In past occasions we wrote a little about the relevant aspects that employers should take into account when dismissing an employee without justified cause. This time, we will write a little about the relevant aspects to take into account when trying to dismiss him/her with justified cause, that is, based on article 48 of the Nicaraguan Labor Code.
- The first thing we must be clear about is that when we want to dismiss an employee with justified cause, it must be indicated as such in the Employment Contract, in the Labor Code or in the Internal Labor Regulations approved by the Labor Ministry.
The Labor Code states in article 48 the following:
- a) Serious lack of integrity;
- b) Serious offense against the life and physical integrity of the employer or co-workers;
- c) Slanderous or libelous expression against the employer that causes discredit or economic damage to the company;
- d) Any violation of the obligations imposed by the individual contract or internal regulations, which have caused serious damage to the company.
- The justified cause for dismissal may also be contained in the Internal Labor Regulations duly approved by the Labor Ministry. This regulation must specifically stipulate that such an offense committed by the employee is punishable with dismissal for justified cause; if the offense committed by the employee contemplates another type of sanction, then the Labor Ministry will not authorize the dismissal.
- The request for dismissal for justified cause must be filed with the Departmental Labor Inspectorate of the Labor Ministry within a period of no more than thirty days after the employer has learned of the fact.
- The worker must not be on subsidy or vacation at the time of requesting dismissal for justified cause before the Ministry of Labor, since the National Labor Court of Appeals of Nicaragua through Judgement 187/2015 at 2:50 pm of 30 of January of two thousand and fifteen, considered that requesting a dismissal for justified cause while the employee is on subsidy or on vacation is a violation in accordance with articles 80 and 46 of the Nicaraguan Labor Code.
- Special care must be taken that to request dismissal for justified cause before the Labor Ministry, a sanction has not already been applied to the employee for the cause for which dismissal is requested, since in accordance with the constitutional principle contained in article 34, numeral 10, of the Political Constitution of Nicaragua, the employee cannot be sanctioned twice for the same offense (non bis in idem). It usually happens that when the employee commits an offense, the employer suspends him and then goes to the Labor Ministry to request dismissal for justified cause for that offense –there is the risk that the employee claims that he has already received the sanction of suspension and that, in accordance with the principle mentioned in this paragraph, no other sanction should be imposed on him/her for the same offense.
- The procedure to dismiss an employee for justified cause is regulated by Ministerial Agreement No. JCHG-019-12-08 “Relative to Oral Labor Administrative Procedure”, approved on December 10, 2008 and published in La Gaceta, Diario Official No. 237 of December 12, 2008.
- While the procedure is followed before the Labor Ministry and it has not ordered the dismissal for justified cause, the employer must continue to pay the employee´s salary.
- The employer must conclusively prove to the Labor Ministry that the employee has committed the offense that gives rise to dismissal for justified cause; to do this, he must ensure that he gathers convincing evidence to demonstrate the fault of the employee. If the employer cannot prove this to the Labor Ministry, this authority will not authorize the dismissal for justified cause.
- Finally, if the procedure for dismissal for justified cause is followed and the Labor Ministry declares it valid and authorizes it, the employer must pay the worker only the proportional part of the benefits such as vacations and the thirteenth month (Article 42 of the Labor Code). Indemnity for antiquity is not paid in this case.
Our recommendation for companies is that when the employee commits an offense, before taking any action against him/her and submitting a request for dismissal for justified cause before the Labor Ministry, the employer meets with a labor lawyer to review the specific case and obtain a legal opinion about this in order to have a better scenario to take a decision on the manner to dismiss the employee. If the employer finds it difficult to follow the path of dismissal for justified cause, he may have the option of dismissing the employee without justified cause, and for this he must bear in mind that he should not communicate to the employee the reason for dismissing him/her, as he is exposed for the employee to demand his reinstatement to the same job claiming that said dismissal is a violation because the employer exposes a cause without having followed the procedure established by law for dismissal for justified cause.