Essential Elements of Employment Contracts: A Comprehensive Overview
1. Essential Elements of the Employment Contract
An employment contract requires the consent of both parties: the worker and the employer. As a consensual contract, it is perfected by mere agreement of wills.
1.1 Consent
Consent is essential. Without agreement, there is no contract. Several factors affect consent:
- Capacity to Act: Parties must have the legal capacity to enter a contract. If not, the contract is void. However, contracts with emancipated minors are generally valid but can be challenged.
- Vices of Choice (Art. 1265 CC): These affect the formation of consent and can render a contract voidable.
- Mistake: False knowledge of reality, which must be essential and excusable.
- Violence: When a person is physically forced to sign a contract.
- Bullying: Threats that create a rational fear of imminent harm.
- Dolo (Deceit): Deception by one party.
If consent is affected by any of these vices, the contract can be challenged within four years. Consent can be explicit (stated) or implicit (inferred from actions). A pre-contract agreement to employ someone in the future is valid but failure to fulfill it cannot be claimed as wrongful dismissal.
Consent given by mistake, violence, intimidation, or deceit is void. A mistake only invalidates consent if it concerns the substance of the contract or its conditions.
Fraud occurs when one party induces another into a contract through deception (e.g., lack of qualifications).
1.2 The Object: Concept and Requirements
The object of an employment contract is the provision of paid services. The employee provides services, and the employer provides remuneration. The object must be:
- Lawful: Not contrary to law or morality.
- Possible: Both objectively and subjectively achievable.
- Determined: Usually defined in the contract or collective agreements through job classification.
1.3 The Cause
The cause is the justification for the contract. The law follows the objective theory, focusing on the socio-economic function of contracts. Contracts can be:
- Onerous: The cause is the service provision for the worker and wage payment for the employer.
- Gratuitous: (Not typically applicable to employment contracts, with exceptions like some volunteer work).
Unlawful contracts (those against laws or morals) are void, with rare exceptions (e.g., prostitution in some contexts).
1.4 The Form
Employment contracts can be written or oral (freedom of form). However, certain contracts must be in writing (e.g., fixed-term contracts) for legal certainty, as per TRET Article 8.2. This includes contracts for:
- Practices and training
- Part-time work
- Fixed continuous work
- Replacement work
- Home work
Either party can request a written contract at any time. The content is generally free, but certain regulations must be considered, and some clauses are only valid if written. Failure to provide a written contract when required doesn’t void the contract but can lead to consequences for the employer (e.g., indefinite duration, loss of subsidies).
The employer must provide a copy of the contract to workers’ representatives within 10 days. If the employment relationship exceeds four weeks, the employer must inform the employee in writing about the essential elements and conditions of the contract, including:
- Identity of the parties
- Start date and duration
- Company address and workplace
- Professional category
- Base salary and supplements
- Working hours
- Holiday duration
- Notice period
- Applicable collective agreement