Employment Contracts: Mobility, Suspension, Termination & Dismissal

Posted on Oct 15, 2024 in Law & Jurisprudence

Functional and Geographic Mobility

Functional Mobility

The worker performs specific work activities within the company.

Geographic Mobility

For economic, technical, organizational, or production reasons, a worker may be transferred to a new workplace, potentially requiring a change of residence.

Permanent Transfer

  • The transfer is permanent.
  • The company must notify the employee at least 30 days prior. The employee can then choose to:
    • Terminate the contract and receive compensation (20 days’ wages per year worked, up to 12 months).
    • Accept the transfer. The company must cover all transfer costs.
    • Challenge the transfer in labor court if they disagree with the company’s reasons.

Temporary Displacement

  • Displacements are temporary but can last up to 12 months within a three-year period. The worker is entitled to:
    • Reimbursement of expenses.
    • A daily allowance.
    • Four days off every three months to return home (travel expenses covered by the company).

Substantial Changes to Working Conditions

When the company can demonstrate economic, technical, organizational, or production reasons, they may modify the following:

  • Working day
  • Schedules
  • Shift work regime
  • Remuneration system (wage rates)
  • Work and performance system
  • Functions, if the change exceeds the limits of functional mobility.

Suspension of the Employment Contract

This is a temporary interruption of work due to specific circumstances outlined in the Statute of Workers:

  • Mutual agreement between the parties (specified in the contract).
  • Temporary disability leave, maternity leave, pregnancy risk leave, and adoption or foster care leave.
  • Unpaid suspension for disciplinary reasons.
  • Holding elected or appointed public office.
  • Deprivation of liberty pending conviction.
  • Worker strikes and legal company closures.
  • Temporary company closure due to economic, technical, organizational, production reasons, or force majeure.

Leave

Leave is the worker’s right to be absent from work for a specific period. Unlike suspension, leave doesn’t always guarantee the same position upon return, but sometimes offers preferential re-entry rights for similar vacancies.

Types of Leave

Voluntary Leave

  • Available to employees with at least one year of service.
  • Duration: 4 months to 5 years.
  • A new leave can only be requested four years after a previous one ends.
  • No guarantee of the same job, but preferential re-entry for similar vacancies.

Forced Leave

  • For workers elected or appointed to public office or performing union duties.
  • Counts as employment tenure.
  • Guarantees the same job upon return.

Termination of the Employment Contract

An employment contract can end for the following reasons:

  • Mutual agreement.
  • Reasons stated in the contract.
  • Expiry of a fixed-term contract.
  • Worker resignation (can request termination through labor court).
  • Death, severe or total permanent disability of the worker.
  • Worker retirement.
  • Death, retirement, or incapacity of the employer.
  • Force majeure.
  • Collective dismissal due to economic, organizational, or technical reasons.
  • Dismissal for breach of contract (by either party).
  • Objective dismissal (individual dismissal for reasons unrelated to worker performance).

Objective Dismissal

  • Worker ineptitude.
  • Lack of adaptation to technical changes.
  • Proven need to eliminate jobs.
  • Absenteeism (even if justified but intermittent).
  • Insufficient budget.
  • Worker victim of gender violence.

Objective Dismissal Process

  • The employer must provide a written explanation for the dismissal.
  • Simultaneously, the employer must offer severance pay (20 days’ wages per year worked, up to 12 months).
  • The employee has 30 days’ notice and is entitled to six hours of weekly leave to seek new employment.

Employee Challenge

  • The employee has 20 working days to file a complaint after the dismissal becomes effective.
  • Justified Dismissal: The employer proves the cause, and the dismissal is final.
  • Unfair Dismissal: The cause is not proven. The employer must choose between reinstatement with back pay or dismissal with increased compensation (45 days’ wages per year worked, up to 42 months, plus back pay).

Disciplinary Dismissal

Reasons for disciplinary dismissal:

  • Repeated and unjustified absences or tardiness.
  • Insubordination or disobedience.
  • Verbal or physical offenses.
  • Consistently substandard work performance (voluntary).
  • Habitual drunkenness or drug use.

The employer has 60 days from the date of knowledge of the offense, and within six months of the offense, to initiate disciplinary dismissal.

Compensation for Dismissal

  • Objective Dismissal: 20 days’ wages per year worked (up to 12 months). If deemed unfair, compensation increases to 45 days (up to 42 months) plus back pay.
  • Disciplinary Dismissal: No compensation if justified. If deemed unfair, 45 days’ wages per year worked (up to 42 months) plus back pay.
  • Collective Dismissal: 20 days’ wages per year worked (up to 12 months). If deemed unfair, compensation increases to 45 days (up to 42 months) plus back pay. Indefinite contracts may have increased compensation (33 days up to 24 months).