Castellán

Frequently, in the exercise of business advice, we face inquiries about whether a certain behavior by a worker constitutes a valid reason to exercise the right to dismissal without payment of compensation. This is what is known in our practice as a cause of "notorious misconduct." This concept is not legally defined, so it is necessary to resort to labor doctrine, which allows us to glimpse some peacefully accepted guidelines collected by jurisprudential rulings. Through this, we delve into a topic that is always current and constantly changing, according to the evolution of the reality of the times we live in.

Dismissal as an employer's right

Dismissal is the termination of the employment contract by the unilateral will of the employer. In our country - unlike in other legal systems where there are a series of requirements and limitations for the exercise of the right to dismissal - the employer is, in principle, free to dismiss without cause (except in situations specially protected by the law). As a rule and by force of law, termination entails the obligation to pay a sum for damages and losses due to the termination, which constitutes compensation for the loss of employment. However, in certain cases, dismissal is due to the worker's own attitude. In these situations, there is no obligation to pay compensation, nor the annual salary bonus or "Christmas bonus" (which is also lost for this cause). The worker will not be entitled to unemployment insurance benefits either (this must be reported to the Social Security Bank). Only the remaining expenses, such as salary, unused leave, and vacation pay, must be paid in such cases.

Now, how do you know if the worker's behavior was "notoriously bad" (NMC)?

Without a legal definition, as mentioned, there is a constant consultation about the characteristics that the worker's behavior must have to receive this qualification. Through this article, we seek to contribute to the analysis of some of the guidelines or elements that must be considered in the analysis of each specific case.

Should there have been several incidents?

The "notoriously bad" behavior can result from the accumulation of penalties for minor incidents, such as absences or unjustified and repeated tardiness, incorrect attitudes in dealing with colleagues or clients, disobedience to disciplinary power, or in general to the directives issued by the company, or rules of the Regulations. These minor incidents, when added up and considered as a whole, make the employee's general behavior become "notoriously bad" (as a synonym for being "notoriously non-compliant" with their obligations). This is the case of the worker who has been gradually sanctioned, and a single look at their record shows a general misconduct. In this case, for the employer to legitimately exempt themselves from paying dismissal compensation, it is absolutely crucial that the sanctions applied to the employee have been proportional, progressive, and duly notified, including, if possible, a warning or notice that if a fault or misconduct is committed again, the penalty will be greater. This leads to dismissal as the culmination in the scale of admissible sanctions, after repeated suspensions and after having reached the maximum of 14 days (according to the limit now agreed upon by Labor jurisprudence).

The "notoriously bad" behavior can also originate from a single sufficiently serious event.

This qualification can apply to a varied range of possibilities, which, in the case of transcendental behaviors, can range from an act with criminal appearance to an action that, without constituting a crime, constitutes a very serious disciplinary offense and implies the definitive breach due to flagrant breach of the employment contract. Some examples of these misconducts that can be classified as serious without appearing to be criminal may include mistreatment of superiors, misuse of company assets, offering services from competitors, or the falsification of medical certificates. With this, we want to point out that, with the violation of the duties of good faith and loyalty, when that trust placed in the worker is lost, an essential element in any relationship is broken. It is an intentional action that so seriously puts the employment relationship in crisis that it constitutes sufficient reason to proceed with dismissal without compensation.

Is it necessary for the employer to have suffered real damage caused by the worker?

In order to classify the worker's behavior as "notoriously bad," we understand that it is not necessary for this behavior to have caused an actual economic damage to the employer. It is necessary for the behavior to have had sufficient entity to have endangered goods or people linked to the company. It would be the example of a theft of low-value goods, or the observation of a worker's drunkenness while performing their duties. In this sense, we understand that the seriousness of the behavior cannot be mitigated depending on the existence or not of an actual or real damage to the company's assets. Otherwise, any behavior attributable to a worker that causes a risk without actually causing damage, such as the violation of safety and hygiene regulations, which our Law especially protects, could not be classified as NMC.

Is it necessary for the worker's behavior to take place while performing their duties?

The situation in which, despite having the characteristics of notoriety and seriousness, the misconduct that occurs outside strictly work-related activities can constitute this cause is widely debated. This, understanding that one of the required requirements is missing. Traditionally, the majority position of our Labor Judges has been that the worker's misconduct must occur during work or at the workplace to be classified as "notoriously bad." In our opinion, in these cases, the concept of damage, together with the "loss of trust" mentioned above, becomes relevant.

Indeed, the abuse, rupture, or breakdown of the trust element is directly and strictly linked to good faith in the execution of the contract, and the configuration of the NMC, especially from the perspective of the concept of an irreversible crisis in the relationship, due to the actions of one of the parties. Therefore, we understand that any behavior that seriously disrupts working conditions or damages the company's reputation (causing harm), causing the employer to lose trust in their worker, should also constitute "notoriously bad conduct," even outside working hours and/or workplace. Logically, the above will be directly related in each specific case to the position held by the employee and the activity carried out by the company.

Who must prove that the worker's behavior was "notoriously bad"?

Frequently, we see how, in clear situations, employers end up indemnifying workers because they fail to prove the "NMC" exemption. Our Law states that "the employer must prove the facts constituting notorious misconduct." And in the same sense, our Labor Judges have historically indicated that it is up to the company to prove that the sanction was fair and proportionate, and "who applies the sanction must demonstrate the worker's guilt". This last point is precisely what sets it apart from "common" dismissal. The demonstration of the existence of the analyzed elements is what imposes the deprivation of compensation as a punishment. Our Courts agree that "the proof of notorious misconduct must be clear, full, and leave no doubt". This means that if there are doubts, the issue will be resolved in favor of the worker, applying labor law principles. Therefore, the payment of compensation will depend on whether the employer can prove the existence of that notoriously serious fact or, depending on the case, has documented the accumulation of minor offenses.

For the latter, it is essential that the sanctions, not only the suspensions but also the warnings and admonitions, are all documented in writing, with the worker's notification noted (acknowledged).

We are often asked what to do when a worker refuses to sign the notification of a sanction. For these purposes, it is necessary to explain that notification does not imply acceptance in any case. On the contrary, being notified brings with it the possibility of making their defenses, which undoubtedly provides greater assurance. However, there are other options such as notification by registered mail with return receipt requested, or requiring the signature of two other workers as witnesses, to record that communication. All of this is of utmost importance to document the background in the case of notorious misconduct due to the accumulation of sanctions.

Ultimately, considering that the outcome of a possible litigation depends mainly on judicial assessments, it is vital to orderly keep a file for each worker, where, in addition to the employment contract, the record or notification of the delivery of the Internal Regulations, documenting the gradual application of sanctions, etc., are archived, all of which will serve, when necessary, to prove the disciplinary background. Given that this is an exceptional situation, it must be taken into account that incontrovertible and unequivocal evidence is required for its protection, and on this principle, any subsequent defense in case of a judicial claim should be articulated.

Of course, no case is the same as another, and therefore there is no "manual" of "notoriously bad" behaviors. Each situation will be assessed by the Judge handling the specific case, so we recommend seeking professional advice in each specific case regarding whether a behavior can constitute NMC and if there are sufficient and adequate evidentiary elements. Also, as in many other aspects of daily business life, we suggest correctly documenting all the background information, from the beginning of the employment relationship and even, as mentioned, in the face of the most minor offenses.

Montevideo, October 16, 2013.