Article 380 of the Labor Code[1] establishes that, during the filing of a collective conflict of a social economic nature, any authorization to terminate the contract must be authorized by the judge hearing the conflict in question, who must perform a legal analysis to authorize or deny such request, that the same is not due to retaliation derived from the filing of the collective conflict or that it limits the rights of collective bargaining.
The direct consequence for the employer who does not request judicial authorization to terminate the employment relationship is the immediate reinstatement of the employee and the payment of the wages lost; which must be ordered ex officio by the judge hearing the dispute or by means of a reinstatement complaint duly filed by the affected employee.
Based on the above considerations, the Constitutional Court has sustained for more than ten years the legal doctrine that, if the worker accepted the payment of the indemnity and other benefits to which he is entitled as a consequence of the termination of his employment relationship, it implies a tactical waiver of the right to reinstatement[2], since: “(…) strict formalistic rigor cannot prevail to the detriment of the employer and to the benefit of the worker when the latter has attempted to mislead the authorities and his own employer by requesting his reinstatement having previously accepted the payment of his severance pay and labor benefits since both circumstances cannot subsist jointly (…)”[3] (underlining and boldface are his own).
The Legal Doctrine established by the Constitutional Court rests on the premise that, during a collective conflict of a social economic nature, if the worker accepts the payment of his unwaivable benefits and severance pay, he cannot request his reinstatement, since both circumstances cannot subsist jointly.
Therefore, the factual situation described above implies that the worker, prior to filing his reinstatement claim, accepted and received the payment of his unwaivable benefits and indemnity and subsequently went to the courts in order to request his effective reinstatement in the same job and the payment of the salaries he had not received since the time of his termination of the employment relationship.
As described above, the Constitutional Court evidences and denotes the way in which it protects the protection of those who have been victims of the bad faith of the other party. Although it is true that in certain occasions it is assumed that the right to work protects the workers, neither should a “self-protection” be allowed against acts of manifest bad faith and abuse of rights, whereby the worker expresses his will to terminate the relationship, requesting the payment of his benefits and subsequently requesting his reinstatement in the same position and working conditions and that the wages foregone be paid to him.
In other words, the employer presumes the good faith and willingness of the employee who wishes to terminate the employment relationship, since it cannot force the latter to remain in an employment relationship when he/she obviously does not have the will to do so.
Regarding this point, the Constitutional Court’s analysis is correct and pertinent when establishing the aforementioned legal doctrine, since in the event that an employee wishes to terminate the employment relationship by resignation or mutual agreement, he/she should comply with a judicial authorization (in accordance with the terms of article 380 of the Labor Code) that allows the termination of the employment relationship.
In such a way that the aforementioned would imply a limitation to his freedom to freely choose his job, as established in article 102 of the Constitution, since he would be forced to remain in a legal labor relationship in which he no longer has the will to render his material and/or intellectual services, until a resolution is obtained from the jurisdictional body that authorizes or denies the request for authorization to terminate the employment contract.
Without prejudice to the foregoing considerations, the factual and legal circumstances of each particular case must be taken into account, since evidently the legal doctrine referred to could not operate if the employer does not prove the worker’s manifestation of willingness to terminate the employment relationship in the cases of resignation or mutual agreement and the proof of having paid the payment of his unwaivable benefits and severance pay.
The need to provide means of proof is an indispensable requirement for the legal doctrine established by the Constitutional Court to operate, since in the files indicated at the time of resolving the constitutional amparo action, special emphasis is placed on the form in which the express manifestation of the termination of the employment relationship and/or proof of having accepted the payment of the unwaivable benefits is recorded.
Therefore, the employer who wishes to demonstrate to the court hearing the reinstatement proceedings that the employment relationship ended by resignation and/or mutual agreement, during the precautions decreed in the filing of a collective conflict of a social economic nature, must imperatively demonstrate that the worker accepted the payment of his unwaivable benefits and indemnification in order for the legal doctrine of the Constitutional Court to operate.
Among the means of proof highlighted in the files where the aforementioned doctrine predominates are: a) Notarial acts by means of which the acceptance to the payment of his severance payment and other labor benefits is evidenced; b) Simple copies of check with signature of the worker; c) Severance payments; d) Resignation request forms with identification number; e) Resignation letters addressed to the employing entity with signature and seal of receipt thereof and; f) Agreements duly identified by the employing entity for being a state institution by means of which the resignation is accepted.
As a consequence of the aforementioned, the Constitutional Court has established legal doctrine for the period from 2009 to 2021 by which it recognizes the tacit waiver of the right to reinstatement, for those situations in which during the location of a collective conflict of a social economic nature, the worker accepts the payment of his unwaivable benefits and indemnification, since both circumstances cannot subsist jointly.
References:
Sentence dictated by the Constitutional Court dated 05/14/2009 within the file 655-2009.
Decision issued by the Constitutional Court dated 08/17/2009 in case file 822-2009.
Decision dictated by the Constitutional Court dated 08/17/2009 in case 4979-2009.
Sentence dictated by the Constitutional Court dated 09/12/2011 within the file 2247-2011.
Sentence dictated by the Constitutional Court dated 09/20/2012 within the file 1990-2012.
Judgment issued by the Constitutional Court dated 01/24/2013 within the file 2110-2012.
Judgment rendered by the Constitutional Court dated 12/11/2014 within the file 5114-2014.
Judgment rendered by the Constitutional Court dated 02/27/2018 within the file 2809-2017.
Judgment rendered by the Constitutional Court dated 11/02/2019 within the file 3375-2018.
Judgment rendered by the Constitutional Court dated 20/11/2020 within the file 499-2020.
Judgment issued by the Constitutional Court dated 09/12/2020 in case 2470-2020.
[1] Congress of the Republic of Guatemala. Labor Code. Decree number 1411 and its reforms.
[2] Ruling of the Constitutional Court issued in case number 2470-2020 on December 9, 1920.
[3] Criteria sustained in the sentences issued by the Constitutional Court in cases 2470-2020, 499-2020, 3375-2018, 361-2017, 5114-2014, 5314-2012, 2110-2012, 1990-2012, 1601-2012.