Labor law question

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rubio_higuey

Gold
Feb 7, 2007
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I had a worker who was working for me for about 10 months. In February (the 10th month) we made arrangements under consideration that he could not keep working for me and that he would send a substitute worker (his brother) to work for me instead. The brother (second guy) kept working for me same job hours and money; then in May the first guy said he wanted back to work. I told him that he and his brother would have to work out who would be working, that I really did not care which of the two would be coming to work, as long as one of them was working. It ended up that the brother (second guy) kept working.

Now at the end of June the second guy working for me says he will not be able to work for me anymore because he got a better job. I tell him to tell his brother (first guy) to come back working if he wants. The first guy sends a message that he will not be working for me because it's too little money.

So the second guy stops working in prejudice of my company at the end of June (but I am OK with that because he gave me notice) and the first guy says he will not be working unless I give him more money (which I will not).

Now the first guy (that originally started to work for me and later handed the job over to his younger brother) keeps bugging me about liquidation (cesantia).

This first guy also has this "unique" idea that the Xmas bonus was to be a double the wage (in addition to December wages), which I paid him 3/4 of month's worth of wages as Xmas bonus (he started to work in april, so april-december it's 9 months, 9/12 it's 3/4 of month's wages). So he claims I shorted him on Xmas bonus.

My question is:
DO I ENTER IN RESPONSIBILITY WITH HIM (THE FIRST GUY) (under the labor law) MEANING PAYING CESANTIA (LIQUIDATION) considering the turn of events? (him handing the job over to his brother, later when offered the work back after the brother quit saying he won't be back for work until wage increase, and then neither of the two not showing up for work for almost a month).
 
DR_Guy

DR_Guy

Bronze
Feb 17, 2010
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Your question is probably best answered by an attorney. But generally speaking, after three months any worker is considered an employee under the labor code and has all rights, including liquidation, leave, profit sharing (if applicable to your company), etc. As far as the thirteenth month bonus, it only applies to the actual wages earned during the year and I believe overtime is excluded. So, if the guy earned 12,000 pesos in 9 months, the thirteenth month would be 1000 pesos. You can hire contract workers for 89 days with a written contract, then hire a new guy for 89 days, etc.
 
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rubio_higuey

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Feb 7, 2007
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Yes I know all that. But the point here is the worker found a substitute worker and stopped working, then later after the substitute stopped working he refused to get back to work, then not showing up for work for almost a month. I think there must be an "abandon" provision, interpretation or jurisprudence in the labor law. That's the question here.
 
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Black Dog

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May 29, 2009
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rubio_higuey said:
I had a worker who was working for me for about 10 months. In February (the 10th month) we made arrangements under consideration that he could not keep working for me and that he would send a substitute worker (his brother) to work for me instead.
Click to expand...

That sounds to me like he quit the job so liquidation is not applicable!
 
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DMV123

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Mar 31, 2010
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Did you file any documents with the dep't of labor? IF the employee left the job - willingly - then you need to create a descarga which the employee signs off on. then file with the dep't of labor notifying them of what transpired. The new guy effectively becomes a new employee and I assume you notified the dep't of this development!!!!!

It is in your benefit to do everything legally correct. Register and deregister all employees.

As for contractors for 89 days - be very very careful with that. ALL new employees are covered by the 89 day rule. You can fire at will with no liquidation - exception is pregnancy.

At day 90 the rules get complicated.

A contractor is not a contractor because you decide so. This is covered in the labor code. If it looks like an employee, acts like an employee and barks like an employee - then it is an employee. Regardless of what "contract" you have in writing. A written contract can add to the labor code but NEVER take any protection away from the employee!

Make yourself legal. Follow the rules or better yet put a labor lawyer on retainer! It will save you a lot of grief in the future. The labor code is complicated and convoluted!
 
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