Work Contract Suspension and Leave Rights

Item 17 - Breach of Contract: Understanding Work Absences

Types of Absences from Work

• Absences
• Suspension of Contract
• Paid Leave

Suspension of Contract

Suspension of contract detracts from the obligations of work and remuneration of labor while maintaining the right to reinstatement.

Grounds for Suspension:

1. Mutual agreement of the parties.
2. The inability of the worker. This includes temporary disability leading to permanent disability. The process concludes with either: a) discharge of the worker; b) qualification of permanent disability.
3. Maternity, paternity, risk during pregnancy or breastfeeding of a child under 9 months, and adoption or fostering. The maternity suspension lasts for 16 weeks.
4. Suspension for paternity. A continuous period of 13 days, plus 2 days per child from the second child onwards. This can be combined with other permissions. The suspension may be enjoyed on a full-time basis or part-time (at least 50%).
5. Suspension due to risk during pregnancy or breastfeeding. This shall last until the contract is suspended, or until the infant reaches 9 months of age.
6. Suspension for adoption or fostering.
7. The exercise of public office or representative trade union duties, and active status. Reincorporation must occur within 30 calendar days after the cessation of office.
8. Custodial worker status or disciplinary suspension.
9. Force majeure and economic, technical, organizational, or production reasons. a) Force Majeure b) Economic, technical, organizational, or production reasons.
10. Exercise of the right to strike. (Legal strike vs. illegal strike).
11. Decision of the employee, if she is a victim of gender-based violence.

Surplus Labor

A) Ordinary Leave: The worker must have a minimum length of service of one year and can take leave for a period of 4 months to 5 years.

Problems with Re-entry:

• If there are available positions:

1. a) In principle, it is not counted for seniority purposes.
2. b) The company may dismiss the employee on leave through a collective dismissal procedure (ERE).
3. c) There is an indefinite right to re-entry until there is a vacancy of equal or similar category.

Re-entry Procedure:

1. The employee must request re-entry in writing.
2. Re-entry is conditional on the existence of vacancies in the same or a similar category.
3. If there is no vacancy, the leave of absence will continue until one becomes available.

If the employer refuses re-entry:

a) The employee can initiate proceedings for unfair dismissal.

B) Leave to care for family members.