CHILE Law and Practice Contributed by: Constanza Contreras, Gabriela Muñoz and Juan Francisco Reyes, SCR Abogados
8. Disputes 8.1 Wrongful Dismissal
the employee representative at the safety committee ( comités paritarios ) may be lawfully terminated without prior court approval. In addition, an employee who is on medical leave ( licencia médica ) may not be dismissed on the grounds of business necessity or through at-will termi - nation mechanisms for the duration of such leave. An employee’s illness is not rightful ground for dismissal. Finally, dismissals based on discriminatory motives are strictly prohibited. This includes, in particular, any termination based on protected characteristics such as: • race; • colour; • sex; • gender; • maternity; • breastfeeding, nursing; • age; • marital status; • union affiliation; • religion; • political opinion; • nationality; • national origin; • socio-economic status; • language; • beliefs; • participation in professional associations; • sexual orientation; • gender identity; • parentage; • personal appearance; • illness or disability (including especially cancer); • social origin; or • any other reason intended to nullify or alter equal - ity of opportunity or treatment in employment and occupation. (See also 8.2 Anti-Discrimination .)
Judicial Review of Unlawful or Unfair Dismissals If an employee considers that the termination of their employment contract was unjustified, unfair or without legal cause, they may initiate a legal claim before the competent Labour Court. This action must generally be filed within 60 working days from the date of ter - mination. The 60-day limitation period to file a claim may be extended to a maximum of 90 working days if the employee first requests intervention by the Labour Bureau before filing suit and only for the number of days the process was active before the bureau. If the court rules in favour of the employee, it may award compensation (as reinstatement is only avail - able in limited, legally defined circumstances). Com - pensation generally includes: • payment in lieu of statutory notice (one month’s remuneration); and • legal severance for years of service, as would apply in dismissals due to business necessity or at-will termination. (Special rules apply to fixed- term or task employment agreements.) In addition, the court shall increase the severance per years of service payment between 30% and 100% surcharge based on the circumstances of the unlawful dismissal. All court-ordered compensation is adjusted for inflation and accrues legal interest from the date of termination to the date of payment. Labour Protection Procedure for Discriminatory or Retaliatory Dismissals Employees who believe they have been dismissed due to unlawful discrimination or in violation of fun - damental rights may initiate a claim under the Spe - cial Labour Protection Procedure ( Tutela Laboral ). This mechanism also applies to dismissals resulting from: • anti-union retaliation; • unfair labour practices; or • acts of victimisation following the exercise of legal labour rights.
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