The Basic Law No. 27,742 in Article 94 of Chapter II of Title V, corresponding to the labor reform, which may constitute serious labor injury, as an objective cause for termination of the employment contract, participation in blockades or takeovers of establishments.
One of the parties may terminate the employment contract in the event of non-compliance by the other party with the obligations arising therefrom that constitute an injury and which, due to their seriousness, do not allow the continuation of the relationship.
This first paragraph makes it clear that either party, employer or employee, may file a claim in the form of reporting the other if the claimant believes that the other is failing to meet his or her labor and/or social security obligations and that he or she considers these to be insulting and that, in addition, he or she believes that the malicious conduct of the other makes it unsustainable to continue the employment relationship that unites them.
The assessment must be made prudently by the judges, taking into consideration the nature of the relationships resulting from an employment contract, as provided for in this law, and the modalities and personal circumstances in each case.
The second paragraph, although the complaint and/or claim of one of the parties (employer-employee) of the 1st paragraph is subjective based on its sound criticism and interpretation, the action must be submitted to the assessment of a magistrate where the obligation is placed on the Judge to have prudence and consideration of the labor relationship of the parties before the complaint and/or claim of one of the parties of the labor relationship always based on the basic law, the LCT and personal details of each specific case and not generalize.
In the third paragraph, the legislative novelty comes into play and a great controversy and a new division of labor doctrine arise, above all, in the area of union law.
The basic law creates a new type of dismissal, which is considered a “serious insult”. This is the dismissal or termination of the employment relationship. for participating in blockades or takeovers of establishments.
What do we understand by “participation in blockades or takeover of establishments”?
The LCT itself calls “establishments” any technical or execution unit intended to achieve the company’s objectives, through one or more operations.
In other words, this is about the place where tasks are performed, which, in most cases, can be in conjunction with the company’s central administration.
In conclusion, if an employer’s dependent participate in a workplace blockadeunderstood as blocking, not allowing passage, closing the passage, not allowing passage through a certain place, obstruction, among other forms of blocking or if an employee of the employer take the workplace. Understand taking, improperly appropriating, making one’s own what belongs to another, usurping, conquests, among other synonyms.
The employer with respect to this employee or employees who block the workplace, do not let anyone through, or take over or usurp it, appropriating it as their own, He may, by means of a reliable notification (a Letter of Document), dismiss him or those who have participated in the blockade or occupation of the workplace, the dismissal being not only with just cause not imputed to the employer but also as a serious insult.
Article 94 of the basic law continues with a presumption in favor of the employer where it rules out any objective assessment and judicial evaluation because it clearly states:
Serious injury is presumed to exist when, during a direct action measure:
- a) the freedom of work of those who do not adhere to the strike is affected by acts, events, intimidation or threats;
- b) the entry or exit of persons and/or things to the establishment is totally or partially prevented or obstructed;
- c) damage is caused to persons or property owned by the company or third parties located in the establishment (facilities, merchandise, supplies and raw materials, tools, etc.) or they are improperly retained.
Now, what happens with a right of constitutional and supra-legal rank? The right to strike.
The right to strike is enshrined in art. 14 bis of the National Constitution and in art. 8.1.d) of the International Covenant on Economic, Social and Cultural Rights incorporated into the block of constitutionality.
The strike consists of the Abstention or interruption of work activities by dependentswhich aims to claim compliance with a right, obtain some benefit, or request some action from the employer.
Although this activity has many different manifestations, its characteristic feature is the cessation of the provision of work activities.
As the Supreme Court of Justice of the Nation held: The strike and the direct action measures assimilated to it: “intermittent stoppages”, “work according to regulations”, “work without enthusiasm”, among others, imply the abstention of the work performance by the dependents as a means of pressure to achieve the satisfaction of certain previously expressed claims.
Participation in the strike must be, with the precondition of the collective declaration by the organized trade union association in a “free and democratic“, an act of personal adhesion of each of the dependents.
That is to say, although the call is made by the collective, the effective adhesion or participation must be personal.
For this reason, I consider it necessary and appropriate, always with the sound criticism and legal assessment of a magistrate, to incorporate a new figure of dismissal with cause and its aggravating circumstance in the case of blocking or taking over workplaces, obstructing, damaging, or prejudicing in an arbitrary manner the decision-making and actions of other employees and/or third parties who do not intend to join in said action.
Attorney specializing in labor law. President of APREEA
Source: Ambito
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