Castellán

WORKER WHO WAS "RECENTLY" CERTIFIED DUE TO ILLNESS

Decree-Law 14,407 seeks to prevent the worker who is absent due to illness from being deprived of their job for this reason. In light of the above, the employer is obliged to reintegrate into their usual tasks the worker who has been absent for reasons of illness - duly justified.

In the same sense, the rule prohibits in principle their dismissal during illness and even afterwards, until 30 days of effective work have elapsed since returning to their usual tasks (for example, annual leave days or layoff insurance are not counted).

Therefore, if the employer decides not to reintegrate the worker once they have obtained medical clearance or dismisses them within the specified period, it is presumed that the dismissal was due to that illness, and according to the rule, they must pay a dismissal compensation equivalent to double the normal amount.

This is the case as long as they are permanent workers, entitled to dismissal. If there is no right to dismissal, the special compensation does not apply. According to the majority jurisprudential criteria, in fixed-term contracts or contracts for a specific task, once the term has ended or the task has been completed, there is no obligation to compensate the worker for any reason, because the termination occurs for other reasons (e.g. completion of the contract's purpose). This means that dismissal due to illness also does not apply, precisely because there is no dismissal.
However, despite this legal impediment, there are exceptional situations. One of them is that the dismissal is not directly or indirectly related to the illness. An example of this could be that it is due to a real and verifiable need to dispense with that job position, or a restructuring in the company. The other exception is the case of termination due to notorious misconduct (see: http://www.castellan.com.uy/es/noticias/17/iquest-cuando-la-conducta-del-trabajador-es-quot-notoriamente-mala-quot.html).

In short, this extraordinary compensation is not automatically generated by the fact of dismissal, but the employer may prove reasons that exempt them from payment, and in a possible lawsuit these reasons will be considered.

WORK-RELATED ILLNESS OR WORK ACCIDENT

Similar to cases of common illness, Law 16,074 also seeks to protect the worker who has suffered a work accident or contracted an occupational disease, granting them the right to be reinstated in the same position they held, once they have been discharged by the competent authority (BSE), or failing that, in any task compatible with their abilities.

The counterpart to this right is the employer's obligation to reintegrate them within 15 days after being discharged, and the prohibition of dismissing them within 180 days of their reinstatement.
So, what are the obligations and sanctions? If the worker is not reinstated after the leave subsidized by the BSE, they will be entitled to receive a compensation equivalent to triple the common dismissal amount.

However, the Law says nothing about the consequence of violating the obligation not to dismiss the worker within 180 days after reinstatement (stability period). In this regard, jurisprudence has developed different interpretations, with the current majority view considering that the worker should be paid the remaining wages until 180 days have elapsed since their reinstatement ("lost wages") plus the common dismissal compensation. For example, if the injured worker is reinstated and performs tasks for a period of 40 days after being discharged, the compensation that would correspond would be: the "normal" dismissal plus 140 days (the remaining days to complete the 180-day stability period).

The same considerations regarding dismissal in cases of common illness apply in this case, in that if the worker is not entitled to dismissal, no special compensation is due.

No compensation should be paid either if the dismissal is motivated by the worker's notorious misconduct or another serious supervening cause. These are the only two exceptions expressly provided for in the law. This concept of "serious supervening cause" is much more restrictive. Serious supervening cause has been interpreted as synonymous with force majeure, that is, an unforeseeable and not attributable situation to the employer, with the norm being even more protective in the case of a worker who was covered by a subsidy due to an occupational disease or work accident (even as we saw, the stability period is longer).

PREGNANT WORKER OR RECENT MOTHER

As is known, Law 11,577 recognizes the right of the female worker to be absent during maternity leave, and in line with this also imposes on the employer the obligation to keep her job while she is pregnant, and even after becoming a mother and reintegrating. The rule establishes protection in the event of maternity and therefore prohibits her dismissal, establishing that in case of violating that prohibition, a special compensation equivalent to 6 months' salary, plus the legally corresponding dismissal compensation must be paid.

Regarding the period, the cited law does not establish a stability period during which this protection applies. However, doctrine and jurisprudence have understood that it should extend for 180 days, counted from the effective reinstatement of the worker from her maternity leave (similar to the situation provided for by Law 16,074).

It should also be noted that, although the legal provision does not establish anything in this regard, in practice and judicial decisions, it is widely accepted that, for the aforementioned compensation to apply, it is necessary for the employer to be aware of the worker's pregnancy (whether it is notorious or can be proven that it was communicated).

In this case, unlike the two previously mentioned hypotheses, the special protection under analysis applies, regardless of whether the dismissal is or is not due to said condition, and even jurisprudence has understood that the 6-month compensation is due when there is no dismissal (for example, during the probation period). In summary, regardless of the reason and regardless of the right to receive the common dismissal compensation, this protection will apply, except for a single exception: notorious misconduct. There is no exemption related to the company in this hypothesis.

WORKER VICTIM OF HARASSMENT

So far, only the situation of a worker victim of sexual harassment is regulated. Law 18,561 provides that the worker can choose between claiming from the employer a special compensation for moral damages and continuing to work, or alternatively considering themselves indirectly dismissed and claiming compensation equivalent to six monthly salaries, in addition to the common dismissal compensation.

Furthermore, the Law stipulates that both the complainant and witnesses cannot be subject to dismissals or disciplinary sanctions. If they are dismissed or sanctioned within 180 days of the complaint being made, it will be considered, unless proven otherwise, that it was due to retaliatory reasons and the dismissal may be classified as abusive, entitling them to the aforementioned special compensation. In short, this is also a period of "protection".

In these cases, the employer may also exempt themselves from liability by proving that the dismissal was not in response to the complaint or testimonial statement made during the investigation but was due to another different reason.

Finally, it should be noted that although there is currently no specific law for cases of moral harassment or "mobbing" (there are several projects), the applicable regulations for the complaint procedure before the MTSS is the Law on sexual harassment and it is expected that the regulations will be similar, establishing protective measures for the complainant worker and witnesses. In fact, despite the absence of regulations to that effect, abusive dismissal could be claimed if it is a consequence of the complaint.

OTHER SITUATIONS THAT GENERATE SPECIAL DISMISSAL PAYMENT

Dismissal as retaliation for reporting to BPS. In addition to the aforementioned circumstances, Law 16,713 establishes that the dismissal of a worker as a result of reporting irregularities in the information from their work history to the BPS, gives rise to a special compensation equal to three times the common dismissal amount (in this case they are not cumulative). It is presumed that the dismissal occurring within 180 days of the observation or "report" by the worker is due to that cause (unless proven otherwise).

Abusive dismissal. Abusive dismissal occurs when the worker alleges that the employer caused excessive damages beyond those covered by the common dismissal compensation. The requirements for this to occur are the existence of a cause contrary to law, motivated by extralaboral issues, abuse and/or with the intention of economically or morally harming the worker. Some examples of abusive dismissal can be dismissal based on racial, religious, union, gender, sexual orientation reasons, as retaliation for claiming a right. Jurisprudence generally orders in these cases the obligation to pay double or triple the common dismissal compensation (without prejudice to the possible nullity and alternative of the reinstatement action in the case of "anti-union" dismissal).

FINAL CONSIDERATIONS

As mentioned, the cited regulations seek to protect workers who are in situations of special vulnerability. The consequences of dismissal in these cases are more severe than those "normally" provided for. The amount of compensation increases considerably, so in professional practice, this aspect becomes very relevant when evaluating the decision and especially the timing of staff disengagement, which can sometimes be due to cost reduction needs and yet have worse consequences (both in terms of economic impact and labor conflict).

In some of the mentioned situations, this right to special compensation is objectively configured by the fact itself and in others, the true reasons for dismissal must be taken into account (and of course the means of evidence that the employer has to prove them).

Montevideo, June 15, 2016.