Can a worker with reinforced job security be reinstated if there is just cause for terminating their contract?

The high court, in its decision, denied the worker’s request for reinstatement and emphasized that “it is not possible to expect that under the guise of obtaining a presumed guarantee due to disability, one can evade discrimination against another worker for sexual harassment, without the employer being able, in fulfilment of their duties, to dismiss them for just cause.”

Below, we outline the most relevant aspects that must be considered regarding this decision.

Summary of the Facts

In the case studied by the Court, a worker sued his former employer seeking, among other things, reinstatement and the payment of a sanction of 180 days' wages as stipulated in Article 26 of Law 361 of 1997, considering that at the time of their dismissal, they enjoyed reinforced job security due to health reasons and, in this regard, the authorization of the Ministry of Labour was required for their dismissal. They also indicated that, although nis employer terminated the employment relationship for just cause, this situation arose from an “unfortunate mistake” of sending “an obscene video to the wrong person outside their working hours,” thus considering that the sanction was neither gradual nor proportional, given that the events occurred outside of working hours, and they are a person of “special protection.”

Both the first-instance court and the second-instance tribunal denied the claimant's requests, finding that there was evidence demonstrating that the incidents of sexual harassment were not merely an unfortunate mistake, but rather frequent acts for which the worker even offered money.

It was also established that the claimant was not in a health condition that impeded or hindered the normal and adequate performance of their duties, and therefore was not entitled to the guarantee of reinforced job security.

The Supreme Court of Justice confirmed this decision, making some clarifications about the cases in which it is appropriate to request authorization from the Ministry of Labour for the dismissals of workers with reinforced job security due to health reasons, as well as the importance of Convention 190 of the International Labour Organization (ILO).

When must the employer request autorización from the ministry of labour?

The Labour Chamber of the Supreme Court of Justice recalled that in judicial proceedings where the “disability protection” is alleged, it is up to the worker to demonstrate that at the time the relationship ended, they had a disability, and that the employer was aware of this situation or that it was evident. Meanwhile, the employer must rebut the presumption of discriminatory dismissal; to do so, it is necessary to prove that the termination of the contract was based on an objective cause, just cause, mutual agreement, or free and voluntary resignation, and that reasonable adjustments were made. If such adjustments cannot be made, the employer must demonstrate that they would constitute a disproportionate or unreasonable burden.

In this regard, for this corporation, when an objective or just cause is established and the presumption of discriminatory dismissal based on the worker's disability is rebutted, it is not obligatory to approach the Ministry of Labour. Conversely, intervention from this authority will be necessary when the dismissal is based on the incompatibility of the worker's disability with the performance of an occupational role within the company.

It is important to note that this position differs from that established by the Constitutional Court, which has indicated in repeated jurisprudence, particularly in judgement C-531 of 2020, that “dismissing or terminating the contract of a person due to their limitation is ineffective unless there is prior authorization from the Ministry of Labour confirming the existence of just cause for the dismissal or termination of the respective contract.”

This has been reaffirmed in judgements such as SU-061 of 2023, where it states that for the Constitutional Court, health protection is primarily composed of four guarantees: (i) the general prohibition of discriminatory dismissal, (ii) the right to remain in employment, (iii) the employer's obligation to seek authorization from the Labour Inspector to dismiss the worker, and (iv) the presumption of discriminatory dismissal. Accordingly, in any eventual judicial process, it will be up to the judge to determine the position that will apply to each specific case, considering their scope of competence.

What did the supreme court of justice indicate regarding sexual harassment conduct?

Although the claimant considered that the termination of the employment relationship due to the incidents constituted “exaggeration” and “disproportion,” the Court was clear in stating that such arguments were inadmissible, as they meant attempting to normalise violent behaviours and practices against the integrity and dignity of individuals in the workplace, which are unacceptable as they disregard international standards advocating for the total elimination of violence and harassment. Furthermore, it stated that although the ILO Convention 190 on violence and harassment has not been ratified by Colombia, it serves as a guide in interpreting and harmonising Law 1010 of 2006, which establishes mechanisms for preventing, correcting, and sanctioning workplace harassment.

What Is the Importance of ILO Convention 190?

This Convention, adopted by the International Labour Organization on 21 June 2019, establishes mechanisms for preventing and protecting against violence and harassment in the workplace, with the states that ratify it committing to ensuring the monitoring of its application, avenues for remedy and redress, as well as its guidance and dissemination. Additionally, this instrument imposes the obligation to adopt legislation that guarantees the right to equality and non-discrimination in employment.

In Colombia, the Constitutional Court, in judgement T-140 of 2021, recognized the importance of this instrument gaining binding effects in Colombia to combat practices of sexual violence and harassment in the workplace, which is why it urged the National Government and the Congress of the Republic to achieve the ratification and approval of the Convention.

In accordance with the above, there is currently a bill, No. 217 of 2024, in the Senate of the Republic aimed at approving the Convention, which is pending its second debate.

Lastly, it is important to mention that employers must adhere not only to the provisions of ILO Convention 190 but also to the stipulations of Law 2365 of 2024, which was recently approved and establishes new obligations for employers concerning the prevention, protection, and response to incidents of sexual harassment.

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