MinTrabajo guidelines for the dismissal of workers with disabilities

From what is set forth in the aforementioned document, it is worth highlighting, in the first place, the normative and jurisprudential recount regarding the rights that have been recognized in labor matters for this type of workers, making special reference to Ruling T-041 of 2019 of the Constitutional Court. In this regard, it is pertinent to highlight the following aspects:

1) Subjects in a situation of manifest weakness due to health reasons: it is considered that the worker has the right to reinforced labor stability due to health reasons if: (i) can be classified as a person with a disability, (ii) with physical, psychological or sensory impairment to a relevant degree, and (iii) in general all those who (a) have a serious affectation in their health; (b) that circumstance 'prevents or substantially hinders them from performing their work under regular conditions', and (c) it is feared that, in those particular conditions, they may be discriminated against by that fact alone.

2) Special protection to workers with reinforced labor stability: The following legal rules have been defined in case law: (i) under no circumstances may disability hinder the employment of a person, unless an insurmountable incompatibility is demonstrated in the position to be performed; (ii) no individual who is in a state of disability may be removed from the service by reason of his limitation, and (iii) in any case, whoever is dismissed without the authorization of the labor inspector shall be entitled to compensation equivalent to 180 days' salary, without prejudice to other benefits and compensation to which he may be entitled.

Now, with regard to the institutional guidelines set forth by the Ministry of Labor for the acceptance or denial of the request for authorization of the dismissal of disabled workers or workers in a state of manifest weakness, in charge of the Labor Inspectors, it is considered relevant to take into account the following three (3) scenarios:

a. When the employer requests the termination of the relationship and states that there is just cause for dismissal. In these cases, the Labor Inspector will have the duty to verify: (i) that the employer has granted the employee the opportunity to dispute the evidence and the reasons for which the authorization for dismissal is requested; (ii) that the immediacy and reasonableness between the time of occurrence or knowledge of the facts giving rise to the just cause for dismissal and the decision to request the authorization before the Ministry of Labor is complied with; (iii) that the employer clearly states in the request the just cause for dismissal, which must correspond to those indicated in the Substantive Labor Code; (iv) that the employer, prior to the request, has exhausted the procedure established in the collective bargaining agreement, Internal Labor Regulations or in the employment contract; and (v) if the cause corresponds to the low performance of the worker, that the employer demonstrates the implementation of reasonable adjustments in the job (relocation, medical recommendations, etc.). ).

Once compliance with the above is evidenced by the administrative authority, the Labor Inspector may issue the authorization with the proviso that the granting of the permit does not constitute a declaration of rights, nor the validation or ratification of the occurrence of the facts of the just cause invoked by the employer.

b. When the employer requests the termination of the relationship and states that there is an objective cause. The Labor Inspector must verify in these cases: (i) that the employer duly supports the objective cause invoked; (ii) that the employer has accredited the completion of the rehabilitation process, when the cause corresponds to the expiration of the term or termination of the contracted work or labor, and the worker has acquired the disability during the term of the employment relationship or is in a state of manifest weakness; and, (iii) if both just causes and objective causes are invoked in the request, he must also take into account the aforementioned in item A.

c. When the disability or health situation of the worker is incompatible and insurmountable with the position he/she performs. For these cases, the Labor Inspector must verify, among others, the following aspects: (i) the implementation, within the company, of the Social Security and Occupational Health System; (ii) that the employer has complied with the medical recommendations prescribed in favor of the worker; (iii) that the employer presents, in a motivated manner, the substantive reasons that demonstrate how the activities and functions designated to the worker are incompatible and insurmountable in the corresponding position or another existing position in the company, having previously complied with the process of rehabilitation and reincorporation.

In these cases, if the Labor Inspector finds that the employer has complied with the stages of rehabilitation, reinstatement, readaptation and/or relocation, he may authorize the termination of the employment contract.

Regarding the terms for issuing the authorization or denying the request, providing the documents required by the administrative authority, or filing the corresponding appeals against the decisions, the same may be consulted in more detail in the aforementioned document.

Finally, it is important to point out that the employers in these events, in addition to complying with the guidelines set forth by the Ministry of Labor, must take into account that the work of the Labor Inspector is limited to verify, verify and analyze if the dismissal authorization is supported and adjusted to the regulatory assumptions, but may not qualify or declare rights, which is the competence of the Labor Judge. Likewise, it must be specified that the permission granted by the Labor Inspector for the dismissal of a worker constitutes a legal presumption of the existence of a fair dismissal, which, consequently, may be disproved before the corresponding judge.