Rights, Duties & Powers of Workers and Employers
Rights and Duties of the Worker and the Employer
Right to Respect for Personal Privacy and Dignity
The employer has the right to control, order, and sanction. The status of workers is a control mode, including records of the worker or the box office or personal belongings (Art. 18 ET). These records can only be performed when necessary to protect economic assets or the employee. These records should be performed in the workplace and during working hours. When performing the records, the worker and at least one representative of the workers should be present. In the case of representatives of workers abusing the hours intended for representative functions (such as having to go to the union, but instead going shopping), a restrictive doctrine can be applied by controlling, because being a representative offers special protection in cases of private detectives tracking them. The right to dignity can be affected by changes in the employment contract (e.g., vertical downward functional mobility).
Sanctions may be covert. Covert actions can denigrate the person or the worker.
Right to Protection from Offenses of a Sexual Nature (Verbal and Physical)
This includes offenses that can be made by the employer or another employee of the company. The offenses may be verbal. Tests and consequences will be evaluated for each particular case.
Right to Timely Payment
Payment must be received by the deadline, as set out in Art. 29 ET: the time of payment of wages is fixed in the collective agreement, contract, or customary work. Frequency can be daily, weekly, monthly, or annual. The periodicity is free, but all quantities are periodic and should be payable periodically. Other amounts can be paid in different situations, such as benefits. The date the salary is paid must be the same date each month. Even if the employer fails to make timely payment, the employee must continue working.
Job Duties: Unfair Competition
Multiple employment (working in various companies) is supported, relative to the right of the worker and that worker being self-employed. In terms of Social Security, multiple employment is considered a general system as an employee of the special arrangements. Such competition, if the employee is engaged in the same business and has not communicated anything to the employer (for multiple employment or moonlighting), shall be considered disloyal. It will be considered unfair competition when the worker has not communicated to both companies that they are working for the other company and have knowledge or information of the first company.
Unfair competition is not only limited by multiple employment, but also by the exclusive arrangement or full-time employment: working exclusively for the company. The pact must be in writing and must explicitly state the exclusive dedication.
Post-Contractual Non-Compete Covenant
This pact prevents the worker from working in the same industry even after the contract ends. It is a major constraint. This agreement is accepted where the employer has a real business or commercial interest and the worker will also be compensated financially (more compensation than if the worker denies the pact, as it restricts many worker rights). It is limited in time. At most, the non-compete will not last:
- 2 years for technical roles
- 6 months for other roles
Duty of Care
Every worker, for the engagement, is obliged to provide services within their category and the posts they occupy, and is to work diligently, meaning a minimum of performance in quality and quantity.
Duty of Performance
If there is no measurement system, the usual or customary performance of the sector or the company itself will be used. In addition, the contract may expressly agree to reach a given performance (usually for people like heads of gutters, plus commercial roles). Normally, this usually entails additional financial rewards. If the employee does not meet the agreed performance, they are in breach of contract and thus can be fired. Sometimes, they are not dismissed because it only provides for a salary supplement.
Powers of the Employer
1. Direction
2. Control
3. Disciplinary Activity
This is solely the employer’s responsibility and is regulated in Art. 58 ET. The Labor Inspectorate controls the employer. The faults and breaches of work should be typed in collective agreements.
Sanctions are prohibited:
- When the penalty is a fine in the case of a purely economic issue. Suspension of employment or salary as a sanction is accepted. The worker will not be paid, for example, if they do not go to work one day.
- To endeavor to reduce the right of the break from work as punishment for anything. The penalty cannot be appealed except in the case of gross misconduct (not a fine) and the worker uses it.
Prescription for the Lack of Workers
The first thing to check is if the employer wants to discipline a worker. The timeframe is as follows:
- Minor offense: 10 days
- Serious violation: 20 days
- Very serious infringements: 60 days
These terms are from when the employer becomes aware of the offense. This is done in case the worker conceals it.