Minimum requirements
Employment contracts are deemed as such if they reunite three conditions: (i) services are provided by the person directly; (ii) subordination from the employee towards the alleged employer; (iii) a payment as a retribution of the service provided. If these three conditions are met the relationship will be considered as an employment contract, disregarding the name or agreement the parties signed. Employment contracts can be both verbal and in writing.
However, in verbal contracts the parties must agree, at least, on the following points: (i) the nature of the service to provide; (ii) the amount and form of the compensation; (iii) the contract’s length. Apart from the general requirements for the existence of an employment contract, some contractual types demand specific requirements to be considered as such.
Fixed-term/Open-ended Contracts
In addition to having to comply with the general as well as any specific requirements that may apply, fixed-term contracts are obliged to be in writing to be considered as such. Fixed-term contracts can be signed with any employee, whether the service provided can be considered permanent or temporary within the organisation. The labour code establishes that the fixed-term contract length is free for the parties to determine, but it cannot exceed three (3) years. There is also no limitation for the possibility of successive fixed-term contracts or renewals.
However, in the case of fixed-term contracts agreed for an initial period of less than one (1) year, the law establishes a limitation of three successive renewals of the initial contract, after which the period of the contract will be considered for at least one (1) year, but can be renewed indefinitely.
While the labour code does not establish the need to argue a cause to terminate the contract by the expiration date, the case law has prohibited the termination of the employment contract when the decision can be deemed to have resulted from discriminatory reasons or infringes upon a superior hierarchical right.
Trial Period
The trial period must be agreed in writing. Its length varies depending on the type of contract agreed by the parties, but cannot exceed in any case two (2) months. For fixed-term contracts or definite period ones (i.e. employment contracts for completing a specific task or the occurrence of a specific event) the trial period cannot exceed a one-fifth part (1/5) of the term initially agreed. When considering the existence of successive employment contracts, the parties cannot agree to trial periods, but for the first contract.
Notice Period
Colombian legislation only provides, in general, the need of a period of notice by the employer in the event to terminate a fixed-term contract by its expiration date. The employer is obliged to notify the employee of his decision to terminate the contract by its expiration date at least 30 days before the occurrence of the term agreed. In case the employer fails to comply with the period, the fixed-term contract will be renewed for the same term than the initially agreed. While the employee, according to the law, is also obliged to comply with a period of notice in the same terms than the employer, this rule is nowadays not enforceable.
In some specific cases, the legislation provides the need to comply with a particular period of notice to terminate the contract alleging a cause or “justa causa”.
For employees considered to be the subject of a special protection (i.e. disabled persons, pregnant employees, certain unionised employees) the employer needs to observe an ‘a priori´ control procedure to terminate the contract. Although this is not deemed to be a period of notice, it often requires the observation of a notification to the employee of the procedure that will be followed.
