Chile Forum

I experienced my first taste of how the labor laws and judges work in Chile, very disappointing and disconcerting to say the least!! What a rude awaking to how the system works in Chile.

How can an employee, who more than likely stole money from their employer and made malicious comments on Facebook towards their employer before and after being fired, have the law and judge on their side? I would love to get into more details, but not in a blog. What I am looking for is advice and how to fight the system. How can a business owner in Chile prevail over a disgruntled employee out to take advantage of a corrupt labor system? Also, how can a judge be so one sided and corrupt? How can one fight a corrupt and partial judge in Chile?

Max

It's not corrupt. But the Nueva Justicia Laboral is heavily biased in favor of the employee.
If you have to go to court as an employer, 90% of the time you lose.

How can an employee, who more than likely stole money from their employer and made malicious comments on Facebook towards their employer before and after being fired, have the law and judge on their side?

"more than likely" doesn't cut it. If you actually caught the person stealing, you should have called the cops; at the very least to make out a denuncia for your protection. As for the Facebook comments, I don't think Chilean law knows about that internet stuff yet, so I would guess your ex employee got you for despido injustificado ..and the government probably provided his lawyer.

You need to study the Codigo de Trabajo before you just go and fire someone, it doesn't work like that here.
For small businesses especially, the system sucks, but i don't see any sign of change for the better.
Just get over it, and be more careful with your employees; they all steal here, given a half a chance.
And you can bet your a** they know more about the Labour Laws than you do.

more than likely stole money

I think the law would be corrupt if a judge finds in favour of an employer who fires someone on suspicion of theft, assuming you fired said employee for maybe stealing from you?

I don't agree with you that the system is corrupt here (as far as I know, Chile is known to be one of the least corrupt countries in the developing world), from your post (and you did mention there is more, so my comments are based solely on what you did post), it sounds like you unfairly dismissed someone and the law is very clear about that here. We've been through the system too and although we were surprised that the law is so heavily on the side of the employee, we certainly didn't not find it corrupt in any way. We "technically" did the wrong thing and we had to pay the price. Simple really.

If you want to fight this, get a lawyer, but if you unfairly dismissed someone, that is that. It's against the law and you are most likely going to have to pay this person out. I'd be making them an offer if I was you to make him/her go away quicker.

I'm not sure how malicious comments on Facebook affects anything.

Based on your post I would have to agree with the other 2 posters.

“More than likely stole money from their employer” isn’t good enough. Now if you had them on video tape pocketing the money and the court still ruled in their favour that would be corrupt. It is your accusation of their guilt against their claim to innocence, with out proof no court in Chile (or Canada or the US) would find them guilty of anything.

They very well may have stolen the money and that is truly unfortunate but with out concrete evidence you are S.O.L.

fraggle092 wrote:... they all steal here, given a half a chance.

Careful there. Maybe 80% or more but certainly not all. The secret is finding the truly honest ones with long-term work experience. The honest ones keep in contact with and associate with the other honest ones from their past work experiences and their recos should be the basis for hiring other honest employees preferably as a team and to root out the dishonest ones. Of course the dishonest ones will go to the boss and claim the honest ones are to blame for any theft.

Like I said, I would rather not go into details on here. If anyone is interested to hear more I would be more than happy to speak on the phone. Having said that and reading some comments here is some details.....

As far as, more than likely stole money to include food.....there are forged boletas and an open criminal case against ex-employees. Also, any malicious behavior towards an employer should be good enough cause, even on the internet social sites. Plus another ex-employee, who was fired also, stated others were stealing. The is another case in itself that the employer won and the employee had to resign voluntarily.

The court case.....the judge disallowed all evidence from the defense, but allowed all the evidence from the ex-employee's lawyer. The law is the law.......the demand was late according to the law, but the judge disallowed it. When the lawyer recalled it she was scolded and fined. It is my understanding in Chile law a lawyer can recall evidence if the judge initially says no.

One can say the system is not corrupt in Chile, but I disagree knowing what happened in this case. I know some Chileans who say the same not knowing about this case. I'm sure there are more Chileans who say the same about the labor system here in Chile.

Max, personnel issues are a minefield. All I can say is that an ounce of prevention is worth a pound of cure.
I can only offer a few comments based on personal experience:

Keep a tight rein on employees' access to cash and receipts.
An employment contract here is like getting married, it enforces certain obligations on you, the employer, that cannot easily be circumvented.
Find a trustworthy accountant to keep your books in order, to draw up labour contracts,and take care of the numerous payroll deductions the law obliges you to pay. The accountant should also be able to do the end-of contract paperwork required by the Inspeccion del Trabajo
Keep your business' Libro de Asistencia up to date, and ensure that the times entered are correct. Its the first thing the inspectors look for when they come visiting.
There are plenty of vivos around who know exactly how to play the system, so if you still end up in court despite all this, (as I have) at least you can show that you are complying with the law.

eeuunikkeiexpat:

Careful there. Maybe 80% or more but certainly not all.

You're right, maybe I should have phrased that differently: Assume they all steal , given half a chance.

It's not just Chile. Employee theft is one of the biggest business expenses in the USA.

You must do all you can to protect yourself from theft. Prevent employee access to money. Never have multiple employee access to money, so that if some goes missing, only one possible person could be to blame.

You have to have some way to control goods. Theft of goods is probably more common than theft of money.

I can remember, decades ago, listening to people in my age group discussing how they were stealing goods from their employers, and people have generally gotten a lot more dishonest and a lot more self-centered since then, so I suspect it is even more common now.

My father had a deli and he bought stolen deli meat, more because he was under threat than any basic dishonesty, but obviously, there was a heck of a lot of stolen meat being moved around and being resold.

In the past when one of my companies ran into a theft problem we became proactive, collected the evidence then sat the employee down presented our evidence and he either 1) signed our prepared letter of resignation in front of 2-3 of our managers and our lawyer or 2) the evidence was turned over to the Carabineros within the hour. This was all made very clear to the employee, he was also paid out to the end of the pay period, and we never had an employee not sign.

Our employment contact was very well defined and theft was a major clause in it, it said any theft would not be tolerated and the employee would be fired (we had employees asking permission to take packing materials and other garbage, to us useful to them, so as to not be seen as stealing it). I think a strong employment contract is important when firing an employee. We also found our staff would not turn in someone who was stealing but had no problem pointing out where and when if asked directly and formally (their affidavits form much of our evidence). We ran several companies with 80-100 employees and millions of dollars in materials and products they all had access to. Also strong honest managers make a big difference.

I find Chileans no less dishonest than any other groups I have worked with and better than many other Latin Americans I have worked with.

We've been to labor court once, dragged down there by a former maestro on bolleta who wanted to be requalified as an employee (i.e. with all sorts of benefits owed to him). Case was quickly heard and dismissed by the computer-equipped judge who was looking at evidence submitted by the lawyers over wifi. Given the US Senate has yet to discover networked computers when it conducts its hearings (I confess to watching CSpan on occasion), it all seemed pretty efficient and fair to me. Of course it's been just my own little personal experience and we don't have employees here.

That said, yes, the law is lopsided in the employee's favor, European-style. It's not employment-at-will and you'd better cover your ass to establish good cause for termination. Many employers will settle rather than go and fight an uphill battle in court. Which probably makes it even more of a self-fulling prophecy that the fight is the employee's game to lose.

2-3 of our managers and our lawyer

The point is that the law as it stands makes life very difficult for the PYMES, which is where I guess the original poster is at.
If you have Managers and a Lawyer, and probably an HR person as well,these problems are much more manageable.
In a small business with maybe a sole owner and half a dozen employees, it's literally You Vs. the state in a situation like this.

Exactly fraggle092, thanks! It needs to change to make Chile a better country. Also, thanks to all the others who posted (whether I wanted to read it or not, LOL). All the advice is great......keep it coming!