Introduction
In a world as competitive and globalized as the one we live in today, united through the Internet and Information and Communication Technologies, Human Capital being the one that generates the greatest competitive advantage for organizations, it is of vital importance to study of the pact that is made between the worker (human capital) and the employer (organization / company) and their legal or juridical obligations, with great specialty and delimitation, to the Dominican Republic.
Said pact that is freely exercised between the parties, is called in our jurisdiction, by the Labor Code of the Dominican Republic, as a Labor Contract. Said Work Contract may end with Responsibility for both parties or without Responsibility, in this investigation the Termination of the Work Contract with responsibility will be treated with great specialization, among them: Eviction, Dismissal and Resignation
The concepts related to the termination of the contract will be defined and direct observations will be made to the labor code and the jurisprudence that has been issued to the Supreme Court of Justice of the Dominican Republic. At the end there will be a summary of the differences and similarities between Eviction, Dismissal and Resignation.
The methodology used consisted of a bibliographic research, thesis consultation, dictionaries, texts, books and articles in magazines and newspapers. The investigation is justified, due to the importance it provides for the respect and rights of workers and employers.
Topic I. Generalities of labor law in the Dominican Republic
1.1.- Labor Law
The Constitution of the Dominican Republic defines in its article 62 the right to work as “Work is a right, a duty and a social function that is exercised with the protection and assistance of the State. It is an essential purpose of the State to promote decent and remunerated employment. The public powers will promote dialogue and agreement between workers, employers and the State ”1
According to Lupo Hernández Rueda, Labor Law is defined as " The set of legal rules that governs human work." He adds that human, subordinate, productive, free and self-employed work.2
1.2.- Work
As defined by Principle I of our Labor Code “work is a social function, which is exercised with the protection and assistance of the State. It must ensure that labor law standards are subject to its essential purposes, which are human well-being and social justice.3
1.3.- The Labor Courts.
Labor courts (Goico, 2002, page 22), were created by Law No. 16-92 (Labor Code), and basically make up an exceptional jurisdiction, consequently, they can only hear the matters that the law allows. expressly empowers him, which is why the Judges must be very careful and realize the nature of the claim. Its purpose is that it is subjected to weighing, since the division of matters by matter is of public order and has as a goal to improve the administration of justice.4
1.4.- Worker
According to Article 2 of our Labor Code, a worker is defined as “ Any natural person who provides a service, material or intellectual, by virtue of an employment contract ”. 5
1.5- Labor Code
The Fundamental object of the Labor Code, in its principle III defines that the object thereof is to regulate the rights and obligations of employers and workers and provide the means to reconcile their respective interests. Likewise, it enshrines the principle of cooperation between capital and labor as the basis of the national economy.6
1.6.- Work Contract
Article 1101 of the civil code of the Dominican Republic establishes the Contract as “an agreement by virtue of which one or more persons are bound by one or more others, to give, do or not do something”.7
The individual employment contract, as defined by Lupo Hernández Rueda in his work Manual of Labor Law as: "It is presumed between the person who provides a personal service and the one to whom the service is provided" 8
According to Rafael Alburquerque in his work on Labor Law, he defines the Contract of
Work as “the only condition, and at the same time, necessary for a person to acquire the quality of worker or employer, its existence determines the application of the protective norms of labor legislation”.9
1.7.- Classification of the Employment Contract
The Judge of the National District Labor Court, Dr. Rafael Vásquez Goico, classifies the Employment Contract as: Indefinite Contract and Contract of Determined or Limited Duration. 10
Article 25 of the TC, defines The employment contract can be for an indefinite time, for a certain time, or for a specific work or service.
1.7.1.- Indefinite Contract11
Articles 26 and 27 of the TC define that when the works are of a permanent nature, the contract that is formed is for an indefinite period. However, there is nothing to prevent the employer from guaranteeing the worker that he will use his services for a certain period of time. Permanent jobs are those that are intended to satisfy normal, constant and uniform needs of a company.
It is the employment contract par excellence. It therefore constitutes the general rule, because it corresponds to the continuing reality of the provision of work in the vast majority of cases. This fact serves as a guide for the judge to appreciate the nature of the contract in doubtful cases.12
1.7.2.- Contract of Determined or Limited Duration
Contracts of limited duration, are due to the agreed duration, conforms to the nature of the work that makes it only last part of the year, due to the temporary need for the service, to temporarily intensify production or when the work corresponds to accidental circumstances of the company.
Article 31 of the TC defines that the employment contract can only be concluded for a specific work or service when required by the nature of the work. When a worker works successively with the same employer in more than one specific work, it is said that there is an indefinite employment contract between them. Successive work is considered when a worker begins to work, in another work of the same employer, started in a period no longer than two months after the previous one ended. An indefinite-term employment contract is also considered to be that of workers belonging to crews that are interspersed between several works by the same employer.13
1.7.2.1.- For a Certain Time
It is one that is carried out for a certain time between the employer and the worker, and is verified in the cases of: 1st. If it is in accordance with the nature of the service provided by the company. 2nd. If it is intended to temporarily replace a worker in case of leave, vacations or any other temporary impediment and 3rd. If it is in the interests of the worker.14
Article 33 of the TC defines that employment contracts can only be concluded for a certain time in one of these cases:
- If it is in accordance with the nature of the service to be provided; If it is intended to temporarily replace a worker in the event of leave, vacation or any other temporary impediment; If it is in the interests of the worker.
Work contracts concluded for a certain time or for a specific work or service must be drawn up in writing, as established in Article 34 of the TC.
1.7.2.2.- For a Specific Work or Service15
These employment contracts must be drawn up in writing (art. 34 CT) and can only be entered into “when required by the nature of the work” (Art. 31 CT). They generally take place in the construction industry. Workers engaged in the construction of a road, a railway, a bridge, a house, etc. They are linked to the employer by employment contracts for a specific work or services.
1.8. Termination of the Work Contract with Responsibility
The labor code provides for the termination or termination of the employment contract for an indefinite period of time in three different ways, and they are the following: Eviction, Dismissal and Resignation.
Article 69 of the TC defines that the employment contract ends with responsibility for one of the parties:
- For the eviction; For the dismissal of the worker; For the resignation of the worker.
Topic II. Conceptualizations about eviction
According to Rafael Alburquerque, Eviction "It is the act by which one of the parties, by prior notice to the other, and without alleging cause, exercises the right to terminate a contract for an indefinite period (Art. 75 of the CT)" 16
For Lupo Hernández Rueda, the Eviction always carries a period, by means of which one of the parties to the contract for an indefinite period, communicates to the other its decision to terminate it. It is not necessary to invoke a specific cause, and it is a common right to both contracting parties. After this period, the employment contract ends. 17
Eviction, for Dr. Carlos Hernández Contreras, specialist in Labor Law, can be exercised by both the worker and the employer, and no accusation is made to the worker or the company. When the eviction is carried out by the company, people say "they canceled me" or they "liquidated me"; and when the Eviction is exercised by the worker or employee, people say “I resigned” or “I put my resignation”.18
Article 35 of the Labor Code defines Eviction as “the act by which one of the parties, by prior notice to the other and without alleging cause, exercises the right to terminate a contract for an indefinite period. The eviction does not take effect and the indefinite-term contract remains in force, if the employer exercises his right:
- During the time it has guaranteed the worker that he will use his services, in accordance with the provisions of article 2619. While the effects of the employment contract are suspended, if the suspension is caused by an inherent fact of the worker's person. period of the worker's vacation, in the cases provided for in articles 232 and 392.
If the worker evicts an employer who has disbursed funds in order for him (the worker) to acquire technical training or carry out studies that qualify him for his work, within a period equal to twice that used in training or studies, counting at the end of the same, but in no case will it exceed 2 years, your hiring by another employer, in that period. It commits to the first employer the civil liability of the employer and also that of the new employer.
Dr. Rafael Vásquez Goico20, in his research work to opt for the title of Magister at PUCMM, defines his opinion on eviction in relation to pregnant women, in article 232 of the Labor Code as “it has been traditionally interpreted, both by the Ordinary Courts and by the Supreme Court of Justice the Freedom of Work in relation to the aforementioned article 232 of the CT, which ultimately constitutes the text of the law that protects the stability in the employment of pregnant women. "
Topic III. Conceptualizations about dismissal
For Dr. Rafael Alburquerque, Dismissal is the Termination of the Contract by the unilateral will of the employer.21 According to the principle of Causation, the exercise of dismissal must be based on a just cause, this can be defined as "the serious negligent act, practiced by one of the parties, which authorizes the other to terminate the contract, without liability for the complainant.
The dismissal can be given by the following enumerations made in article 88 of the labor code, which dictate:
- For having the worker misled the employer by pretending to have indispensable conditions or knowledge that he does not have, or presenting him with references or personal certificates whose falsehood is later verified; For executing the work in a way that demonstrates his incapacity and inefficiency. This cause ceases to have effect after three months of providing services to the worker; For incurring the worker during his work in lack of probity or honesty, in acts or attempts of violence, insults or bad treatment against the employer or relatives of the latter under his dependence; By committing the worker, against any of his colleagues, any of the acts listed in the previous section, if this alters the order of the place where he works; By committing the worker, off duty,against the employer or relatives who depend on him, or against the heads of the company, some of the acts referred to in ordinal 3o. of this article; For causing the worker, intentionally, material damages, during the performance of the work or due to them, in the buildings, works, machinery, tools, raw materials, products and other objects related to the work; the worker the serious damages, mentioned in the previous ordinal, without intention, but with negligence or recklessness of such a nature that they are the cause of the damage; By committing the worker dishonest acts in the workshop, establishment or workplace; By revealing the worker manufacturing secrets or disclosing confidential matters to the detriment of the company; By compromising the worker,due to recklessness or inexcusable carelessness, the safety of the workshop, office or other center of the company or of people who are there; Due to the absence of the worker from work for two consecutive days or two days in the same month without permission from the employer or who represents him, or without notifying the just cause he had for it within the term prescribed by article 5822; Due to the absence, without notification of the just cause, of the worker who is in charge of any task or machine whose inactivity or stoppage necessarily implies a disturbance for the company; For leaving the worker during working hours without permission from the employer or whoever represents him and without having previously expressed to said employer or his representative, the justified cause he may have to leave work;For disobeying the worker to the employer or his representatives, provided that it is the contracted service; For refusing the worker to adopt preventive measures or to follow the procedures indicated by law, the competent authorities or the employers, to avoid accidents or illnesses; Workers violate any of the prohibitions provided in ordinals 1, 2, 5 and 6. of article 45; 23 For violating the worker any of the prohibitions provided in the ordinal 3rd. and 4th., Article 45 after the Department of Labor or the local authority that exercises its functions has admonished him for the same offense at the request of the employer; Because the worker has been sentenced to a custodial sentence by irrevocable sentence;Due to lack of dedication to the tasks for which they have been hired or due to any other serious breach of the obligations that the contract imposes on the worker.
For Lupo Hernández Rueda, expressed in his work on Dismissal and Jurisprudences, dismissal is the right recognized by the employer to terminate the contract when the worker has incurred a serious and inexcusable fault.24
When the employer exercises the right to dismissal, it must be submitted to the labor authorities, indicating the cause, within the subsequent 48 hours. Otherwise, the dismissal is contested without justification. In the opinion of our Court of Cassation, this is an irrefutable presumption, which does not admit evidence to the contrary.
Dismissal takes place when the worker becomes aware of the employer's decision to terminate the contract; when he learns of the employer's exercise of the right to dismissal. At that precise moment, a legal presumption is generated, until proven otherwise, that said dismissal is unfair.
Dismissal in general means depriving of occupation, employment, activity or work 25. Strict Sensu, is the right recognized to the employer to terminate the contract when the worker has incurred an inexcusable Serious Fault.
Topic IV. Legal consequences of dismissal.26
4.1.- The test regime.
4.1.1.- The proof of the resolution. It is up to the Worker to prove the fact of dismissal, it is also the responsibility of the Worker to prove his resignation.
4.1.2.- Proof of just cause. It is up to the Employer to prove the just cause for the dismissal. The worker has to prove the just cause of his resignation.
4.1.3.- The Abandonment approval. It is the termination of the contract by the unilateral will of the worker, in the event that the worker sued for dismissal and the employer denies the fact and maintains that he has left his job.
4.2.- Responsibility for the resolution. 27
4.2.1.- General Rules. If the employer proves just cause, the dismissal will be declared justified, so the employment contract is terminated without any liability.
4.2.2- Rate compensation. When the employment contract is terminated due to unjustified dismissal or justified resignation, the employer undertakes his responsibility, which obliges him to compensate the damage caused by the first of the contractual relationship.
4.2.3- Maternity compensation. Three situations must be distinguished and they are:
to. If the employer does not submit its prior decision to the administrative labor authorities, the dismissal of the pregnant woman or within the six months following the date of delivery, will be deemed unjustified, forcing the principal to pay maternity compensation. equivalent to 5 months of ordinary salary (Art. 233 in fine.)
b. If, after obtaining the administrative authorization, and before the woman's demand, the labor judge declares the dismissal unjustified, the worker will only receive the compensation of a common worker.
c. If the administrative authorization is denied, the dismissal is exercised, it will be declared void, consequently the worker will receive, the wages due and their accessories, until the day that the final judgment intervenes, as well as the legal interests of the amount owed, by title of damages.
4.3.- Payment of compensation.
4.3.1- The action in payment. The action in payment of the severance pay or resignation, prescribes in a term of two months (Art. 702. Ord. 1), this term begins to run one day after the termination of the employment contract (Art. 704).
4.3.2- The judicial consequences. When the plaintiff asks the labor court to pay compensation for dismissal or resignation, the labor judge must comply with the rights recognized by law in favor of the workers.
4.3.3- Payment guarantees. Compensation for unjustified dismissal or unjustified resignation are not subject to the payment of income tax, nor are they liable to encumbrance, embargo, compensation, transfer or sale (Art. 95, penultimate paragraph).
Topic V. Conceptualizations about resignation
Resignation (Albuquerque, Volume II. 1997), is the termination of the employment contract by the unilateral will of the worker. 28
In Article 69 of the labor code, it defines in its ordinal 3 that the contract can terminate with responsibility for any of the parties by resignation.
Article 96 of the TC defines Resignation as the termination of the employment contract by the unilateral will of the worker.
Eviction - Dismissal
It must be expressly and in writing: It is expressed in Verbal or Written Form or tacitly, inferred from the factual circumstances that reveal the intention to terminate the employment contract
It is a right attributed to both parties (Employer and Worker): It is a right that corresponds to the employer (Unilateral Will of the employer).
It can only be exercised to terminate an employment contract for an indefinite period: It can be exercised and terminate any type of employment contract.
It proceeds at any time, only if the intention is to terminate the contract: It expires 15 days from the moment in which the failure is known.
The exercise of eviction by the employer, obliges him to pay the severance pay and the wages of the notice if he omits the period established by law. If justified, it exempts the employer from all responsibility.
When it is exercised, it does not terminate the contractual relationship immediately, it informs the other party of the decision of its counterpart to terminate the employment contract, as it generates a period called advance notice, within which the contract subsists, at whose expiration it will occur their breakup. It terminates the contractual relationship as soon as it occurs.
Topic VII. Differences between eviction and resignation
Eviction - Resignation
It must be expressly and in writing: It is expressed in Verbal or Written Form or tacitly, inferred from the factual circumstances that reveal the intention to terminate the employment contract.
It is a right attributed to both parties (Employer and Worker): It is a right that corresponds to the worker (Unilateral Will of the worker).
It can only be exercised to terminate an employment contract for an indefinite period: It can be exercised and terminate any type of employment contract.
It proceeds at any time, only if the intention is to terminate the contract: It expires 15 days from the moment in which the failure is known.
It is an absolute right, it does not have to establish or justify cause: It must be based on a just cause, specifically established in the Law in Article 97 of the CT.
When it is exercised, it does not end the contractual relationship immediately, it informs the other party of the decision of its counterpart to terminate the employment contract, since it generates a period called advance notice, within which the contract subsists, at whose expiration it will occur its break: It terminates the contractual relationship as soon as it occurs.
Topic VIII. Differences between dismissal and resignation33
Dismissal - Resignation
It is an act of unilateral will of the employer: It is the termination of the contract by the unilaterality of the worker, according to article 85 of the CT.
The judge cannot put the burden of proof for wrongful termination in favor of the employer. The judge cannot put the burden of the evidence for unjustified dismissal in favor of the worker, as the court of cassation has judged.
Topic IX. Relations between eviction, dismissal and resignation
They are governed by the provisions of the Labor Code of the Dominican Republic
It is a cause for termination of the indefinite employment contract with responsibility
As soon as the right is exercised, it must be communicated to the administrative labor authorities within a period of no more than 48 hours.
The actions for the claim of the right and benefits prescribe in themselves after 2 months according to article 702 of the CT.
Topic X. Dominican labor jurisprudence34
10.1.- Case Law for Dropouts
1. Abandonment: Arts. 16, 88.13, 494 and 530 of the CT
1) Letter from SET saying that there was dismissal does not rule out abandonment reported by the employer
2) Allegation of abandonment of the employer does not make him an actor of the proof of that fact
3) Active role of labor judge obliges him to order measures if it is not established. The sentence is based on the communication directed by the referred SET department to the worker, denouncing the termination of the employment contract due to dismissal; that this document cannot serve as a means of proof of this fact, especially since it did not come from the employer and was in contradiction with his statements, in the preliminary conciliation, that he ratified the terms of his communication to the Department of Labor of the February 23, 1979, on the abandonment of work by the worker, and the denial in the course of the litigation of having fired him; that the employer's refusal to have dismissed the plaintiff worker, alleging in his defense that he had abandoned his job,it did not make him an actor with the subsequent obligation to establish proof of the alleged fact; that consequently, the burden of the test, under such conditions, was not displaced nor could it be reversed; that the judge in this matter has an active role, and should have ordered, if it was not sufficiently built, some instructional measure, and not limit himself to considering not only the dismissal, but that it was unjustified, that when solving the case in this way, he violated the rules of the test, and with it Art. 1315 of the CC, for which the contested sentence must be married. (SCJ 24 Jun. 1991, BJ 967, p. 693).if it was not sufficiently built, some instructional measure, and not limited to taking for granted not only the dismissal, but that it was unjustified, that by solving the case in this way, violated the rules of evidence, and with it the Art. 1315 of the CC, for which the contested sentence must be married. (SCJ 24 Jun. 1991, BJ 967, p. 693).if it was not sufficiently built, some instructional measure, and not limited to taking for granted not only the dismissal, but that it was unjustified, that by solving the case in this way, violated the rules of evidence, and with it the Art. 1315 of the CC, for which the contested sentence must be married. (SCJ 24 Jun. 1991, BJ 967, p. 693).
2. Abandonment: Art. 88.13 of CT35
The employer who alleges abandonment must prove it. It is up to the employer who alleges that the worker abandoned his work, submit the proof of the facts on which he bases his statement. Pursuant to Art. 1315 of the CC, anyone who alleges a fact in his favor in justice must prove it. (SCJ 21 Nov. 1966, BJ 672, Page 2289)
3. Abandonment of work: Art. 88.13 of the TC Abandonment of work of Art. 88.13 of the TC must be outside the workplace
The act placed in charge of the appellant does not constitute the "cause" provided by Art. 78, paragraph 13, of the TC of "leaving the worker during working hours without permission from the employer or whoever presents it…"; that, in effect, although the act committed by the current appellant implied an abandonment of his work, that act is not provided for by said legal text, which means that the exit must be outside the premises where the worker habitually performs his work. (SCJ 24 Aug. 1954, BJ 529, Page 1682)
4. Abandonment of work: Art. 88.13 of the TC It is not enough to be sick with a medical certificate. You must have permission from the employer
At no time did the intimidating person demonstrate that he was abandoning his work and leaving with permission from his employer; that all it has tried to prove was the fact that he was under medical treatment, presenting a certificate which would not have been decisive either for the simple reason that it only refers to the fact that the appellant was receiving medical treatment, This does not show that he obtained, prior to his departure, the prior permission of his employer, necessary, in accordance with the text of the law cited above, even though he was ill, to abandon his tasks during working hours. (SCJ 23 Mar. 1954, BJ 524, Page 550)
5. Abandonment and dismissal: Art. 88.13 and 93 of the TC Employer does not have to communicate abandonment if it is not used as grounds for dismissal
The contested judgment makes the mistake of converting the worker's abandonment into unjustified dismissal, due to the failure to notify the labor authorities of that abandonment. Labor legislation does not oblige the employer to communicate the abandonment of the worker, except when the employer uses such abandonment as a cause for dismissal, in which case it must communicate the dismissal and abandonment as cause. (SCJ 12 Sep. 1997, BJ 1042, pp. 212-216)
10.2-. Jurisprudences for Eviction.
1. Tacit eviction and abandonment: Arts. 9, 75 and 88.13 of the CT
1) Providing services to two employers at the same time does not imply termination of the first contract
2) Abandonment of work followed by new employment is equivalent to a tacit eviction
While it is true that the mere fact that a worker provides his personal services to more than one employer does not determine the termination of the first employment contract, it is also true that when a worker at the same time, who stops attending his work, You start a new work relationship with another company, at the same time that you provided your services to the previous one, you exercise the right to eviction, even if you have not previously communicated it; In this regard, the Court a-quo, when weighing the fixed staff payroll of the companies HJHM-UCE and HSBR and the certificate issued to Mr. AGS, by Dr. ES., IDSS doctor, considered established that the employment contract ended by the unilateral will of the worker with the second hotel (3rd Chamber SCJ Aug. 7, 2002, BJ 1101, Page 518)
2. Eviction and dismissal: Arts. 75 and 87 of the CT If the employer accepts the resignation of the worker, he is not responsible for termination
The acquiescence given by an employer to the resignation presented by the worker does not make him responsible for the termination of the employment contract, so if the worker understood that he had been fired, he had to prove that fact, regardless of whether there was a letter stating his willingness to end the contractual relationship that bound him to the defendant. (SCJ 27 Jan. 2000, BJ 1070, Pages 73-80)
3. Eviction and transfer of shares: Arts. 16, 75 and 542 of the TC Employee transfers shares and claims to be separated from the company does not evict (Case in which the judge must examine the attitude of the parties when determining the breach of the contract) 37
In the letter in which the appellant expresses to the respondent that he is separated from the company, he mentions the transfer by sale of his shares in SA, without referring to his status as a company employee, which made it necessary for the The court established what the attitude of the parties had been in relation to the existence of the employment contract, in the sense of determining whether it continued to be executed and, if not, the reason why it did not occur. The mere fact that a worker, who in addition to this condition, is a shareholder of the company where he works, transfers his shares does not end the employment contract, a termination that cannot be presumed, above all, as when in kind,the employer kept the worker registered as such in the company's permanent staff payroll without reporting his departure to the Department of Labor. (SCJ 21 Jul. 1999, BJ 1064, pp. 777-783)
4. Eviction: Art. 75 of the CT Letter of resignation where the worker requests payment of benefits does not oblige the employer.
The fact that in the letter addressed by the worker to the company, the company was requested to pay the employment benefits, it did not oblige it to make said payment, since this request was not made as a condition for the termination of the employment contract. work, and according to the appreciation of the Court a-quo, the plaintiff did not prove that the defendant agreed to please it. (SCJ 27 Jan. 2000, BJ 1070, pp. 73-80).
5. Eviction and dismissal: Arts. 75 and 87 of the CT If the employer accepts the resignation of the worker, he is not responsible for termination.
The acquiescence given by an employer to the resignation presented by the worker does not make him responsible for the termination of the employment contract, so if the worker understood that he had been fired, he had to prove that fact, regardless of whether there was a letter stating his willingness to end the contractual relationship that bound him to the defendant. (SCJ 27 Jan. 2000, BJ 1070, Pages 73-80)
10.3- Jurisprudences for Dismissal.
1. Dismissal and suspension: Arts. 51.5 and 88.18 of the CT
Case of dismissal preceded by suspension of the contract due to prison
In order for the suspension referred to in Art. 33 to become a cause for termination of the employment contract, under the protection of paragraph k, of Art. 36, it is essential to intervene a sentence convicting prison. (SCJ Apr 27, 1951, BJ 489, Pages 455-459)
2.- Dismissal: Arts. 88.13 and 575 of the CT "A confession of part of the release of evidence": Admitted offense that justifies the dismissal
Having left her job without being authorized by the employer, the respondent incurred the offense provided for in the cited legal text; that the proof of the action of the respondent results from her own statements, as stated in the contested judgment; that the Chamber a-qua when declaring the unjustified dismissal, violated the provisions of the aforementioned article, for which said judgment must be married without having to examine the other means of appeal. (SCJ 9 Dec. 1994, BJ 1009, Page 525)
3-. Dismissal: Arts. 91 and 94 of the CT No communication of the dismissal limits proof of dismissal, but that of other aspects in Litis
As the payment of a salary supplement, based on the fact that what was paid was less than the rate, is independent of the question of dismissal, the judge must give the employer the opportunity to prove that this claim is unfounded, even when it is impeded to prove the justification for the dismissal. (BJ 742, p. 2203)
4-. Dismissal: Art. 94 of the CT Employer that neither alleges nor recognizes dismissal invoked by worker cannot be condemned
In this respect, the appellant company did not claim that it had justifiably dismissed the plaintiff worker, so it was not required to prove just cause that it had not invoked; that since the contested judgment states that the company was ordered to pay benefits on the grounds of "not having proven the just cause of dismissal," it is clear that said judgment has incurred a denaturalization of the facts of the cause, for which she must be married. (SCJ 17 Dec 1965, BJ 661, Page 1120)
5-. Dismissal: Art. 94 of the CT SCJ can control events that constitute just cause for dismissal
The Supreme Court of Justice in exercise of its power of control must terminate if the facts verified by the judges of the fund constitute a just cause for the dismissal of the worker in the terms of the law. (SCJ Apr 27, 1951, BJ 489, Page 478)
6-. Dismissal: Arts. 16 and 94 of the CT If the worker is limited to claiming dismissal and the employer to deny it, the claim must be rejected
When in a judicial instance the defendant merely denies the existence of the fact of dismissal, which serves as the basis for the defendant, it is not his responsibility to make any proof, but it is up to the plaintiff to demonstrate by legal means the truth of the fact alleged by him; that, in kind, the examination of the contested ruling and that of the documents to which it refers, show that while the worker claimed that he had been unjustifiably dismissed by the Company, and, on that basis, demanded payment of benefits, the defendant maintained that it did not fire the worker. That, under the conditions that have just been analyzed, by adopting reasons in the contested ruling according to which the evidence corresponded to the defendant, the violation of Article 1315 of the CC was incurred,since in order to demand proof of the just cause of the dismissal, it is necessary to first demonstrate the fact of the dismissal, proof that corresponded to the plaintiff; that, therefore, the contested judgment must be married (SCJ 6 Jun. 1960, BJ 599, Page 1157)
10.4.- Jurisprudences by Resignation.
one-. Dismissal and resignation: Arts. 87 and 96 of the CT Dismissal and resignation are different legal figures
Although the effects are the same, the causes that motivate the resignation or unjustified dismissal of a worker, are, in essence different, since they lie in two conflicting wills, with opposite interests, so great care must be taken not to confuse the species, since justified resignation does not necessarily imply an unjustified dismissal, taking into account that the cases of dismissal and those of resignation do not usually rest on the same facts. (SCJ 16 Mar. 1955, BJ 536, Page 507; SCJ 11 Nov. 1955, BJ 544, Page 2402)
two-. Dismissal and resignation: Arts. 87 and 96 of the CT If the worker claims justified resignation, the employer does not have the burden of proof
Dismissal and resignation are two different legal figures, with their own legal scope and with rules peculiar to their exercise; that when these rules are reversed, the texts that establish them are violated, and when those texts refer to the proof to be provided, in each case, and who is responsible for said proof, the general principle established by Art. 1315 is violated of the CT, since the Judge cannot put the burden of proof, for unjustified dismissal, in charge of the employer when the worker alleges just cause to terminate his employment contract. (SCJ 16 Mar. 1995, BJ 536, Page 507; SCJ 11 Nov. 1955, BJ 544, Page 2402)
3-. Resignation. Evidence: Art. 96 of the CT In principle, the worker must prove lack of the employer that justifies resignation
In terms of employment contracts, it is mandatory to recognize, by applying the same principles that govern the test, that when a worker terminates his contract, as in the present case, alleging a fault of the employer, and claiming benefits and compensation from him Instead, it is the worker who is responsible for proving said fault and not the employer. (SCJ 23 Jun. 1948, BJ 455, pp. 1350-1357)
4-. Resignation: Art. 97 of the CT (Case of employer upon return of leave prevents work and does not pay salary)
In kind, the A-qua Chamber admitted that the resignation presented by the worker was justified by the fact that his employer had restricted his rights by preventing him from continuing in the normal exercise of his work when he returned from a job. trip for which you had been licensed; According to the criterion of the A-qua Chamber, the employer's words that "he could not pay two accountants, what was Don Armando doing there?" meant that he should continue on leave without pay even after the term of the leave that he had been granted to make a trip, a fact that not only restricted the worker's right to continue working, but also prevented him from receiving his salary.the Chamber a-qua made a correct assessment of the facts and attributed to them their true scope and meaning as justifying cause for the resignation presented by the worker, and made a correct application of Arts. 43 and 86 of the CT. (SCJ May 18, 1962, BJ 622, pp. 692-699)
5-. Resignation and unpaid working days: Art. 97.2 of the TC
If worker proves days worked, employer must prove payment of days claimed
The Court a-quo found that the defendants demonstrated the just cause of the resignation by establishing, through witnesses who deserved credit, that they worked the days whose wages they claimed and that they were entitled to the payment of the Easter royalty, which imposed to the appellant the duty to prove that it had been released from this obligation, in accordance with the provisions of article 1315 of the Civil Code. (SCJ 21 Jun. 2000, BJ 1075, pp. 25-36)
6-. Resignation: PF VII and Art. 97 of the TC Inequality of treatment empowers the worker to resign
When the employer tries to force the worker to carry out a greater or stronger or more careful task than the one he usually performs, for a lower wage than the company normally pays other workers for the same task, the worker acts in good law and does not violate his employment contract, if he refuses to perform said task without being agreed on the salary corresponding to it, since such a situation, in addition to harming him economically, places him in a depressing position, receiving unequal treatment from that of his fellow workers; that such attitude of the worker, based on the foregoing reasons, does not empower the employer to fire him and does authorize the worker to submit his resignation, in accordance with the provisions of Article 86 of the CT, especially in its 8th section. (SCJ 23 Feb. 1955, BJ 535, p. 271).
Conclusions and recommendations
By way of conclusion, we have the individual work contract, as defined by Lupo Hernández Rueda in his work Manual of Labor Law as: “It is presumed between the person who provides a personal service and the one to whom the service is provided” 36
Article 25 of the TC, defines The employment contract can be for an indefinite time, for a certain time, or for a specific work or service. Article 31 of the TC defines that the employment contract can only be entered into for a specific work or service when required by the nature of the work. Article 69 of the TC defines that the employment contract ends with responsibility for one of the parties:
- For the eviction; For the dismissal of the worker; For the resignation of the worker.
According to Rafael Alburquerque, Eviction " It is the act by which one of the parties, by prior notice to the other, and without alleging cause, exercises the right to terminate a contract for an indefinite period (Art. 75 of the CT)" 37
For Lupo Hernández Rueda, expressed in his work on Dismissal and Jurisprudences, dismissal is the right recognized by the employer to terminate the contract when the worker has incurred a serious and inexcusable fault.38
Resignation (Albuquerque, Volume II. 1997), is the termination of the employment contract by the unilateral will of the worker.
Bibliography
1. Acosta. Juan Pablo. Civil Code and Complementary Legislation. Updated to date includes law 189-01. Editor Dalis. Thirteenth Edition. Mocha. Dominican Republic. 2007.
2. National Review Assembly. New Constitution of the Dominican Republic. (Proclaimed January 26, 2010). Published in Official Gazette No. 10561. Editorial La Ley. First Edition. Santo Domingo. Dominican Republic. 2001.
3. Albuquerque. Rafael F. Labor Law. Volume I. Introduction The subjects of Labor Law. Editora Lozano. CXA 1st. Edition. Santo Domingo. Dominican Republic. nineteen ninety five.
4. Albuquerque. Rafael F. Labor Law. Volume II. Introduction The subjects of Labor Law. Editora Lozano. CXA 1st. Edition. Santo Domingo. Dominican Republic. nineteen ninety five.
5. Garcia. Dr. Carlos. Labor Code and Regulations of the Dominican Republic. Law 16-92 and Decree 258-93. Editor Dalis. Sixth edition. Mocha. Dominican Republic. 2005.
6. Goico Vasquez. Rafael. Chair given at the Pontificia Universidad Católica Madre y Maestra. Master in Strategic Management of Human Resources. Tuesday June 1, 2010. Santo Domingo. Dominican Republic.
7. G. Cabanellas. Usual Law Dictionary. Volume I. Page 690. Edition of 1953. Cited by Hernández Rueda, El Despido. Op. Cit.
8. Hernández Rueda. Lupo. Labor Law Manual. Editor Dalis. Ninth edition. Mocha. Dominican Republic. 2004.
9. Hernández Contreras. Dr. Carlos. Today's Newspaper Labor Office. Santo Domingo. Dominican Republic. Tuesday February 19, 2008. No. 2. Specialty Column in Labor Law.
10. Hernández Rueda. Dr. Lupo. Dismissal and Jurisprudences. Editor Dalis. Mocha. Dominican Republic. 1973.
11. Hernández Contreras. Charles. Labor Jurisprudence during the XXI Century and Glossaries of topics to search in the Labor Code. Pontificia Universidad Católica Madre y Maestra (PUCMM). Santo Domingo. Dominican Republic. 2009.
12. Rueda Hernández. Lupo. Labor Law Manual. Editor Dalis. Ninth edition. Mocha. Dominican Republic. 2004.
13. Vasquez Goico. Dr. Rafael. Labor Procedure Seminar. National School of the Judiciary. Santo Domingo. Dominican Republic. 2002.
14. Vasquez Goico. Dr. Rafael. The Implications of the right to freedom of work with respect to the special protection relative to pregnant women and union leaders in Dominican legislation. Pontificia Universidad Católica Madre y Maestra. Santiago. Dominican Republic. 2009.
Footnotes:
1. National Review Assembly. New Constitution of the Dominican Republic. (Proclaimed January 26, 2010). Published in Official Gazette No. 10561. Editorial La Ley. First Edition. Santo Domingo. Dominican Republic. 2001. Page 27.
2. Rueda Hernández. Lupo. Labor Law Manual. Editor Dalis. Ninth edition. Mocha. Dominican Republic. 2004. Page 113.
3. Garcia. Dr. Carlos. Labor Code and Regulations of the Dominican Republic. Law 16-92 and Decree 258-93. Editor Dalis. Sixth edition. Mocha. Dominican Republic. 2005. Page 33.
4. Vasquez Goico. Dr. Rafael. Labor Procedure Seminar. National School of the Judiciary. Santo Domingo. Dominican Republic. 2002. Page 22.
5. Ibid. Page 36.
6. García, Óp. Cit., Page 13.
7. Acosta. Juan Pablo. Civil Code and Complementary Legislation. Updated to date includes law 189-01. Editor Dalis. Thirteenth Edition. Mocha. Dominican Republic. 2007. Page 132.
8. Hernández Rueda. Lupo. Labor Law Manual. Editor Dalis. Ninth edition. Mocha. Dominican Republic. 2004. Page 113.
9. Albuquerque. Rafael F. Labor Law. Volume I. Introduction The subjects of Labor Law. Editora Lozano. CXA 1st. Edition. Santo Domingo. Dominican Republic. 1995. Page 149.
10. Goico Vasquez. Rafael. Chair given at the Pontificia Universidad Católica Madre y Maestra. Master in Strategic Management of Human Resources. Tuesday June 1, 2010. Santo Domingo. Dominican Republic.
11. CT. OP. Cit. Page 19.
12. Hernández Rueda, Óp. Cit., Page 145.
13. CT. OP. Cit. Art. 31.
14. Article 33 of the Labor Code of the Dominican Republic.
15. Hernández Rueda, Óp. Cit., Page 147.
16. Albuquerque. Rafael F. Labor Law. Volume II. Introduction The subjects of Labor Law. Editora Lozano. CXA 1st. Edition. Santo Domingo. Dominican Republic. 1995. Page 123.
17. Hernández Rueda. Op. Cit. Page 317.
18. Hernández Contreras. Dr. Carlos. Today's Newspaper Labor Office. Santo Domingo. Dominican Republic. Tuesday February 19, 2008. No. 2. Specialty Column in Labor Law.
19. Article 26 Employment Contract. When the works are of a permanent nature, the contract that is formed is pro tempo indefinite. However, there is nothing to prevent the employer from guaranteeing the worker to use its services for a certain period of time.
20. Vasquez Goico. Dr. Rafael. The Implications of the right to freedom of work with respect to the special protection relative to pregnant women and union leaders in Dominican legislation. Pontificia Universidad Católica Madre y Maestra. Santiago. Dominican Republic. 2009. Page 31.
21. Albuquerque. Volume II. Op. Cit. Page 164.
22. Article 58 of the CT.- It is the worker's obligation to notify the employer of the cause that prevents him from attending his work within twenty-four hours of the event that justifies the suspension of the effects of the contract.
23. Article 45 of the TC.- It is prohibited for workers:
- Reporting to work or working in a drunken state or in any other analogous condition Carrying weapons of any kind during working hours, except for the exceptions established by law for certain workers Making collections in the place where they provide services, during hours of this Use the tools and tools provided by the employer in work other than the one for which they are intended, or use the tools and tools of the employer without their authorization; Extract from the factory, workshop or establishment tools of the job, raw material or Elaborate, without the employer's permission; Doing any kind of religious or political propaganda while working.
24. Hernández Rueda. Dr. Lupo. Dismissal and Jurisprudences. Editor Dalis. Mocha. Dominican Republic. 1973. Page 11.
25. G. Cabanellas. Usual Law Dictionary. Volume I. Page 690. Edition of 1953. Cited by Hernández Rueda, El Despido. Op. Cit. Page 15.
26. Albuquerque, Volume II. Op. Cit. Page 216.
27. Albuquerque, Volume II. Op. Cit. Page 223.
28. Albuquerque. Volume II. Op. Cit. Page 164.
29. CT, Op. Cit. Page 55.
30. CT. Op. Cit. Page 56.
31 Article 47 of the TC.- It is prohibited for employers:
- Demand or accept money from workers as a bonus to be admitted to work or for any other reason related to its conditions;
- Force workers to buy their consumer goods in a store or a specific place; 3. Make collections and subscriptions in the work centers;
- Influence to restrict the right of workers to join or not join a union or to withdraw from the one to which they belong or to remain in it;
- Exert pressure on workers to vote for a certain candidacy in the election of officials or representatives of a union;
- Influence the political actions or religious beliefs of workers; 7. Appropriating or retaining, by their own will, the tools or objects of the worker, as compensation, guarantee or compensation;
- Show up at the factory, workshop or establishment in a drunken state or in any other analogous condition.
- Take actions against the worker that may be considered sexual harassment, or support or not intervene in the event that their representatives do so.
- Execute any act that restricts the rights that the worker has under the law.
32. Article 100 of the Labor Code.
33. Hernández Rueda. Dismissal and Jurisprudences. Op. Cit. Pages 126-127.
34. Hernández Contreras. Charles. Labor Jurisprudence during the XXI Century and Glossaries of topics to search in the Labor Code. Pontificia Universidad Católica Madre y Maestra (PUCMM). Santo Domingo. Dominican Republic. 2009.
35. Hernández Contreras, Dominican Jurisprudence. Op. Cit. Page 110.
36. Hernández Rueda. Lupo. Labor Law Manual. Editor Dalis. Ninth edition. Mocha. Dominican Republic. 2004. Page 113.
37. Albuquerque. Rafael F. Labor Law. Volume II. Introduction The subjects of Labor Law. Editora Lozano. CXA 1st. Edition. Santo Domingo. Dominican Republic. 1995. Page 123.
38. Hernández Rueda. Dr. Lupo. Dismissal and Jurisprudences. Editor Dalis. Mocha. Dominican Republic. 1973. Page 11.
