I- De facto dismissal and its effects
A de facto dismissal —the one in which the employer unilaterally separates the worker without a proven lawful cause— generally terminates the employment relationship, regardless of any liability it may create to pay severance for dismissal and the other applicable labor benefits under each country’s legislation. However, there are exceptions in which a de facto dismissal produces no effect, even if severance and all other legally required benefits are paid. These exceptions are the guarantees of employment stability, also known as grounds for job security (causas de inamovilidad), which make a de facto dismissal impossible and require the employer to follow a prior procedure. Without that procedure, the dismissal becomes discriminatory and gives rise to the worker’s reinstatement —preserving seniority— as well as to the payment of back wages (salarios caídos) or of wages not earned that are attributable to the employer, in addition to the resulting labor benefits.
II- Union immunity
Every country in Central America regulates guarantees of employment stability. In all of them, union stability —known as fuero sindical— is recognized. Beyond union officers or leaders while holding office (and for an additional period), it usually extends to the founders of unions and, in some countries, even to union promoters, candidates for union office, and interim officers, among others.
III- Pregnancy, postpartum, and breastfeeding
Likewise, all countries in the region recognize the guarantee for a worker who is pregnant, in the postpartum period, or breastfeeding. This protection covers the worker during pregnancy and for several months after childbirth; and in some countries the trend has been to extend that period through reforms in order to strengthen protection.
IV- Incapacity due to accident or illness
In every country of the region, a worker who has suffered an accident or an illness may not be dismissed while medically incapacitated, because this constitutes a suspension of the employment contract.
V- Chronic illness: El Salvador’s special guarantee
Countries such as El Salvador have extended this protection even to periods in which the worker is not on medical leave, given the special severity of the illness suffered. Through a reform to the Labor Code, El Salvador established the guarantee of stability for workers with a chronic illness requiring specialized treatment, which requires five conditions to be met in order to establish the guarantee:
- A diagnosis issued by an official health institution.
- That the illness be incurable.
- That the illness cause medical incapacities, even if intermittent.
- That it require specialized treatment or rehabilitation.
- That the diagnosis be validated by the treating physician.In practice, within judicial proceedings, the entire clinical record is usually required so that the judge, after a thorough review, can determine whether the five conditions are met. This tends to be a very long-term guarantee once it is deemed established, because it runs from the issuance of the chronic-illness diagnosis to three months after the specialized treatment ends, which is why it often becomes lifelong.
VI- Workers with disabilities
El Salvador also stands out with respect to workers with disabilities, since the law in force on this matter prohibits dismissal on grounds of disability. Although the view is not uniform as to whether this is a guarantee of employment stability in the strict sense, the position that it is has spread within the judiciary: to proceed with the dismissal of a person with a disability, a prior trial is considered necessary to confirm that the termination is not based on that condition. The requirement to prove the condition is a disability certification from the competent authority, the national registry, or the single disability card (these last two instruments not yet operational). This too becomes a very long-term protection, as it will last while the condition persists and could therefore also be lifelong.
VII- Costa Rica, Guatemala, and Nicaragua: other protected situations
In Costa Rica, the following are protected by a stability guarantee: adolescent workers (over 15 and under 18 years of age), workers who report acts of discrimination, those who report sexual harassment, and whistleblowers and witnesses of acts of corruption, as well as workers on paternity and adoption leave. In both Costa Rica and Guatemala, protection also covers workers involved in collective disputes of an economic, social, or legal nature (not necessarily unionized); and in Nicaragua, specifically when a collective agreement is being negotiated, protection extends to the signatories of the list of demands (pliego de peticiones), with significant case law having developed on reinstatement and the nullity of dismissal for workers in these circumstances.
VIII- When the relationship can end: resignation and mutual agreement
It is important to emphasize that the guarantees of employment stability discussed here operate as a limitation on —and even a prohibition against— a de facto dismissal by the employer, but not against a form of termination that reflects the worker’s freely expressed will, such as a voluntary resignation or a termination by mutual agreement of both parties. If the worker’s free and voluntary signature is obtained on a document that complies with the country’s legal formalities, it could be considered conclusive evidence in court in the employer’s favor, although it could not be ruled out that the worker may allege having been deceived or coerced into signing; the worker, however, would bear the burden of proof. In countries such as Honduras, in the specific case of a pregnant woman, she is deemed unable to waive her prenatal, postnatal, and breastfeeding rights.
IX- Conclusion
In conclusion, although there are some specific differences among the Central American countries —since some provide more stability guarantees than others— these guarantees constitute a clear exception to de facto dismissal and are clear evidence of protection that, once proven, makes it possible to demand reinstatement, with preservation of seniority and payment of back wages.