Employment Contracts: Changes, Suspensions, and Termination
Item 10: Changes in Working Conditions
A) Geographical Mobility: Transfers and Displacement
1. Transfers
Transfers involve changes of residence or travel exceeding 12 months over three years. The law mandates that contracts specify business-related reasons for relocation. Transfers should never be arbitrary and must benefit the company. Collective agreements often determine the distance constituting a move, with distances under 25km generally insufficient.
a) Individual Transfer:
This applies to a single worker or less than 10% of the workforce. The employer must notify the worker and their representatives at least 30 days in advance. The worker can then:
- Accept the transfer and receive compensation for incurred costs.
- Refuse and terminate the contract, receiving 20 days’ salary per year worked (maximum 12 months).
- Accept but challenge the transfer’s legitimacy in court.
b) Collective Transfer:
This applies to over 10% of the workforce within 90 days (10 workers in companies under 100, 10% in companies between 100-300, 30 in companies over 300). A consultation phase with worker representatives precedes the transfer, followed by notification to labor authorities. Workers then have the same options as with individual transfers, plus collective action.
c) Special Features:
If one spouse is transferred, the other, working for the same company, is entitled to transfer to the same city if a vacancy exists. Victims of gender violence also have transfer preference. Employee representatives have priority to remain in their current positions.
2. Displacements
Displacements involve travel for less than 12 months over three years. Displaced employees are entitled to:
- Coverage of travel and subsistence expenses.
- Timely notification of displacement.
- Four days off at their original location for every three months of travel.
Displacements exceeding 12 months are treated as transfers. Disagreements can be addressed in labor court.
B) Substantial Changes
Employers have the right to modify working conditions (ius variandi) within reason. Substantial changes require specific protections. Justified reasons (economic, technical) are needed for changes to:
- Working hours
- Shift patterns
- Compensation
- Performance systems
- Job functions
Changes cannot be arbitrary.
1. Non-Substantial Group Modifications:
These affect individual workers or less than 10% of the workforce. Workers must receive 30 days’ notice. Affected workers can:
- Terminate the contract with 20 days’ salary per year worked (maximum 9 months).
- If changes compromise dignity or training, receive 45 days’ salary per year worked (maximum 42 months).
- Challenge the changes in court.
2. Substantial Group Modifications:
These affect over 10% of the workforce within 90 days. Negotiations with worker representatives are required, followed by the same worker rights as in non-substantial modifications.
C) Functional Mobility
a) Within the Same Group:
Functional mobility is generally free within professional groups, unless restricted by collective agreements. It must not compromise worker dignity or training. Workers can terminate the contract with 45 days’ salary per year worked (maximum 42 months).
b) Functions in Another Professional Group:
- Lower Group: Justified by unforeseen production needs, with notification to worker representatives. The worker receives the lower group’s remuneration.
- Higher Group (6+ months in 1 year or 2 years): The worker can claim promotion, request the higher position, or claim the higher salary. Disputes can be addressed in court.
Item 11: Suspension and Termination of Work Contracts
1. Suspension
Suspension exempts both employee and employer from work and remuneration obligations. The contract resumes upon resolution of the cause.
1.2 Causes:
- Mutual agreement
- Temporary disability (TD)
- Maternity/paternity leave
- Risk during pregnancy/breastfeeding
- Adoption/foster care leave
- Deprivation of liberty (pre-conviction)
- Public office
- Legal strike
- Disciplinary suspension
- Company closure
- Economic, technical, organizational, or production reasons
- Force majeure
1.3 End of Suspension and Return to Work:
The contract resumes upon the disappearance of the cause.
2. Leave of Absence
Similar to suspension, but without guaranteed return to work.
- Unpaid Leave: Workers with over one year of service can request 4-5 years of leave, renewable after four years. No job guarantee, but preferential rehiring rights.
- Family Care Leave: Up to three years for childcare (from birth) and up to two years for second-degree relative care. Job guarantee for the first year, then occupational group reservation.
- Active Status: For public office or representation, with job guarantee.
- Note: Workday reduction (1/8 to 1/2) is possible for childcare (under 8) or family care (up to 2nd degree).
3. Termination of the Employment Contract: Causes
Termination permanently ends the employer-employee relationship. Causes include:
- Mutual agreement
- Condition precedent
- End of agreed term
- Resignation
- Abandonment
- Justified termination by employee
- Disciplinary dismissal
- Dismissal for objective reasons
- Redundancy
- Death of worker/employer
- Retirement/disability of worker/employer
- Company dissolution
Further details on each cause are provided in the following sections.
3.1 Termination by Mutual Agreement
- Mutual Agreement: Both parties can terminate at any time without cause. A settlement document outlines payments (vacation, extras). A worker representative should be present if available.
- Condition Precedent: Termination occurs upon fulfillment of a condition specified in the contract (e.g., obtaining a qualification). Unreasonable conditions are invalid.
- End of Term: For fixed-term contracts. Requires notification (15 days for contracts over one year) for non-renewal. Compensation is determined by collective bargaining or, failing that, 8 days’ salary per year of service.
3.2 Termination by Employee
- Resignation: Workers can resign freely with notice (determined by collective agreement). No compensation is due without notice.
- Abandonment: Leaving without notice or justification. The worker is liable for damages.
- Justified Termination: Allowed for substantial changes to working conditions, unpaid wages, or serious breaches of contract by the employer.
3.3 Termination by Employer
- Disciplinary Dismissal: For serious misconduct (e.g., disobedience, abuse, breach of trust, negligence, substance abuse, harassment). No compensation is due.
- Dismissal for Objective Reasons: Based on circumstances affecting both parties (e.g., worker inability, mismatch with technical changes, repeated absences, redundancy). Compensation is 20 days’ salary per year worked (maximum 12 months).
- Collective Redundancy (ERE): For economic, technical, organizational, or production reasons affecting a certain percentage of the workforce. Requires consultation with worker representatives and authorization from labor authorities. Compensation is 20 days’ salary per year worked (maximum 12 months).
4. Dismissal Procedures
- Disciplinary Dismissal: Written notification (dismissal letter) stating reasons and effective date.
- Objective Dismissal: Written notification with 30 days’ notice and compensation.
- Collective Redundancy: Consultation period with worker representatives, notification to labor authorities, and compensation.
5. Challenging Dismissal
Dismissal can be challenged through reconciliation (mandatory) and court proceedings. A judge can classify dismissal as:
- Fair: Justified and legally sound.
- Unfair: Lack of justification or procedural errors. Compensation is 45 days’ salary per year worked (maximum 42 months), plus unpaid wages.
- Null: Discriminatory, violates fundamental rights, or affects protected workers (e.g., pregnant, on leave). Reinstatement is mandatory.
6. Other Causes of Termination
- Death/Retirement/Disability of Employer: Contract terminates unless heirs continue the business. One month’s salary compensation is due.
- Death/Retirement/Disability of Worker: Contract terminates automatically.
- Company Dissolution: Contract terminates unless another company continues the activity (subrogation). Collective redundancy procedures apply.