Job offering. The Labor’s Federal Law
The Labor’s Federal Law 48th article establishes that the employee could request to the Arbitration and Conciliation Board;
- To be reinstated on the job it was doing
- To be indemnified with the three months salary amount
The employer must prove in the first place that it didn’t fairly or unfairly fire the employee, the reason why we will explain the “Dismissal prove burden reversal” also known as “Good faith job offering” this concept works on the employer’s benefit since it allows to move the burden of the proof towards the employee, in such a way that if it doesn’t fulfill with this burden the dismissal won’t be a certainty and won’t prevail the constitutional compensation for dismissal or the reinstate.
The employer will deny there was a dismissal, however, it can’t deny the working relationship to be able to offer the job which means “to reinstate” the worker, all time that if it recognizes the dismissal, it would be unlikely that the employer would wish to carry on with such labor relationship.
Presumptions and requirements of the Dismissal prove burden reversal
1) That the worker counts on with the guarantee of stability and permanence on the job, executes the constitutional compensation for dismissal or reinstatement, derived from an unjustified dismissal;
2) That the employer accepts there was a labor relation and denies have fairly or not fired the employee,
3) That the employer doesn’t plead that the end of the labor relationship was due to the work conclusion or have reached its pointed out conclusion date, for the case the contract had been entered into by work o a determined period.
Requirements for the job offering
1) Offer the job in the lawsuit and exceptions stage.
2) That at the moment the proposition is made the job source hasn’t extinguished, although its activities are suspended due to a strike.
3) That the employee is aware of the offering and it is required to answer.
4) That is qualified as good faith.
5) That the job offer is made under the same or better terms it was being carried on and not lower to those established in the law.
Since the parties’ behavior is watched so it can be qualified as Good Faith.
Legal consequences due to accept or reject the job offer.
If the worker accepts the job offer, It’ll have the following legal consequences:
1.- The worker is reinstated to its position and supposing its main action was the Constitutional compensation, by accepting the job it modifies its action to the reinstatement, reason why the employer must be absolved of such compensation claim.
2.- Starting from the reinstatement it will be only sentenced to pay the corresponding unpaid wages from the dismissal date until the reinstatement.
If the worker refuses to accept the job offer, there will be the following legal consequences:
1.- For the case where the worker’s main action is the compensation and the offer is qualified as in bad faith and the unjustified dismissal is confirmed, the employer will be condemned to pay the unpaid wages from the dismissal date until the ruling’s fulfillment, supposing that there was a job offer and it was qualified as in good faith, the worker can either reject or accept it, however, if it’s proved an unjustified dismissal took place, it’ll be condemned to the unpaid wages previously described.
2.- For the case where the worker’s main action is the reinstatement and the job offer is qualified as in bad faith, the unjustified dismissal is confirmed, the employer will be condemned to pay the unpaid wages until the reinstatement date.
While the job offering works on the employer’s benefit, it will depend on the Labor Authority if it’s made in good or bad faith for this one to proceed.
