DOMINICAN REPUBLIC Law and Practice Contributed by: Carlos Hernández Contreras, Hernández Contreras & Herrera
Labor Code, the most common of which are as fol - lows. • Lack of probity and honesty: (a) theft, fraud, and breach of trust (No 3); (b) unjustified absences and abandonment of work (Nos 11 and 13); and (c) violence or fighting (No 3). • Dismissal must take place within 15 days of the misconduct being discovered. If this period expires, the right to dismiss expires. Furthermore, dismissal must be communicated in writing to the employee, stating the reason for dis - missal and indicating the relevant section of Article 88. It must then be communicated to the Ministry of Labor within 48 hours. If the employer fails to notify the employee within 48 hours, or if, even within 48 hours, it does not indicate the cause, or if, having correctly notified the dismiss - al, it fails to prove the misconduct committed by the employee, it shall be obliged to pay severance pay, Termination of the employment contract by mutual agreement is possible and must be done in writing and before a notary public. No other formality is required. Normally, when the contract ends due to eviction, the employee usually signs a release from receiving severance pay. The employer does not have to sign anything except the check or bank transfer. The discharge receipt does not have to be notarised. 7.5 Protected Categories of Employee Desahucio (discretionary dismissal) is not permitted in the following cases. • During the time for which the employee has been guaranteed that his or her services will be used. • If a suspension of the contract is in force that has as its cause circumstances inherent to the worker’s person. Even so, disciplinary dismissal is not pro - hibited; nor is dimision (constructive discharge or indirect dismissal). six months’ salary, and legal costs. 7.4 Termination Agreements
• During the employee’s vacation. • During pregnancy and three months or 14 weeks after the date of delivery (birth of the child) of the worker. • During the period of union protection (union privi - lege) in favour of union leaders. • If the worker is affected by HIV and AIDS. As for disciplinary dismissal, this is permitted against a woman under maternity protection if the employer obtains authorisation from the Ministry of Labor. It is also permitted against a union leader with authorisa - tion from the labour court. 8. Disputes 8.1 Wrongful Dismissal Disciplinary dismissal must be carried out in accord - ance with the following principles. • Principle of causality – there must be a causal link between the employee’s misconduct and the dismissal, ie, it must be proven that the employee committed the misconduct and not someone else. • Principle of proportionality – there must be propor - tionality between misconduct and the penalty to be imposed. Dismissal, which is the most extreme penalty in an employment relationship, can only be justified in the event of serious misconduct, ie, a “serious culpable act committed by one of the par - ties, which entitles the other party to terminate the contract without liability.” • Principle of opportunity – also known as the principle of temporality of the offence, accord - ing to which dismissal must be exercised within a reasonable time, or in any case must be exercised within the period established by law: 15 days from the moment the employer becomes aware of the employee’s offence. The Supreme Court of Justice has ruled that “the seri - ous nature that must accompany a work misconduct in order to be considered grounds for dismissal is not determined by the fact that such misconduct causes serious harm to the employer, but rather that it con - stitutes a violation of the employee’s fundamental obligations or that, by its nature, it makes it impos -
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