Changes in working conditions
The right of the employer to make (unilateral) variations in the terms of the contract only reaches certain "secondary" aspects, justified by reasons of organization of the company, and as long as they do not harm the worker. Logically, and as a consequence of the above, the issue offers special difficulty when it comes to matters that do affect the worker, directly or indirectly implying a deterioration (e.g. salary). This is not specifically provided for in a rule, and being a situation absolutely controversial, in our practice we analyze the different alternatives according to the specific case.
WHAT DOES THE JURISPRUDENCE SAY?
According to our experience, and conducting a survey of national doctrine and jurisprudence, at least three clearly distinguishable positions are identified: A first opinion argues that we should focus on who made the proposal (if it is at the request of the worker, who for personal reasons, for example, decides to reduce the working hours with the consequent salary adjustment). On the other hand, for a second doctrinal trend, in the presence of a deterioration without any consideration, the worker's consent could never be considered valid. Even if there is compensation, it will depend on the circumstances surrounding the agreement, the amount received, etc., to verify the value or not of that acceptance.
Finally, there is a third position, to which we adhere; for which the conditions arising from the contract can be waivable, provided they are based on objective (legitimate) reasons, both parties consent, and the minimum and non-waivable rights imposed by law are considered. In view of the above, we could preliminarily state that it is necessary to implement the adjustment of working conditions through a contract modification agreement, in writing and by mutual agreement.
VALIDITY OF CONTRACT NOVATION.
The validity of these agreements is then related primarily to consent (mainly of the worker), which is not presumed and must be proven by the invoking party, that is, the company in case of litigation. On the other hand, the validity of the novation of the employment contract will also depend on there not only being a resignation on the part of the worker. For example, if it were a modification proposed by the company, it is understood that an advantage should be offered in return. This would be the case, for example, of an economic bonus (to mitigate the damages of the novation).
CONSENT OR INDIRECT DISMISSAL.
Ultimately, different alternatives must be managed, seeking to reach an agreement. The worker must even have the possibility to refuse and choose to be dismissed. It will depend on whether there is free consent, or whether it can be considered indirectly dismissed, leaving his job and then claiming compensation (due to the harm caused by the unilateral modification). Another aspect to consider is that our jurisprudence does not allow salary reductions due to an economic situation that the company may be going through. Based on the principle of risk alienation, if the worker does not participate in the profits or in the management of the company, it is logical that he does not participate in the losses either. It has been determined that there is no valid novation if the worker, for whatever reason, does not receive any consideration or benefit in exchange for the salary reduction (i.e. if he simply agreed in exchange for keeping his job). Regarding the consideration, our law includes a doctrinal construction, which refers to the payment of a partial compensation, calculated on the basis of the salary that the worker loses or stops receiving, plus the implications this entails. However, conceptually it cannot be considered dismissal, because the termination of the relationship is not verified. It is nothing more than an alternative sometimes adopted in practice, as a way of quantifying the compensation that may correspond, therefore it does not give absolute certainty nor is it the only element considered when facing litigation.
From the above, it follows that having had the employee the possibility to choose between receiving his dismissal payment, or entering into a novation of his contract and remaining linked; once he has opted for the latter alternative, it would not be viable to later claim as if such agreement had not existed. In the same sense, it is unanimously accepted that, for a worker to be considered indirectly dismissed, three requirements must be met: 1) a proven breach or abuse by the employer causing harm; 2) the decision to disengage; 3) the consequent withdrawal of the worker. Therefore, if there is a modification that corresponds to a certain extent, depending on the case, and/or a compensatory payment is perceived for such variation, the employee cannot simultaneously claim a damage that makes the continuation of the relationship impossible and intolerable.
Finally, another element of great relevance when assessing these types of agreements is the existence of prior advice to the worker (by a professional of his trust) and the factual circumstances surrounding it (for example, the position held and the possibilities of access to information). These will be components that undoubtedly play in favor or against the authenticity and autonomy of his will.
FINAL CONSIDERATIONS
It is essential to bear in mind all the above when formulating a proposal for this type of agreement, monitoring, regardless of the case, the necessary conditions to implement it. In other words, it would be possible to propose a modification in working conditions, as long as these provisions are observed, in order to minimize the risk of a subsequent claim for indirect dismissal.
Montevideo, February 20, 2015.
