Provisional Execution of Dismissal and Payment Sentences in Labor Law

Posted on Nov 8, 2024 in Law & Jurisprudence

Provisional Execution of Sentence: Payment of Amount

Background

A businessman has been sentenced to pay a significant amount and has subsequently filed an appeal. Workers have the right to obtain advances on the amount owed, based on the initial sentence. If the appeal is successful, the worker is obligated to return the advance, hence its classification as refundable.

Advance Payment Details

  • The advance is limited to a maximum of 50% of the amount recognized in the initial sentence.
  • It cannot exceed twice the annually set minimum wage for workers over 18, including overtime.

Obtaining the Advance

  1. If an appropriation has been made, the court will grant the advance.
  2. If no appropriation exists, the advance is paid by the State, with a guarantee as assurance.

Procedure for Provisional Execution

Provisional execution can be initiated by the interested party (the employee). The request can be made in writing or in person before the court clerk. The competent body is the one that issued the initial sentence.

Effects of the Appeal’s Outcome

  • Confirmation of the initial sentence: The worker receives the difference between the initial amount and the advance payment.
  • Revocation or cancellation of the initial sentence: The worker becomes a debtor of the advanced amount (without interest). The worker must repay the employer. If the government guaranteed the repayment, the employer can claim from either the State or the worker.

Definitive Cash Implementation

The first action taken is the seizure of the debtor’s assets sufficient to cover the debt.

Phases of Implementation

  1. Request to the Judge: Requires a declaration of assets. Collaboration from public agencies (property registration, tax authorities) or private entities (banks) may be necessary.
  2. Allocation or Seizure of Property
  3. Guarantees and Embargo: Third-party claims can only be made on goods seized from the debtor.

Payment to Creditors

Payments are made according to the following order: principal, legal interest, and costs. Proportionality criteria are applied.

Provisional Execution of Dismissal Sentence

Scope

  • Applies exclusively to sentences related to dismissal for misconduct, objective dismissal, and other employer-initiated terminations (excluding specific articles of the Employment Act).
  • Applicable when the process concludes with an obligation of reinstatement, not compensation.
  • Applicable when the sentence declaring the dismissal null or void has been appealed.

Content

The employer is obligated to pay wages during the appeal. Additional content depends on the employer’s willingness to reinstate the worker and guarantees for worker representatives.

Procedure

  • Right of Action: The worker can request the employer to fulfill the obligation or reinstate them.
  • Form of Application: In writing or in person.
  • Competent Judicial Body: The court that initially declared the dismissal null or void, or the higher court handling the appeal.
  • Term: The worker can request provisional execution at any point during the appeal process, even retroactively.
  • Processing: A hearing is held where parties can present their arguments.

Effects of the Sentence

  • Confirmation of the provisional sentence: The provisional execution is completed, and wages earned during this period are deducted from the final settlement.
  • Revocation or annulment of the provisional sentence: The worker retains the right to wages earned during the appeal process without being forced to return to work. If the final decision favors the worker, the provisional execution is confirmed.