Minimum requirements
Employment contracts are deemed to be such if they meet three conditions:
(i) services are provided by the person directly;
(ii) subordination of the employee towards the alleged employer;
(iii) payment as remuneration for the service provided.
If these three conditions are met, the relationship will be considered an employment contract, disregarding the name or agreement the parties signed. Employment contracts can be either verbal or written.
However, in verbal contracts, the parties must agree, at least, on the following points:
(i) the nature of the service to be provided;
(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 allows the parties to freely determine the length of a fixed-term contract, but it cannot exceed four (4) years.
There is no absolute limitation on successive renewals; however, fixed-term contracts may not be renewed indefinitely. When the contract is agreed for a term of less than one (1) year, the parties may renew it by written agreement as many times as they deem appropriate, but after the fourth renewal, it may not be renewed for a period of less than one (1) year. In any case, the total duration of the contract, including renewals, may not exceed four (4) years.
If neither party expresses its intention to terminate the contract at least thirty (30) days prior to its expiration, it will be automatically renewed for a term equal to the initially agreed term or its extension, as applicable, without exceeding the maximum term of four (4) years. For contracts initially agreed for less than one (1) year, the fourth automatic renewal must be for a term of one (1) year.
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 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 for the first contract.
Notice Period
Colombian legislation only provides, in general, the need for a period of notice by the employer in the event of termination of 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 agreed term. In case the employer fails to comply with the period, the fixed-term contract will be renewed for the same term as initially agreed. While the employee, according to the law, is also obliged to comply with a period of notice on the same terms as 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 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.
