What Is Constructive Dismissal, and When Can an Employee Claim It?
Constructive dismissal — known in Argentina as "despido indirecto" or "autodespido" — occurs when an employee terminates the employment relationship because the employer has committed a serious breach of its obligations (unpaid wages, undeclared work, harassment) that makes it impossible to continue the relationship. A validly declared constructive dismissal carries the same severance entitlements as a dismissal without cause initiated by the employer.
1. Formal Requirements for a Valid Claim (Article 242 LCT)
For a constructive dismissal to be legally valid — and not treated as job abandonment — three conditions must be met under the LCT (Ley de Contrato de Trabajo, Argentina's Employment Contract Law):
- Severity of the Breach: The employer's failure must be serious enough to destroy the trust underlying the contract (for example: unpaid wages, refusal to register the employment relationship, or physical or verbal abuse).
- Prior Notice and a Reasonable Deadline: The employee must send a free labor telegram, granting the employer no less than 48 business hours to remedy the breach.
- Express Warning: The notice must clearly state that, if the employer remains silent or refuses to comply, the employee will consider themselves dismissed through the employer's exclusive fault.
2. Financial Consequences of a Justified Constructive Dismissal
Once a constructive dismissal is validly declared for cause, the employee is entitled to:
- Seniority severance pay (Art. 245 LCT).
- Pay in lieu of notice (Art. 232 LCT) and integration of the dismissal month (Art. 233 LCT).
- Statutory fines under Laws 24.013 and 25.323, and Article 80 LCT, where applicable.
- Access to the ANSES unemployment fund, certified through SECLO (Servicio de Conciliación Laboral Obligatoria — the mandatory pre-trial labor conciliation service) or a court judgment.
Constructive Dismissal Is Not the Same as Dismissal Without Cause
In dismissal without cause, the employer ends the relationship, and severance is owed regardless of any justification. In constructive dismissal, it is the employee who ends the relationship — and must prove the employer's breach was serious enough to justify it. If a court later finds the breach insufficient, the termination can be reclassified as a resignation, and the employee risks losing the severance claim entirely. That is why the formal notice requirements above are critical.