Labor relationship termination with no liability for the employer
The Federal Labor Law, in chapter IV, gazes the possibility to terminate a working relationship, that is to say, end up a working relationship, either by a worker or an employer, for fair cause and without liability; that is, without this being interpreted as work abandonment or an unjustified dismissal.
In this case, we will talk about the reasons for the employment relationship rescission, without liability for the employer. That is, under what assumptions the employer may terminate the employment relationship without it being understood, legally speaking, as an unjustified dismissal.
In accordance with article 47 of the law in question, the following assumptions will be considered:
- The worker’s deception or, if applicable, the union that has proposed or recommended the employee with false certificates or references in which the worker is attributed capacities, aptitudes or faculties it lacks.
- At this point, it should be mentioned that this cause of rescission will cease to have effect after thirty days the worker has provided services since it is considered enough time for the employer to find out the deception.
- That the worker falls into, during his work, in lack of probity or honesty, in acts of violence, threats, insults or mistreatment against the employer, its family members or the company’s or establishment managerial or administrative staff, unless there was a provocation or acting in self-defense; either against their co-workers, the employer, their family members or the managerial-administrative staff.
- That the employee, intentionally or without intent, but through negligence, causes material damage during the performance of the work or because of it, to the buildings, works, machinery, instruments, raw materials and other objects related to the job.
- That, motivated by the worker’s imprudence or inexcusable negligence, the establishment’s or people in it safety is compromised.
- The worker commits immoral acts in the establishment or place of work.
- That the worker, due to its job, discloses manufacturing secrets or discloses matters of a reserved nature, with prejudice to the company.
- Incur in more than three assistance absences in a thirty days period, without the employer’s permission or without justifiable cause.
- The lack of the worker’s insubordination to the employer or his representatives, without justifiable cause, as long as it is for the hired job.
- If the worker refuses to adopt preventive measures or to follow the procedures indicated to avoid accidents or illnesses.
- When the worker goes to work in a drunken state or under the influence of a narcotic or drug, unless, in the latter case, there is a medical prescription. In this case, and before starting his service, the worker must inform the employer and present the prescription signed by the doctor.
- When the worker gets a sentence that imposes time in prison, which prevents him from fulfilling the employment relationship.
The employment relationships termination is a procedure called “PARAPROCESAL” that will be processed before the corresponding Conciliation and Arbitration Board, however, a written notice will be given to the worker first, telling the date and cause or causes of termination.
In the event that the worker refuses to receive it, the employer will have the five business days, following the termination, to inform the corresponding Board, providing it with the registered address and requesting its notification to the worker.
When the written notice of the employment contract termination is made through the Board, the employer is not compelled to prove that the worker refused to receive it or that it was unable to deliver it, because in accordance with the provisions of the articles 983 and 991 of the Federal Labor Law, it is enough to let the Board know one or the other thing so that it, within five days following the receipt of the promotion, proceeds to the required notification, without the requirement that the employer certifies said circumstances, since this is the subject to the respective trial.
It is important to point out that this “paraprocesal” procedure is constituted by actions in which there is no controversy or litigation.
Finally, it should be mentioned that the lack of notice to the worker or the Board, on its own, would be enough to consider that the dismissal was unjustified.
In the event that a worker incurs in one of the causes for rescission of the employment relationship, and the employer had notified the worker or the corresponding Board, he will have a support and a convincing proof that, under no circumstances it was an unjustified dismissal, since the workers very often claim that they were dismissed from their jobs, without this being true, which has as consequence that they claim unjustified dismissals and benefits that do not correspond to them derived from said dismissal.