Right to enhanced occupational stability

Therefore, we would like to analyze and recall the main arguments reiterated by the Constitutional Court in relation to the concept of "Enhanced Occupational Stability", given its implications and obligations, of special observance for the Business Sector:

The difference in the evolution of the jurisprudential concept finds foundation, according to the Court, in the principle of "stability" (CP art 53), which is not exclusive to labor relations, but applies to work in general, as defined by the Constitution; that is, "in all its forms" (CP art 53). It is for this reason that persons in circumstances of manifest weakness are entitled to special protection of their job stability. In this regard, the Court clarified that they are in a situation of manifest weakness, not only those who have had a qualified loss of working capacity in a moderate, severe, or profound degree, but also those who experience a health condition that "prevents or substantially hinders the performance of their work under regular conditions" (Decision T-1040 of 2001).

Therefore, persons in such condition will be subject to special protection based on the principles of solidarity and social integration (CP arts. 1, 43 and 95). The above implies that when a person experiences a relevant health condition, his employees and contractors have the duty to keep him in his job unless there is just cause validated by the Ministry of Labor, without prejudice to the obligation to relocate him, train him and adjust the conditions of his work to the change in his existential conditions.

The foregoing, on the understanding that, in the words of the Court: "once people contract an illness, or present for any cause (...) a medical impairment of their functions, which prevents or substantially hinders them from performing their work under regular conditions, it has been objectively established that they experience a constitutional situation of manifest weakness and are exposed to discrimination".

In this way, such protection, as has been reiterated, does not apply only to dependent labor relationships, but extends to independent service provision contracts as such. Such interpretation of the Court is based on Article 26 of Law 361 of 1997, which establishes that "no person with a disability may be dismissed or his contract terminated because of his disability, unless authorized by the Labor Office". As can be observed, the rule establishes a condition for the termination of the contract of a person with a disability and does not qualify the type of contract to reduce it only to a labor contract, proper to subordinate work.

Consequently, the contracting parties and employers must have, in these cases, an authorization from the corresponding Territorial Directorate of the Ministry of Labor, which certifies the concurrence of a constitutionally justifiable cause for the termination of the relationship.

Therefore, the violation of Enhanced Occupational Stability will imply:

1. The declaration of ineffectiveness of the termination of the contract.

2. The reinstatement under analogous conditions or guaranteeing their relocation, or the renewal of the contract.

III. Compensation of one hundred and eighty (180) days of remuneration as provided in Article 26 of Law 361 of 1997 interpreted in accordance with the Constitution, even in the context of a contractual relationship for the provision of services, whose contractor is a person who does not have a rating of moderate, severe or profound loss of working capacity.

In conclusion, the Unified Ruling of the Constitutional Court mainly implies that whoever contracts a service must be clear that his relations must transcend the principle of utility that is generally valid to observe his contractual acts, his patrimonial relations and the disposition of his economic assets; and that therefore, he must act with solidarity, being then a guarantor and protector of whoever provides the service, in such a way that an affectation in the health of the latter, generates a duty of legal protection.