Understanding Employment Agreement Extinction: Causes & Rights
Understanding Employment Agreement Extinction
Types of Leave
Volunteer Leave
According to art. 46.1, employees with at least one year of service can request unpaid leave for a minimum of two and a maximum of five years. The position is reserved, and the employee has a prior right to rejoin the company. The employee must notify the employer within the agreed-upon timeframe. If a vacancy exists, the employee returns to work. If no vacancy exists, the employee waits for one. Failure of the employer to respond is considered tacit dismissal.
Compulsory Leave
Employees performing public office or holding representative positions within the administration may be granted leave if the public office is incompatible with their work. The position is held, and seniority is maintained. The employee rejoins the company within one month of ceasing their public duties.
Leave to Care for Children and Other Relatives
Following the birth of a child, either parent may take leave to care for the child, with a maximum duration of three years. The position is reserved. In the first year, the same position is guaranteed; in the remaining two years, a similar position is offered. This leave is computed for seniority purposes. If another child is born during the leave, the first leave ends, and a new leave period begins after the second delivery.
Extinction of an Employment Agreement
The termination of an employment agreement involves the extinction of employee benefits and obligations for both the employer and employee. In all cases of extinction, a settlement must be reached. The employer must provide the employee with a final proposal.
Causes of Extinction
By Mutual Agreement
Beyond the Control of Parties
- Permanent Disability: Total, absolute, or severe disability leads to contract extinction. No agreement is necessary except for compensation.
- Death of Worker: Extinguishes the contract. A declaration of death is required.
- Death of Employer: May lead to contract termination if family members do not continue the business.
- Worker’s Retirement: Leads to extinction unless partial or flexible retirement is in place.
Common Will of Worker and Employer
- Causes Fixed in the Contract: (Conditions precedent)
- Mutual Agreement: During the employment relationship. The effects are determined by the parties.
- Temporary Contracts: The length must be agreed upon. Labor and service contracts may lead to compensation of 8 days’ wages.
By Unilateral Will of the Worker
- Resignation: Workers must provide notice. The notice period is usually agreed upon in the collective agreement (typically 15 days). Breaching the notice period allows the employer to deduct days from the settlement. Failure to comply fully may allow the employer to claim damages in addition to discounting the 15 days. No compensation is provided.
- Termination Due to Employer Breach: Termination of the contract at the worker’s request due to a serious breach by the employer (art. 50). The termination takes effect from the sentence date. The allowance is 45 days per year with a maximum of 42 months.
By Unilateral Will of the Employer
- Withdrawal (Dismissal): May occur in three cases:
- During the trial period
- Dismissal of senior executives
- Dismissal of domestic staff
- Dismissal by force majeure
- Disciplinary Dismissal: Termination of the contract by the employer due to a serious and culpable failure of the worker. The failure must be related to employment or work, attributable to the worker, and of a certain gravity. Causes include:
- Repeated and unwarranted absences or tardiness (as per the collective agreement)
- Indiscipline in the company
- Verbal or physical offenses against colleagues or the employer
- Violation of good faith or breach of trust
Procedure for Disciplinary Dismissal
The employer must prove that the offense has not prescribed. If it has not, the employer must provide written notice including:
- The imputed facts
- The date of the offense
- The meaning of the dismissal
The employer terminates the contract with the dismissal letter. The employee can claim within 20 days. There is a 15-day period to apply for unemployment benefits from the termination date.