Características y requisitos del despido sin justa causa
Mediante sentencia SL1521-2023, la Sala de Casación Laboral de la Corte Suprema de Justicia ha desarrollado las características y requisitos que debe cumplir el despido con justa causa en Colombia. Se trata de una figura contemplada en el marco legal laboral que permite al empleador terminar el contrato de trabajo de un empleado debido a una conducta grave o incumplimiento de sus obligaciones laborales.
A continuación, se describen las características y requisitos principales del despido con justa causa según el marco legal laboral:
Gravedad de la conducta: El despido con justa causa se justifica cuando el empleado comete una falta grave que afecta la relación laboral. Esto puede incluir actos de indisciplina, desobediencia, violencia, abuso de confianza, robo, fraude, negligencia, entre otros comportamientos que se consideren suficientemente serios.
Incumplimiento de obligaciones laborales: El despido con justa causa también puede ser motivado por el incumplimiento reiterado de las obligaciones laborales por parte del empleado. Esto puede involucrar la falta de asistencia o puntualidad, bajo rendimiento, negligencia en el cumplimiento de tareas o cualquier otra violación sustancial de las obligaciones laborales.
Para que se pueda proceder al despido, se debe previamente cumplir el proceso disciplinario que incluye la notificación de los cargos, el ejercicio del derecho de defensa del trabajador, traslado de pruebas y contradicción de la prueba. No obstante, la Sala ha aclarado que la citación a descargos no es la única forma de garantizar el derecho de defensa del trabajador. En efecto, cabe la posibilidad de que el trabajador “de cualquier forma” pueda exponer su caso al empleador con el fin de asegurar que la decisión de terminación del contrato vaya precedida de un diálogo. En conclusión, no es de la esencia cumplir con una forma o proceso reglado específico pues no se trata de una sanción disciplinaria sino del fenecimiento del vínculo laboral.
October newsletter
The Ministry of Labor issues Circular 075 of 2025 to prevent, identify, and address situations of workplace harassment, sexual harassment, and discrimination against transgender people, non-binary people, and people with non-hegemonic gender identities.
The Ministry of Labor urges institutions and companies to take urgent and appropriate measures to prevent, address, raise awareness, and guide workers on workplace harassment, sexual harassment, and the prevention of violence and discrimination against people who identify with non-hegemonic sexual orientations and gender identities, following these instructions:
- Use the name and pronoun with which people identify, without requiring prior modification of their identity document, on ID cards, internal and external communications, correspondence, contracts, resolutions, minutes, employment certificates, and all types of official documents in general. Failure to do so constitutes discriminatory behavior based on gender identity and may be considered workplace harassment.
- Trans women cannot be required to present a military card in order to be hired or remain in their job. In the case of trans men, the requirement to present a military card cannot be an obstacle to entering employment.
- Transgender people have the right to wear the uniform and clothing they consider appropriate for the gender identity with which they identify.
- In cases where bathrooms are separated for men and women, transgender people have the right to use the bathroom that corresponds to the gender with which they identify.
- It is considered discriminatory to make trans people, non-binary people, and people of non-hegemonic gender invisible or to hide them, through behaviors such as not including them in wellness activities, relegating them to confined spaces, not inviting them to work meetings, or removing them from the duties for which they were hired without valid justification.
- It is reiterated that, under Law 1010 of 2006, making jokes or wisecracks about the gender identity of transgender, non-binary, and non-hegemonic gender individuals is considered workplace harassment.
- Establish inclusive and non-discriminatory selection processes, seeking to overcome gender stereotypes and prejudices about this population. To this end, it is recommended to: train the personnel involved in the process; evaluating processes to identify possible gender biases; reviewing job offers to ensure that job descriptions are not discriminatory, using inclusive language; and publishing vacancies in the Public Employment Service through the Provider Network.
Actions that companies must take for implementation:
- Train the members of the Workplace Coexistence Committees.
- Include a differential approach that recognizes transgender, non-binary, and non-hegemonic gender individuals in the policies, protocols, and care pathways established against sexual harassment.
- Incorporate awareness programs on gender diversity.
- Implement mechanisms for reporting acts of discrimination, allowing for effective care for victims in complaint procedures and action by the Workplace Coexistence Committee.
Law 2540 of 2025 introduces arbitration for enforcement proceedings, with the aim of helping to relieve congestion in the judicial system.
Object: With the enactment of this law, executive proceedings may now be submitted to arbitration, provided that there is an arbitration agreement. The same law expressly provides that the executive arbitration process shall be institutional and shall apply to any type of enforcement, and in no case may ad hoc arbitration be used. The arbitration award shall be rendered in accordance with the law. Consequently, any agreement referring to an award in equity or technical award shall be deemed not to have been written.
Similarly, the enforcement of domestic arbitral awards may be submitted to the same arbitral tribunal, except for those rendered in international arbitrations based in Colombia, while the enforcement of arbitral awards against public entities or individuals exercising administrative functions may not be brought before the same arbitrators who rendered them.
Characteristics of the arbitration agreement: It is a legal transaction whereby the parties undertake to submit to arbitration the enforcement of enforceable titles and disputes arising from the underlying transaction of the title affected by the agreement. This may consist of a commitment or an arbitration clause and may not form part of a security that is invoked as an enforceable title, in which case it must necessarily be recorded in a commitment set out in a document attached to or separate from it.
Procedure: Arbitration centers may incorporate into their regulations the rules of procedure for executive arbitration and for the implementation of preliminary precautionary measures, respecting the minimum guarantees of due process.
An extraordinary appeal for annulment may be filed against the executive arbitration award.
Term: If the arbitration agreement does not establish the duration of the proceedings, they shall last up to twelve (12) months, counted from the issuance of the order setting the dispute, the decree of evidence, and the approval of the settlement of the claim.
Fees: The Ministry of Justice and Law shall regulate the fees of the executing arbitrators, those of preliminary precautionary measures, the arbitrators executing the awards, and the administrative expenses corresponding to the center.
Consumer protection measures: This law not only regulates the executive arbitration process, but also introduces the following measures to protect consumer rights:
- In contracts entered into with consumers that stipulate an arbitration agreement or in relation to which arbitration is agreed upon, the consumer must be provided with clear, truthful, sufficient, timely, verifiable, understandable, accurate, and appropriate information on the effects and scope of the arbitration agreement and the executive arbitration process.
- In the event of non-compliance with this obligation by the entity, the consumer shall not be bound by the arbitration agreement, unless he or she decides to resort to arbitration or, having been summoned to an arbitral tribunal, does not invoke the ineffectiveness of the agreement. In addition, financial institutions are liable to sanctions by Financial Superintendency in the event of non-compliance.
- Likewise, the consumer’s acceptance of the arbitration agreement must be specified in the credit application independently and may not be a requirement or condition for the granting or disbursement of the credit, nor may it subject decisions on credit conditions to acceptance or non-acceptance of the arbitration agreement.
- Consequently, the mere acceptance of the terms and conditions in consumer relations shall not be considered an arbitration agreement. This must be express, clear, and reflect the free and informed will of the consumer.
- In the context of the arbitration process, the inalienable nature of consumer rights must be observed, which means that no clause of the arbitration agreement or provision of this procedure may be interpreted to the detriment of those rights.
Right of withdrawal from the arbitration agreement: In contracts entered into with consumers of financial services through adhesion contracts or general conditions that include an arbitration agreement, the consumer’s right of withdrawal from said agreement shall be understood to be incorporated, which must be exercised within 60 days following the disbursement of the credit or the moment when the obligations in favor of the consumer began to be fulfilled, unless this right is expressly included in the arbitration agreement, in which case there shall be no time limit for its exercise and it may be exercised until the expiration of the term for raising objections on the merits in the respective arbitration proceedings.
General Prohibitions:
- The procedures regulated in this law, as they involve enforcement with precautionary measures, shall be confidential.
- Entities supervised by the Financial Superintendency, electronic payment associations and networks, and legal or natural persons whose main activity is to grant money loans may not participate in any capacity in the creation, development, or operation of for-profit or non-profit legal entities that create arbitration centers to administer the executive arbitration process.
Social enforcement arbitration. Arbitration centers shall promote social enforcement arbitration and facilitate access to the free provision of this type of arbitration service for small claims, without prejudice to each center’s ability to provide the service for larger amounts.
Validity. This law shall come into force six (6) months after its enactment, i.e., on February 26, 2026.
Digital Expression and Judicial Sovereignty: Colombian Constitutional Standards in the Esperanza Gómez Case
By Daniel Peña Valenzuela, Partner at Peña Mancero Abogados
1. Introduction: A Constitutional Milestone in the Digital Age
On September 12, 2025, the Colombian Constitutional Court issued a landmark ruling that redefined the boundaries of digital governance and reaffirmed the enforceability of constitutional rights in cyberspace. The case, brought by actress and digital influencer Esperanza Gómez, challenged the arbitrary closure of her Instagram account by Meta Platforms Inc. In reinstating her digital presence, the Court not only protected her individual rights but also established a constitutional framework for platform accountability, judicial oversight, and the defense of freedom of expression in stigmatized industries.
2. Background: Global Norms vs. National Guarantees
Gómez’s tutela action exposed the growing tension between global content moderation policies and national constitutional protections. Her legal team argued that Meta’s decision violated her rights to freedom of expression, equality, due process, and work. The Court agreed, concluding that the account closure was discriminatory and procedurally deficient.
This ruling builds on a series of precedents that have shaped the Court’s doctrine on digital rights. In Judgment T-155 of 2019, the Court addressed the balance between freedom of expression and the right to honor in social media contexts, emphasizing that digital speech enjoys constitutional protection and must be restricted only under strict proportionality. In T-124 of 2021, the Court examined religious expression by public officials on digital platforms, reaffirming the principle of state secularism and the need to ensure neutrality in online discourse. More recently, T-061 of 2024 tackled the issue of transphobic content moderation, holding that platforms must avoid discriminatory enforcement and ensure that vulnerable communities are not disproportionately silenced.
Together, these rulings reflect an evolving doctrine: digital platforms, while privately owned, function as quasi-public forums and must respect constitutional norms.
3. Doctrinal Contributions: Defining the Limits of Platform Power
Justice Natalia Ángel Cabo’s majority opinion introduced several foundational principles that now guide the constitutional regulation of digital spaces:
First, the Court affirmed that platforms may exercise content moderation, but this power must be exercised within constitutional boundaries. The mere invocation of “community standards” does not justify the suppression of constitutionally protected speech, especially when enforcement is arbitrary or discriminatory.
Second, the Court reaffirmed the jurisdiction of Colombian judges over digital rights violations, even when committed by foreign corporations. This principle of judicial sovereignty ensures that constitutional protections are not rendered ineffective by the transnational nature of digital platforms.
Third, the Court declared that discriminatory enforcement of moderation policies—particularly against stigmatized professions such as adult entertainment—is unconstitutional. The decision emphasized that freedom of expression must be protected regardless of the speaker’s identity or occupation.
Finally, the Court extended the principle of due process to digital environments. Users must be afforded clear procedures for notification, appeal, and judicial review when their accounts or content are restricted.
4. Structural Orders: Institutional Accountability and Reform
Beyond individual redress, the Court issued structural orders aimed at reforming Meta’s operations in Colombia. These include:
- Translating all platform policies and guidelines into Spanish to ensure accessibility and transparency.
- Establishing a judicial channel for receiving and complying with court orders.
- Revising moderation policies to eliminate discriminatory language and practices.
- Creating transparent appeal mechanisms subject to judicial oversight.
- Publishing the ruling in Meta’s Transparency Center to ensure public awareness.
- Requesting an advisory opinion from Meta’s Oversight Board to evaluate the broader implications of the case.
These measures reflect a shift toward proactive judicial engagement with digital governance, positioning constitutional courts as key actors in regulating platform behavior and defending fundamental rights.
5. Broader Implications: Constitutional Law in a Transnational Digital Ecosystem
The Gómez ruling raises critical questions for legal systems worldwide. How can national courts prevent global community standards from becoming tools of censorship? What safeguards are needed to protect users in stigmatized industries from arbitrary moderation? How should constitutional law evolve to address the transnational nature of digital platforms?
The Court’s response is clear: by asserting judicial sovereignty, demanding transparency, and defending substantive equality, constitutional courts can shape a more just and accountable digital ecosystem. The decision challenges the notion that digital platforms operate in a legal vacuum and affirms that constitutional protections extend into the digital realm.
6. Conclusion: Toward a Jurisprudence of Digital Rights
The Constitutional Court’s decision in favor of Esperanza Gómez marks a turning point in Latin American digital rights jurisprudence. It affirms that constitutional protections do not end at the edge of the internet and that platform governance must be subject to public law principles. As digital spaces continue to evolve, this ruling provides a foundational model for defending rights, regulating moderation, and ensuring that online expression remains free, fair, and constitutionally protected.
Newsletter february 2025
Superior Tribunal of Medellín – Civil Chamber – Judgment on Interruption of the Statute of Limitations for Contractual Liability Actions
By means of a judgment dated July 16, 2024, the Civil Chamber of the Superior Tribunal of Medellín ruled that the statute of limitations for an action derived from a transportation contract is two (2) years and may be suspended by the filing of a request for extrajudicial conciliation, thereby extending the period until its conclusion.
The plaintiff sought to hold the defendants contractually, extra-contractually, and jointly liable for the damages suffered as a passenger in a traffic accident involving the vehicle. In response, the defendants raised the defense of extinctive prescription, arguing that the lawsuit was filed more than two (2) years after the transportation obligation should have concluded (August 17, 2016).
Article 993 of the Commercial Code provides that “Direct or indirect actions arising from a transportation contract are subject to a statute of limitations of two years. The limitation period shall begin to run from the day on which the transportation obligation has concluded or should have concluded. This term cannot be modified by the parties.”
The plaintiff contended that the filing of the request for a conciliation hearing, considering the suspension period agreed upon by the parties, effectively interrupted the statute of limitations set forth in Article 993 of the Commercial Code.
The judge concluded that, although Article 993 of the Commercial Code establishes a two (2) year limitation period, which would have run from August 17, 2016, to August 17, 2018, the plaintiff’s request for a conciliation hearing on August 17, 2018, in conjunction with Article 21 of Law 640 of 2001, led to the suspension of the statute of limitations on the last day available to initiate the action. Consequently, an additional three (3) months, corresponding to the conciliation hearing period, must be added.
Furthermore, the judge explained that the suspension of the limitation period includes any extensions to the conciliation hearing agreed upon by both parties, as (i) they were mutually agreed upon, and (ii) the request was filed before the expiration of the initial three-month period within which the hearing should have taken place, extending until November 17, 2018. Therefore, the judge did not uphold the defense of extinctive prescription.
Decree 34 of 2025 – Amendment to Decree 2555 of 2010 Regarding Crowdfunding Activities
In line with productive transformation strategies, it is essential to strengthen access to financing, particularly to facilitate the growth of micro, small, and medium-sized enterprises (MSMEs), promote the adoption of advanced technologies, diversify financing alternatives for working capital, strengthen the integration of production chains, and develop workforce capabilities.
Among alternative financing mechanisms, crowdfunding platforms stand out for their ability to finance productive projects. Accordingly, it was deemed appropriate to modify their regulatory framework to expand access to financing across various economic sectors.
Key modifications include:
- The inclusion of individuals with productive projects as eligible crowdfunding recipients.
- Authorization for entities engaged in crowdfunding to develop new services that facilitate compliance with formal requirements by potential recipients.
- Strengthening information mechanisms for contributors.
- Allowing collective investment vehicles to participate in crowdfunding activities.
Key provisions of the Decree include:
- Individuals may receive crowdfunding for their productive projects through a newly created specific modality: “Crowdfunding through debt-representative securities issued by individuals.”
- As an investor protection measure, a maximum amount of 14,245.27 Basic Value Units (UVB), equivalent to COP 164,561,359.04, is set for this modality. Additionally, recipients who obtain financing under this modality may only have one funded project at a time.
- Crowdfunding entities may offer new services, including: (i) Collection and advertising services; (ii) Administration of transaction record-keeping systems for crowdfunding securities; (iii) Technical support services to potential recipients in structuring productive projects, among others.
- Crowdfunding entities must adopt a classification procedure for productive projects based on an objective analysis of the information provided by the recipients. Objective variables such as income, assets, and credit history must be available on a publicly accessible section of the crowdfunding entity’s website.
- Autonomous trusts, collective investment funds, and private equity funds may participate as contributors and recipients in crowdfunding projects.
Resolution No. 000004 of 2025 – DIAN – Prescription of Form 115 for Income Tax and Supplementary Returns for Taxpayers with Significant Economic Presence (PES) in Colombia
Pursuant to Article 20-3 of the Tax Statute, non-resident individuals or entities without a domicile in Colombia but with significant economic presence (PES) in the country are subject to income tax and supplementary obligations on income derived from the sale of goods and/or the provision of services to customers and/or users located in Colombian territory.
Those meeting the criteria set forth in this article must choose between: (i) Filing and paying income tax and supplementary obligations through the prescribed form, or(ii) Paying the tax through withholding at the source under the income tax and supplementary obligations regime for significant economic presence (PES) in Colombia.
Accordingly, this resolution prescribes the form for taxpayers opting to file an income tax return. These taxpayers must register in the Single Tax Registry (RUT) under responsibility code 65. The return must be filed through electronic services using an Electronic Signature (FE) authorized by the Special Administrative Unit of the National Tax and Customs Directorate (DIAN).
Superior Tribunal of Bogotá – Civil Decision Chamber – Judgment on Financial Habeas Data
The plaintiff sought a declaration of the existence of a basic public switched telephone service (TPBC) contract entered into with the defendant, which was in force from March 14, 2007, until April 27, 2009. The plaintiff alleged that the defendant company abused its dominant position by imposing charges exceeding the agreed fixed rate and reporting her as a delinquent debtor to credit bureaus Datacrédito and Cifin from April 2008 to May 8, 2009. Consequently, the plaintiff sought damages for both pecuniary and non-pecuniary harm.
The judge first determined that, although the plaintiff invoked the regime of extra-contractual liability, based on the facts of the case, the rules of contractual liability were applicable. The Supreme Court of Justice, Civil Cassation Chamber (SC-3653-2019), has clarified that liability in financial habeas data cases arises from the collection, processing, and dissemination of debtor information within the contractual relationship—in this case, a telecommunications service contract. Specifically, the claim was based on the improper use of the debtor’s authorization granted to the company, requiring truthful, accurate, and diligent reporting to credit bureaus. The erroneous reports were attributable to the defendant’s billing mistakes, rather than the plaintiff’s non-compliance with obligations.
In accordance with ruling SC10297 of 2014 from the Supreme Court of Justice, Civil Cassation Chamber, the judge recognized damage to María Judith Castillo Hernández’s reputation as an independent and distinct harm, acknowledged by case law since that year. Since this type of damage was not foreseeable when the plaintiff filed the claim (October 3, 2011), the court ruled that the claim could be redirected to specifically address this reputational harm. The court awarded damages of COP 15,000,000 based on judicial discretion (arbitrium judicis).
Labor Reform Approved in Second Debate in the House of Representatives
The House of Representatives approved the labor reform bill presented by the National Government with 93 votes in favor and 13 against. The approved bill contains 81 articles, including provisions for increasing remuneration on mandatory rest days from 75% to 100%, to be phased in by 2027; formalizing employment for community mothers; establishing employment contracts for SENA students; and providing paid leave for medical appointments, school commitments, union commissions, or domestic emergencies, and extending paternity leave to up to 4 weeks.
Articles removed include parental leave for same sex adopting couples, increased compensation for dismissal without just cause, and the agricultural contract.
Eight articles were added addressing formalization and employment for cargo and passenger transportation workers, programs for first and last employment, promotion of sustainable work, flexible work environments, among others.
The bill will now proceed to the Seventh Senate Committee for the final two debates.
Resolution No. 532 of 2024 UGPP: Establishing a Cost Assumption Scheme for Self-employed Workers and Those Who Enter Contracts
Recently, the Special Administrative Unit of Pension Management and Social Security Contributions (“UGPP” by its initials in Spanish) issued Resolution 532 of 2024, establishing a cost assumption scheme for self-employed workers and those who enter contracts other than personal service provision contracts, involving subcontracting and/or the purchase of supplies or expenses, based on the economic activities listed in the International Standard Industrial Classification (CIIU). This scheme also applies to cases where the economic activity is public motor freight transport by road, as a method to establish the base contribution income (IBC).
To apply the presumed cost coefficient, the obligated party must refer to the section of economic activities generating their monthly gross income during the period they received it and apply the corresponding cost percentage.
If the income comes from multiple economic activities, the corresponding cost percentage for each activity must be applied.
Specifically, for the public motor freight transport sector by road, a general cost presumption scheme was defined for self-employed workers and for employers who have verified social security contributions for the drivers they have employed. They can deduct the cost percentage established in the resolution, based on the range of gross income and the number of drivers.
As an exception, a different cost percentage can be set, provided supporting documents are available and requirements established in Article 107 of the Tax Code are met without exceeding the values included in the income tax return.
This resolution will apply from November 1, 2024.
Ministry of Labor Proposes Regulations for Reporting Major Incidents or Accidents in Classified Facilities
The Ministry of Labor has published a draft resolution to regulate procedures for reporting major incidents and accidents in classified facilities, aligning with international industrial safety standards to promote a safer and more responsible work environment.
The draft specifies that the person responsible for the facility must report any major incident or accident within two hours of occurrence, using the Ministry’s designated digital tool.
The resolution also defines criteria for classifying an event as a major incident, including severe injuries, fatalities, property damage, and significant chemical containment losses.
The responsible party must expand the report as the emergency response concludes and calculate annual process safety metrics, reporting them through the same digital tool.
New rules on paternity leave introduced in Colombia
Author: Daniel Salazar López
The Colombian Congress has passed Act 2141 (August 10, 2021) whereby a further protection has been granted to parents. Act 2141 incorporates several new provisions on labor matters and, in particular, on maternity and paternity privileges. The following are the most important aspects of the new law:
- Maternity leave was extended from three (3) months to eighteen (18) weeks after childbirth.
- Unless an authorization is obtained from the Labor Inspector, or the Municipal Mayor in the corresponding case, the dismissal of a worker, whose spouse, partner or permanent partner is pregnant or within eighteen (18) weeks after childbirth and is not formally employed, is prohibited. If dismissal occurs, the dismissed employee shall be entitled to the additional payment of an indemnity equivalent to sixty (60) days of salary.
- In addition, the indemnities and benefits that correspond by virtue of the employment contract shall be recognized.
- Paternity leave is not extended to the worker when his/her spouse, partner or permanent partner is in stable employment.
- Maternity leave is also extended to the parents in the same proportion during the 18 weeks following childbirth.
- The worker must notify the employer, verbally or in writing, of the pregnancy status of his/her spouse, partner or permanent partner and declare under oath that he/she does not have a stable job or that he/she is not a beneficiary of the Social Security Health System. Within the notification, the worker must present the necessary examinations and for this purpose she will have a term of up to one (1) month to prove the pregnancy status.
This new legislation is intended to protect the constitutional right to equality between men and women in the work environment and in harmony with the family environment.
Legal issues of M&A in the fintech sector
Data Protection & Privacy
