The Labor Chamber of the National Court of Justice (CNJ), through a judgment of cassation issued on January 14, 2021, has issued an important ruling in labor matters. The ruling determines that it does not matter if the worker has not notified his employer that he is in charge of a person with a serious disability: the employer is obliged to find out and, when the time comes, must prove, in a judicial process that he took the measures of the case to find out about these facts and that, despite having taken them, it was the worker who concealed them.
Background
The former worker sued her former employer because, among other things, when she separated from her employment from said company, the special compensation provided for in Article 51 of the Organic Law on Disabilities (hereinafter “LOD”) was not paid to her in the settlement; A payment that, according to her, should have been made, since she has a son with an 82% disability and a serious illness in the terminal stage (Process No. 17371-2018-04858).
Originally, the Labor Chamber of the Provincial Court of Pichincha denied her the payment of said compensation, as the judges affirmed that the former worker had not notified her former employer of the existence of this particular. Consequently, as she could not prove that the employer was aware that the son was in such condition, there was no reason for the special and additional benefit of LOD to be paid.
Judgment
However, the Labor Chamber of the CNJ (the highest court of ordinary justice in Ecuador) has decided that the payment claimed is appropriate, despite the fact that the former employer had not known the fact.
The arguments of the Labor Chamber of the CNJ are:
- The LOD "does not contemplate as a requirement to access the compensation provided there, that the employer be notified at the initiative of the formal worker and directly about the fact that he is in charge of the support of a person (...) in a situation of disability."
- Given the circumstances and the situation of inequality in which the workers find themselves, it is the employer who must seek to obtain sufficient information from them, such as the fact of dependents with disabilities.
- In a judicial proceeding, it must be the employer who shows that, despite having requested information in this regard, it was the worker who concealed it or prevented the employer from accessing it.
Although this ruling affects, in principle, only the parties that were confronted in this judicial process, it is easy to deduce, with this precedent, what will be, in the future, the jurisprudential line that the CNJ will follow in similar cases.
We recommend adopting the appropriate measures so that, when the time comes, they can prove, in a documentary way, that they did what was within their power to know whether or not their workers have people in their charge with serious disabilities, for which they should "use of the appropriate means to find out about the burdens of its workers.
Important : This TOP Memo is not and cannot be used as advice or opinion, since it is only an informative document.
