Employee Rights: Contract Modifications, Suspension, and Termination

Posted on Dec 23, 2024 in Law & Jurisprudence

Contract Modification

Functional Mobility

It occurs when workers are assigned to functions other than those contracted.

Functional mobility options:

  1. Horizontal: It is done within the same group or equivalent.
  2. Ascending: The worker moves to higher functions within their category. If the change exceeds 6 months in a year or 8 months in 2 years, the worker is entitled to claim the salary of the higher grade.
  3. Descending: The employee is assigned to lower-level jobs. This can only occur due to urgent or unpredictable technical or organizational reasons and may not reduce wages. It lasts only as long as required.
  4. Special: Any other functional mobility different from the previous ones.

Geographic Mobility

It occurs when, by changing the workplace, the worker is forced to change their habitual residence. If temporary, it is called displacement, and if permanent, it is called transfer. Both must be justified on technical, economic, organizational, or production grounds.

Collective Moving occurs when it affects the entire workforce, if it occupies more than 5 employees, or within 90 days affects:

  • 10 workers in a company with fewer than 100 employees
  • 10% or more of the workforce in companies with between 100 and 299 workers.
  • At least 30 workers in companies with 300 or more.

Temporary Displacement

It occurs when the worker moves to another workplace for a period of up to 12 months in 3 years.

When the displacement is greater than 3 months, the employee must be informed 5 working days in advance.

The displaced worker is entitled to:

  1. Enjoy paid leave of at least 4 days at their home for every 3 months of displacement.
  2. Receive payment for travel and subsistence expenses.

The employee can challenge the decision in court if they disagree with the company’s reasons for the move.

Permanent Transfer

It occurs when the worker is forced to change their habitual residence due to:

  1. A change to another workplace indefinitely.
  2. The displacement exceeding 12 months in 3 years.

The employee must be notified at least 30 days in advance. The company pays the employee relocation expenses for themselves and their families. If the employee refuses, they are entitled to an allowance of 20 days per year worked, with a maximum of 12 months, or they can accept the move and challenge it in court.

Substantial Changes in Working Conditions

The employer may agree to substantial changes in working conditions when there are proven technical, economic, organizational, or production-related causes. They must advise in writing at least 30 days in advance.

Substantive changes are those affecting:

  • The workday (e.g., expansion of working hours)
  • The schedule (e.g., when the worker moves from a continuous schedule to a split schedule)
  • The shift work system (e.g., a fixed morning shift change to morning and evening shifts)
  • The remuneration system (e.g., changes in the form of remuneration for night work)
  • The system of work and performance (e.g., the employer amends the number of work crew without consultation)
  • Extraordinary functional mobility (e.g., downward mobility, such as putting a department head to perform parking attendant functions)

If the modification affects working time, the law gives workers the right to terminate the contract with compensation of 20 days per year worked, with a maximum of 9 months.

If the modification impairs the training or dignity of workers, they may resort to the courts to terminate the contract, entitled to compensation of 45 days per year worked, with a maximum of 42 months.

Collective changes occur when working conditions that are changed are contained in collective agreements.

Suspension of Contract

The contract may be suspended by mutual agreement or for legal reasons. Therefore, the worker is exempt from working, and the employer is exempt from remunerating the work.

The suspension of the contract does not terminate it; it will resume when the cause that led to the suspension disappears.

Grounds for Suspension

The contract may be suspended due to:

  • Mutual agreement between the parties
  • Appropriate causes included in the contract
  • Temporary worker incapacity: When the worker is absent due to illness or accident and is temporarily incapacitated. The reduction can be extended up to 12 months and may be extended for another 6 months.
  • Worker custody
  • Disciplinary measure
  • Economic, technical, organizational, or temporal production force majeure: During the suspension, as long as authorized by the labor authorities, workers are not entitled to receive wages or compensation but may have access to unemployment benefits.
  • Legal company lockout: The employee is not entitled to wages unless the lockout is subsequently declared illegal.
  • Exercise of the right to strike: During the strike, contracts and salaries are suspended.
  • Being a victim of gender-based violence: The worker may leave their job temporarily for a maximum of 6 months and shall be entitled to unemployment benefits.
  • Suspension related to maternity and adoption:

a. Maternity: Duration of 16 weeks without interruption, extendable in case of multiple births to 2 weeks for each child, from the second. The time shall be chosen by the employee, provided that at least 6 weeks are immediately after delivery and are enjoyed by the mother. The rest can be taken by the other parent.

b. Adoption or foster care: The suspension will be 16 weeks, extendable to 2 weeks for each child in case of multiple adoptions. If both parents work, they can agree to share the time.

c. Risk during pregnancy or breastfeeding: If there is a risk during pregnancy for the mother or fetus, once an attempt has been made to change working conditions to reduce the risk, the contract shall be suspended until delivery or until the cessation of the risk.

d. Paternity: 13 uninterrupted days in the event of birth, adoption, or fostering, expandable to 2 days after the second child.

  • Exceedance: A temporary interruption of the employment relationship during which work is not performed or paid. It is made at the request of the worker and can be:

a. Compulsory: When the employee is elected to public office temporarily or for trade union duties at or above the provincial level. The employee retains their position and seniority and must apply to return within one month after the cessation of the cause that caused the exceedance.

b. Voluntary: To request it requires at least one year of seniority, and more than 4 years must have elapsed since a previous unpaid leave. Duration: 4 months to 5 years. It does not entitle the worker to return to the same job, but they have preference for any vacancies, and seniority is not counted.

c. For childcare: Workers have the right to a period of leave not exceeding 3 years from the date of birth, adoption, or fostering. They are entitled to reserve their position for 1 year, and afterward, they are entitled to a similar position. The worker maintains seniority and can participate in training.

d. For the care of a family member: Workers are entitled to a leave not exceeding 2 years to care for a family member up to the 2nd grade. Terms are the same as for childcare.

Termination of Contract

Causes of termination:

  • Mutual agreement
  • Causes included in the contract
  • Expiry of the agreed time or completion of work
  • Resignation or abandonment by the worker
  • The worker’s wish due to the employer’s breach
  • Death, serious disability, or permanent incapacity of the worker
  • Death, retirement, or incapacity of the employer or termination or extinction of the legal person of the contractor (entitled to 1 month’s salary for compensation)
  • Force majeure that precludes definitive work
  • Collective dismissal for economic, technical, organizational, or production reasons
  • Disciplinary dismissal
  • Dismissal for objective reasons
  • Decision of the worker who is forced to leave due to being a victim of gender-based violence

Termination by the Worker’s Will

The worker may terminate the employment relationship:

  • Resignation: Upon notice, no cause needs to be alleged. The worker must notify within the time established in the collective agreement or 15 days in advance.
  • Abandonment: If the worker fails to attend work without warning. The employer can claim damages.
  • Objective causes: Legally, the worker may terminate the contract and shall receive compensation in the event of removal or alteration of the schedule.
  • Serious breach by the employer: The employee must request the termination of the contract before the court but must keep working. Main serious breaches:

a. Modification of working conditions that cause injury to the promotion, training, or dignity of the worker

b. Lack of payment or continued delays in the payment of wages

If the court finds that there was a serious failure by the employer, the worker has the right to terminate the contract and receive compensation of 45 days per year worked, up to 42 monthly payments.

Termination at the Employer’s Initiative

This can be done due to employee defaults, force majeure, or objective reasons.

Disciplinary Dismissal: Due to a material breach by the employee, they are not eligible for compensation, but the company is obliged to settle outstanding payments. Causes:

  • Lack of attendance or punctuality.
  • Indiscipline or disobedience.
  • Verbal or physical offenses to employers, people working in the company, or relatives living with them.
  • Disregard of good faith and breach of trust in job performance.
  • Degraded performance.
  • Intoxication or drug abuse.
  • Harassment by employers or persons within the company.

Dismissal for misconduct shall be notified in writing to the employee within 60 days from the date of the infraction and, in any event, within 6 months.

Dismissal for Objective Reasons: In this case, the dismissal occurs because there are objective reasons that make the maintenance of the employment relationship detrimental to the employer. Causes:

  • Ineptitude of the worker.
  • Lack of worker adjustment to technical changes in their position.
  • Absenteeism.
  • Elimination of jobs.

The company must provide written notice of objective redundancy with 30 days’ notice and make available to the employee an indemnity of 20 days’ salary per year worked, with a maximum of 12 months.

Settlement

The settlement is the document in which the employer settles all outstanding obligations at the time of termination of the employment relationship with the employee.

The settlement includes:

  • The share of wages for the month in which the contract is terminated.
  • The settlement of bonuses.
  • The liquidation of leave not taken.

Appeal of Dismissal

When the worker who receives notice of dismissal does not agree with the causes alleged by the employer, they have 20 working days to contest the dismissal. They should try to reach an early agreement with the company through the Mediation, Arbitration, and Conciliation Service (SMAC). If conciliation does not succeed, they must go before the Social Court.

Conciliation

Once submitted, the conciliation suspends the 20-day period to submit an application to the court for a maximum of 15 days. Conciliation can conclude in two ways:

  • With agreement: If there is an agreement, the worker will be reinstated or compensated, in any case, receiving any wages owed by the company.
  • Without agreement: The impossibility of reaching an agreement leaves the courts as the only alternative.

The Courts

If the conciliation ends without agreement, the employee must submit an application before the Social Court, accompanied by the conciliation report.

The Social Court will declare the dismissal appropriate, inappropriate, or null:

  • Appropriate: The employer has complied with the legal formalities to dismiss and has proved the alleged cause. The worker has no compensation.
  • Unfair: The cause alleged by the employer has not been proven, or there has been a failure to comply with the requirements. The employer must reinstate the worker or terminate the contract with compensation of 45 days per year worked, up to a maximum of 42 months.
  • Null: The dismissal is based on discriminatory grounds.