Employment Contract Modifications and Termination
Employment Contract Amendments
Amendment: Alteration of the services or conditions agreed in the contract.
Amendments can be:
- Functional
- Geographical
- Substantive
Functional Mobility
Functional: The worker assumes roles different from those originally agreed upon.
Geographical Changes
Geographic: Occurs when changing the workplace requires the employee to change residence.
Temporary Deployment
Temporary change of workplace and residence.
- Period: Up to 12 months within 3 years.
- If longer than 3 months, five days' advance notice is required.
Definitive Move
Permanent or long-term change of a workplace and residence.
- Period: Up to 12 months within 3 years.
Substantial Changes
Substantive: Relates to the basic elements of the employment contract.
Substantial changes include alterations to:
- Workday hours
- Shift work
- Pay
- Work and performance requirements
- Extraordinary functional mobility
Contract Suspension
Suspension of the contract: Temporary disruption of the basic obligations of the contract. The contract is not extinguished.
Causes for Suspension:
- Mutual agreement
- Temporary disability
- Imprisonment
- Disciplinary reasons
- Legal closure of the company
- Leave
Contract Extinction (Termination)
Extinction: Means the total severance of employment.
Causes for Extinction:
- Mutual agreement
- Resignation and abandonment
- Death
- Retirement
- Dismissal
- Collective discipline
Resignation vs. Abandonment
Resignation: Notice given by the employee, who may claim termination without cause.
Abandonment: When the employee leaves work without notice, and the employer can claim damages.
Employer Breach
Serious breach of the employer: Can result from substantial changes in working conditions or non-payment or delays in payment.
Types of Dismissal
Disciplinary Dismissal
Disciplinary Dismissal: Originates from a serious and culpable breach by the worker.
Causes include:
- Lack of attendance and punctuality
- Disciplinary issues
- Physical or verbal abuse
- Drunkenness or drug abuse
- Harassment
Dismissal for Objective Reasons
Dismissal for objective reasons: Occurs due to causes beyond the control of the worker.
Causes include:
- Ineptitude
- Lack of adaptation
- Absenteeism
- Job elimination
Collective Redundancies
Collective redundancies: Based on economic, technical, organizational, or production reasons.
Dismissal Appeal Process
Appeal Steps
The appeal of the dismissal: If the dismissal is not accepted, first proceed to the SMAC (Social Mediation, Arbitration, and Conciliation Service), and then proceed to judicial review.
Conciliation
Conciliation: A prerequisite for processing any proceeding before the social court regarding dismissal.
Outcomes can be:
- To compromise (if an agreement is reached)
- No compromise agreement (if no agreement is reached)
Jurisdiction Outcomes
Jurisdiction outcomes:
- Appropriate (when the employer is found to be correct)
- Irrelevant (when the worker is found to be correct)
- Null (the employer must reinstate the worker)