AIM Employment Information

II.- NEW EXTENSION OF PROHIBITION OF DISMISSALS WITHOUT CAUSE- DECREE Nº 413/21.- COMMENTS

Through this standard, published in the B.O.R.A. dated 06/28/21, The National Executive Branch decided to extend until December 31 of this year the prohibition of dismissals without just cause and for the reasons of lack or reduction of work and force majeure.

The measure includes the prohibition of suspensions for the same reasons, excepting those carried out under the terms of article 223 bis of the employment contract law.

The dismissals and suspensions that are ordered in violation of the measure will not produce any effect, and the existing labor relations and their current conditions will remain in force.

It is noteworthy that the prohibitions will NOT be applicable to contracts concluded with posprior to the entry into force of Decree 34/2019 – that is, on December 13, 2019 – nor to the National Public Sector defined in article 8 of Law 24,156

Those who are included in the legal work regime for construction industry personnel of Law 22,250 are also exempt from the prohibitions.

COMMENTS: Employers are reminded that, as a result of the prohibition, the worker who is dismissed without cause may eventually challenge the dismissal in court, requesting its annulment, with the consequent “reinstatement” in the job. and continuity of the employment contract, with the right to remuneration.

Now, in the case in which the worker dismissed without just cause simply receives the compensation derived from his unjustified dismissal, it must be kept in mind that decree 39/2021 extended until December 31 of this year 2021 the public emergency in occupational matters declared by Decree 34/2019 and, with it, the double compensation for dismissals without just cause (duplication that is currently moderated in its amount, since may not exceed the sum of $500,000)

REMINDER: SUPPLEMENTARY ANNUAL SALARY - GUIDELINES FOR ITS SETTLEMENT.

Given the imminence of the payment date corresponding to the first installment of the SAC, this is next 06/30/20, we remind members that the value of the installment of said concept  is calculated based on 50% of the highest monthly remuneration earned for any reason.

The vacation leave integrates the remuneration “accrued for all concepts” in the semester. Logically, for the calculation of the SAC, if that license begins in a month and ends in orFurthermore, the amount accrued for this concept in each month will be considered separately when comparing the monthly periods to determine which has been “the highest monthly remuneration.”

 Law 20,744 on Employment Contracts only provides for the proportional payment of the SAC in the event of termination of the employment contract (Art. 123 LCT)  ; but the same solution applies when during the development of the employment relationship for any reason no remuneration has been accrued during the entire semester (Art. 1 of decree 1078/84).

Consequently, there will be situations during which remuneration is not accrued during part of the semester - in which case the settlement of the SAC will be proportional to the period in which remuneration has been accrued -   and others in which the accrual is not directly recorded. of thes themselves during the entire semester, the latter assuming that the payment of the SAC will not correspond.

An example of such situations in which during all or part of the semester there is no settlement of salaries, and therefore SAC does not accrue, can be found those cases in which the worker enjoys an unpaid leave. of salary for particular reasons,  maternity leave, leave of absence, the period of job retention, disciplinary suspensions. In particular cases of temporary work incapacity resulting from a work accident and occupational disease, the employer, when calculating and settling the first installment of the SAC, must do so in proportion to the fraction of the semester during which remuneration was accrued, since the ILT  liquidated  according to  Law 24,557 includes  the prop partortional of SAC (MTEySS Resolution 983/20, Art. 2).   etc.

In fact, by interpretation and application of Dec. 1078/84 cited above, these cases of absence of remuneration accrual also fall into those cases in which the worker receives a "“ non-remunerative benefit" . For example, by virtue of the application of an agreement entered into within the framework of Art. 223 bis of the LCT, the only suspensions due to lack or reduction of work or force majeure are currently legally authorized. This can be said as a general rule, unless the particular agreements establish a different solution.

The framework agreement signed by the signatory parties of CCT 260/75 – Metallurgists – ADIMRA-UOMRA on 04/28/2020, in its clause 2.8 last paragraphafo says verbatim "It is expressly stipulated that for the settlement of the SAC corresponding to the first semester of the year 2020, the best normal and customary remuneration accrued in the semester will be taken as a basis without formulating any reduction in the calculation derived from the fact that the worker would have been suspended for the reasons provided here during a temporary period of the respective semester". Said Framework Agreement has been successively extended and is valid until 06/30/21.

In relation to the “non-remunerative” increases provided for in joint salary agreements, it will also be necessary to comply with what the particular agreements stipulate. If nothing is foreseen, the liquidation of the SAC will not proceed

Regarding the “non-remunerative benefits” established within the framework of the last Agreementsalary UOM-ADIMRA, within one of the last paragraphs of clause 2) it is established that: “The Parties record that, for the purposes of calculating the non-remunerative benefit agreed here, the percentage in Each case indicated above will also apply to the categories of overtime, vacations and Supplementary Annual Salary.”

REMINDER: CLEARANCE OF NATIONAL HOLIDAYS

We remind associates that for the determination of salary corresponding to the holiday, the Employment Contract Law in its Art. 169 refers to the provisions of Art. 155 for the calculation of the holiday salary. Consequently, to calculate the holiday salary, what is provided for in this rule must be considered, depending on whether the remuneration is settled on the basis of monthly salary, daily wage, variables or remunerations of an accessory nature.

The holiday salary of the worker paid through a monthly salary is determined by dividing this by 25 (Art. 155 inc. a, LCT). If no services were provided during the holiday, the worker paid with a monthly salary has the salary for that day incorporated into his normal salary, whatever day of the week that day coincides with.

On the other hand, the amount that corresponds to the worker paid through wages will be equivalent to the amount that he would have received on the day prior to the date of the holiday, considering the usual day of 8 or 9 hours, as appropriate (Art. 155 inc. . b, LCT), the second paragraph of Art. 166 of the LCT also provides that "On said days, workers who do not enjoy the respective remuneration will receive the salary corresponding to them, even if they coincide with Sunday."