information on any matter related to labour issues in Colombia, please contact Angélica María Carrión Barrero (Partner) of López & Asociados at angelica.carrion@lopezasociados.net or visit www.lopezasociados.net

For more information, please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.