Complaints About Workplace Harassment Filed by Former Workers before Internal Complaints Committees are Inadmissible

The Colombian Ministry of Labor recently responded to a query on the competence of Internal Complaints Committees (ICC) of companies or public entities, regarding complaints about workplace harassment made by former workers. In this regard, bear in mind that workplace harassment is understood as all those persistent and demonstrable actions directed against workers with the purpose of “instilling fear, intimidation, terror and anguish, to cause labor damages, generate demotivation at the workplace, or induce resignation”[1]. These behaviors can be done by both bosses or hierarchical superiors, as well as co-workers or subordinates.

Thus, the Colombian Ministry of Labor reminded the petitioner that the ICC of any company or entity is intended to prevent workplace harassment against workers, for which it must implement internal and confidential procedures through which it will ensure the resolution of conflicts arising between workers. However, in accordance with the functions recognized for these committees in Resolution 652 of 2012, their actions are purely conciliatory, requiring the presence of the involved parties so that the committee can mediate the situation and propose different solutions that may resolve the conflict and guarantee an improvement in workplace environment. However, the Ministry of Labor affirmed that this process cannot be carried out when one of the parties no longer works in the company, since approaching those involved to reach an agreement would not be possible. Likewise, the actions and decisions taken by the committee would have no effect since compliance with the agreements reached could not be guaranteed or enforced.

Therefore, the ministry affirmed that ICCs lack authority to receive and process these complaints presented by former workers of the companies, who must instead resort to judicial or administrative authorities so that the case can be investigated and penalties imposed in accordance with the provisions of article 10 of Law 1010 of 2006. It should be noted that one of the consequences of workplace harassment being proven is the legal presumption that the termination of the employment contract was without cause, with the corresponding payment of compensation required and possibly even nullification of the decision that led to the unilateral termination of the employment contract.

In BéndiksenLaw we can provide you with support and legal advice on this and any other labor issue, contact us.

[1] Article 2nd, of Law 1010, 2006.

Do you Know the Minimum Guarantees that You Must Provide For the Sale of Goods and Services?

Recently, the Colombian Superintendence of Industry and Commerce – SIC, referred to the minimum guarantee suppliers and / or producers must provide in terms of the quality and suitability of the goods and services they offer and what its scope includes. The Colombian Consumer Statute establishes that producers and / or suppliers of goods and services have an obligation to guarantee to consumers the quality, suitability, safety and good condition of the products and services offered. In the event the purchased products are damaged, consumers are able to request a repair free of charge, and in case the damage persists, they can request, at their choice, an additional repair, the exchange of the good for another of the same kind and characteristics or the total or partial refund of the price that was paid. Likewise, for cases in which the provision of services is purchased, the consumer has the right to demand the provision of the service under the conditions that were initially agreed upon or the refund of the price that was paid.

Following the above, in Judgment 1088 of 2022, the SIC affirmed that the minimum guarantee of quality and suitability of goods or services is not limited to the quality of the object or service itself but also extends to compliance with the terms and conditions that were agreed upon at the time the contract was executed, including the timely delivery of the good or the timely performance of the service. Thus, the guarantee begins from the moment in which the contract existed which implies the possibility of requiring the seller or the service provider to deliver the object or perform the work for which they were contracted in the previously stipulated terms.

For the case that was analyzed in the judgment, the petitioner had hired the building of an integral kitchen, paying an advance of the price to guarantee its construction. However, the defendant failed to comply with the agreed deadline for the delivery of this kitchen and refused refund the advanced payment when it was requested by the petitioner. Thus, the Superintendence found that these conducts had constituted a violation of the rights of the petitioner as a consumer, since the service had not been provided in a timely manner and under the terms that were agreed upon by both parties, in turn ordering the service provider to make the reimbursement of the amount that was paid in advance.

Remember the importance of guaranteeing not only the quality and suitability of the goods and services that your company offers, but also of fully complying with what is agreed in the contracts executed with your customers and clients. Our professionals have the knowledge and expertise to advise you in the drafting, reviewing and fulfillment of your contracts, contact us if you have any questions.

Cryptocurrency Transactions in Colombia Are Subject to Inspection by the Tax Authority

On January 28th, the Colombian National Tax Authority (DIAN) reported that, due to the popularization and increase in the use of virtual currencies, it has initiated actions aimed at supervising taxpayers who make use of these currencies. The purpose of these actions is to guarantee due tax control over those taxpayers who have omitted or inaccurately registered information regarding the income they have obtained from operations carried out with cryptocurrencies.

Likewise, the DIAN recalled that it has previously issued official documents[1] in which it indicates what the fiscal management that must be given to cryptocurrencies and the operations carried out with them is, as well as their correct filing, in order to comply with all the tax obligations that arise from the performance of operations with these virtual currencies. This way, the DIAN clarifies that with these measures it hopes to strengthen the fight against tax evasion and against money laundering and the financing of terrorism.

Therefore, we remind you of the importance of having correct counsel on these issues and the opinion of a tax professional to help ensure that you and your company comply with all tax obligations and avoid the imposition of sanctions. At BéndiksenLaw we have the experience and knowledge to help you. Contact us.

[1] Documents 314, 20733, and 35238 of 2018 and Documents 6321, 14244, and 20419 of 2019, among others.

Colombian Ministry of Labor Clarifies the Duration of Paternity Leave

The Ministry of Labor defines paternity leave as paid rest recognized to the father of a newborn, in order to guarantee the rights of the minor, ensuring the father´s accompaniment and care of the child during the first days of life without affecting the financial situation of the family[1]. For this reason, Law 2114 of 2021 extended its duration from eight (8) working days to two (2) weeks.

However, this law did not refer to the way in which these weeks should be counted, that is, whether only working days should be considered for counting this two (2) week term or whether, on the contrary, holidays should also be counted. Therefore, the Ministry of Labor recently issued an opinion resolving this concern and confirmed the existence of a regulatory gap regarding how to count this term. Thus, the ministry stated that in the absence of labor norms that regulate the counting of deadlines and terms, the provisions of article 70 of the Colombian Civil Code must be applied by analogy, according to which, the deadlines indicated in laws and decrees include holidays, unless expressly specified otherwise.

Therefore, the Ministry of Labor concluded that the period of time during which fathers will be able to enjoy their recognized paternity leave is given in calendar days and not working days, so holidays and weekends must be counted. In conclusion, paternity leave will correspond to fourteen (14) calendar days.

If you have doubts regarding the way in which this license or any other labor matter operates and affects your company, do not hesitate to contact BéndiksenLaw.

[1] Answer to petition No. 02EE2019410600000062800 of 2019.