Employee Rights: Modifications, Mobility, Suspension, and Termination
Individual and Collective Contract Modifications
Individual Modification: The employer only has to communicate their reasoned decision to the employee with a notice of 30 days.
Collective Modification: The procedure is somewhat more complex because the employer has to consult for a period of not less than 15 days with the representatives of the workers. During the consultation period, it is possible to reach an agreement, in which case the change is imposed from the pact. Even if no agreement is reached, the employer may decide to modify the conditions of work, which amends the worker, as in the case of individual change, with at least 30 days’ notice.
Functional Mobility in the Workplace
The employee is obliged to perform the work agreed upon in the employment contract. However, the employer may impose the performance of roles, authority be designated a functional mobility. We distinguish three forms:
- Internal Functional Mobility: This occurs inside the professional group, or where appropriate, between equivalent professions. It requires a valid reason, is not subject to time limits, and the pay should be relevant to the functions being performed.
- External Functional Mobility: These are functions outside of the professional group. It requires technical and organizational reasons, can only be maintained for as long as required, and the pay should be relevant to the functions they perform. If they are lower functions, the original pay remains.
- Extraordinary Functional Mobility: A change in functions that cannot be included in the above cases. It requires agreement between the parties and, failing that, the procedure established for substantial modifications of the contract.
Geographic Mobility: Understanding Transfers and Displacements
Geographic mobility is caused by the removal or displacement of the employee to another workplace of the same company, in a different location, which involves a change of residence.
Understanding Workplace Displacement
A displacement is the temporary transfer of a worker to another workplace for a period not exceeding 12 months within three years.
Causes: The employer must justify the displacement on economic, technical, organizational, or production grounds.
Procedure: The employer should contact the worker regarding the displacement. The notice period may not be less than five working days if the displacement is greater than three months.
Effects: If the displacement is accepted, the worker is entitled to per diem and travel expenses and also to a permit of four working days at their old home for every three months of displacement. The worker also has the option to appeal if they disagree with the displacement.
Understanding Workplace Transfers
A transfer is a worker’s final destination to another workplace that requires a change of residence or travel in excess of 12 months in three years.
Causes: The employer must justify the transfer for economic, technical, organizational, or production reasons. It is added that the move is justified if the company deems it necessary to transfer all or part of its staff (e.g., the opening of a new branch).
Procedure: The employer must communicate the transfer to the worker and their legal representatives with a minimum notice period of 30 days before the effective date of transfer. If it is a collective movement, a consultation period with legal representatives should be opened earlier.
Effects: The worker will have to choose between accepting the transfer or terminating the contract (the allowance is 20 days’ salary per year of service with a limit of 12 monthly payments). If the worker accepts the transfer, they are entitled to compensation from the company for the costs incurred by both the employee and their dependents.
Suspension of Employment Contract
A suspension is a special state of employment, which remains in force but temporarily stops the obligations of work and remuneration of labor. When the causes for the suspension disappear, the contract resumes, and the obligations under the contract are re-established.
Grounds for Suspension of Contract
- Mutual Agreement: Those set forth in the contract; the duration will be what has been agreed upon.
- Temporary Disability: Due to illness or injury, lasting the duration of incapacity.
- Maternity, Risk During Pregnancy, Adoption, or Foster Care (under 6 years): The suspension for maternity and adoption or fostering of children under 6 years will be 16 weeks. In the case of risk during pregnancy, the suspension will last at most until delivery occurs.
- Paternity: 13 calendar days, uninterrupted, extended in case of multiple births by 2 days for each child.
- Imprisonment of the Worker: As long as there is no conviction. It will last the time it takes for a sentence to be issued.
- Exercise of Public Office: Whenever performance makes it impossible to do their jobs. It will last for the maximum duration of the election.
- Exercising the Right to Strike: As long as it is legal.
- Suspension Without Pay for Disciplinary Reasons: The duration of the sanction.
- Legal Closure of the Company: The time to maintain the closure.
- Force Majeure: Due to catastrophic events. It will last for the foreseeable time the closure will be temporary.
- Economic, Technical, Organizational, or Production Reasons: Requires authorization of the work, and it will last for the time fixed in the authorization.
Understanding Leave of Absence
A leave of absence is a situation similar to, but not the same as, a suspension. The difference is that while on suspension, the employee is always entitled to re-enter the workplace. This right may not always exist on leave.
Types of Leave of Absence
- Voluntary Leave: The worker must have at least one year of seniority to enjoy it. It cannot be less than 4 months or more than 5 years. To re-order this type of leave, 4 years must pass since the end of the previous one. There is no right to reserve the job, and the worker can return if there are vacancies. If there are none, the worker must remain outside the company. The leave does not affect seniority.
- Leave for the Care of Relatives: Not to exceed 3 years for the care of each child, whether by adoption or fostering. The period is counted from the date of birth or the day it becomes legal in the adoption or foster care by court or administrative order. For the care of a relative up to the 2nd degree of consanguinity, it may not exceed 2 years. The period of leave will be counted for seniority purposes, and the worker shall be entitled to attend vocational training courses. Only during the 1st year is there a right to reserve the job.
- Leave for Appointment to Public Office: It will last for the duration of the office. The period of absence is counted for seniority purposes, and there is a right to reserve the job.
Termination of Employment Contract
Termination of a contract is the end of the legal relationship between employer and employee, which means that the contract ceases to exist, as do the obligations of both parties. The contract can be extinguished by various causes, such as by the will of both parties, by the will of the worker, by the will of the employer, and other causes.
Objective Dismissal: Concept and Causes
This is a dismissal that occurs when there are a number of objective circumstances that affect both the employee and the employer. These circumstances are legally considered objective and productive.
Causes for Objective Dismissal
- Ineptitude of the Worker: Known since joining the company.
- Lack of Adaptation: When workers fail to adapt to technical changes in their workplace, whether these changes are reasonable and the employee has been given at least 2 months to adapt.
- Repeated Absences: Intermittent absences from work, even if justified, if the number and frequency are very detrimental to the company’s productivity due to worker absenteeism.
- Need to Amortize Jobs: Objectively proven need to amortize jobs in a number below that established for the case of collective redundancy through employment regulation, and because of technical, economic, organizational, and production reasons.
- Insufficient Budget: Permanent contracts can be extinguished by the influence of a budgetary provision for the maintenance of the job in question.
Compensation for Objective Dismissal
The employer must inform the employee in writing at least 30 days in advance and simultaneously make available an award of 20 days’ wages per year worked with a maximum of 12 months. In addition, the employer must grant the employee a license of 6 hours per week paid during the notice period to search for a new job.