Castellán

In our country, the main regulations regarding responsibility in processes of business decentralization ("outsourcing") are given by Law 18,099 and its amending Law 18,251, whose purpose is to protect workers who are linked through subcontracting, intermediation, or labor supply, as well as to promote compliance with labor regulations.

The system establishes that the "employer or entrepreneur" (hereinafter "main company" or "user") that uses any of the three mentioned figures is responsible, among others, regarding the "labor obligations, social security contributions, work accident insurance, and professional illness, and the penalties and recoveries that subcontractors, intermediaries, or labor suppliers owe to the State Insurance Bank", in relation to their dependent workers.

Is the dismissal compensation included in that generic expression of "labor obligations"?

 

Currently, most jurisprudence understands that the mentioned laws cover both salary and compensatory obligations, and therefore include dismissal. However, this position has not been unanimous in doctrine.

We particularly adhere to the restrictive interpretation, understanding that the main company or user is not responsible for compensatory items, such as dismissal. This arises from articles 4 and 7 of Law 18,251, and the limits included therein. In this sense, article 7 of Law 18,251 states that the "labor obligations" for which the user company is responsible are "those arising from the employment relationship" that arise from a series of sources (mentioned there). Among these sources is expressly included: "the information arising from the documentation referred to in literal D) of article 4 of this law...".

And what does article 4 say? It imposes the right of the main company "to be informed" about the amount and status of compliance with labor and social security obligations by the subcontractor, intermediary, or labor supplier, in relation to the workers providing services. It will depend on the exercise of this right whether the main company responds subsidiarily or jointly with the contracted company, and as we have mentioned in previous publications (see: https://bit.ly/2raBdh3), the main company has been empowered to demand that the contracted company show a series of documents, specifically indicated in the same article, in order to verify if it complies with labor and social security obligations.

In line with the above, and here is the crux of the matter, when listing the documents that are required from the contracted company, literal D) of article 4 refers to "the work control sheet, salary receipts, and applicable collective agreement (if applicable)". Note that "compensatory salary receipts" are not included, nor is there any reference to other receipts other than salary receipts, which were expressly indicated. There is no requirement to check employment contracts or the hiring regime of the personnel assigned to the service (whether probationary, by project, fixed term, etc.). There is also no express reference to dismissal in any article of the law. Therefore, compensatory items cannot be foreseen or controlled based on the documents whose exhibition can be demanded from the contracted company and therefore known and controlled by the main company.

What does it imply in practice for responsibility to also cover compensatory items?

The consequence would be that the main company would be responsible together with the contracted company (employer) for both common dismissal compensations, as well as for special compensations that may be due to workers specially protected by labor laws, such as pregnant or recent mother workers, sick workers, and injured workers. It would also involve responsibility for the moral damage caused by harassment or abusive dismissal, and all this, with logically more serious economic consequences that the termination of these workers entails (can be seen at: https://bit.ly/2I39DMp).

All compensatory items that arise from unilateral acts of the employer (which is only the contracted company), are outside the "sphere of action" of the user company. Therefore, a different interpretation from the one we hold implies transferring the economic consequences of a decision to someone who generally does not have the power to prevent (or correct) the acts that cause them. Moreover, when entering into a contract with the subcontractor, intermediary, or labor supplier, the user company cannot know in advance what intentions the contracted company will have regarding the maintenance or termination of labor relationships with its workers.

To argue otherwise, that a third party can influence or participate in the relationship between an employer and its workers in aspects such as dismissal, would allow an intrusion or interference in the activity of another legal entity (company) with which a contract is made, which is clearly disproportionate and legally unjustified.

 

Final Reflection

For all the reasons stated, in cases of labor outsourcing regulated by Laws 18,099 and 18,215, the main company or user should not be held responsible for the amount and compliance of "labor obligations" that it cannot know and control, through the documents that the regulations allow it to demand from its contracted company. It can only control salary items (minimums, overtime, etc.) and not, on the other hand, compensatory items such as dismissal compensation.

In light of all the above, it is essential to understand the subject, have proper advice, and consider the possible economic consequences that may arise when establishing labor relationships through these contracting modalities, in order to mitigate certain related contingencies, for example, regarding the type of bond of the workers. We especially suggest considering certain good practices that can be adopted, such as: adding more controls (employment contracts) and expressly agreeing on the possibility of making deductions regarding these items.

Montevideo, May 1, 2018