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SUSPENSION OF INDIVIDUAL EMPLOYMENT CONTRACT EFFECT OF STATE OF EMERGENCY DECREE EXECUTIVE DECREE NUMBER PCM-005-2020
[/vc_column_text][us_separator][vc_column_text]The effect of the pandemic called Covid 19 was an event that affected not only the health, but also the economy of each country. – Each state has a different structure in the legal field, each one elaborates positive law according to the social order that determines them. One of the triggers that drives success in a state and that prevails in each country is the financial state that it has, ordering a state structure capable of carrying out a legal and economic order in the countries. The main indicators of the labor market in Latin America reveal that in the case of Honduras, in 2019 the working-age population totaled 7,360,067, that is, 80% of the total population, while the economically active population totaled 4,220,294, equivalent to 48% of the total population and 57% of the working-age population in Honduras. This makes it significant that a high percentage of our population is salaried, and in one way or another, every citizen is bound by some type of employment contract under Honduran law to earn an income. The COVID-19 trigger was so negative that the country shut down its economy in some sectors (except for the healthcare sector and food distributors, among others), in some cases assigning teleworking, and many companies were forced to close operations. For the purposes of the main idea of the topic, we will define some concepts or terms in general terms before delving into the legal perspective. Let's look at the concept of DETENTION; it is the action of interrupting the development of an action for a period of time or indefinitely. Once the concept is defined, it can be seen that it can have two facets: on the one hand, a temporary facet, and on the other, a facet that can become indefinite. The same thing happens in the legal sphere when we talk about suspension of rights. In the labor sphere, we will take the word suspension as the first facet, and we will view it as a temporary action that will not affect the employee's seniority. The suspension of work can be total or partial, that is, it can affect a percentage of employees or all of them. Article 99 of our Labor Code establishes this, and the same article of the same legal body clarifies that this does not imply their termination of employment, nor does it extinguish their rights and obligations emanating from them, regarding reinstatement and continuity of the contract. That is, once the contract suspension process has been carried out, this does not affect any of the employee's rights. They will continue under the same scheme with which they were hired, that is, the same amount of vacation time, their seniority cannot be affected, which are the most influential rights at the stage of a labor dispute. The suspension may affect all of a company's current contracts or only a part of them. The causes for suspension of the employment contract can only be determined by: 1. – The lack of raw materials or driving force in the negotiation, provided that it is not attributable to the employer; 2. – Force majeure or fortuitous event when it brings about the suspension of work as a necessary, immediate, and direct consequence; 3°- Excess production, taking into account the economic possibilities and the market circumstances of a given company; 4°- The impossibility of operating the company with a reasonable minimum profit; 5°- The lack of funds and the impossibility of obtaining them for the normal continuation of work, if fully proven by the employer; The cause for the case provided for will be numeral two. The procedure must be carried out as follows: The suspension of employment contracts will take effect from the conclusion of the day on which the event that gave rise to it occurred, provided that the verification of the cause on which it is based begins before the Secretariat of Labor and Social Security or before its duly authorized representatives, within three (3) days after the aforementioned, or thirty (30) days before the suspension, when the event that gives rise to it is foreseeable. If the Ministry of Labor and Social Welfare does not authorize the suspension due to the lack of an alleged cause or because it is unjust, it will declare it void, and workers may exercise their rights under the employment contract, labor laws and regulations, and other applicable provisions, subject to the employer's liability. Thirty days' notice of suspension must be given; once the suspension notice has been delivered, the employer must provide a copy to the Ministry of Labor and Social Welfare. The executive branch may dictate emergency measures that, without harming employer interests, result in the alleviation of workers' economic situations. This COVID-19 alert has been the prevailing cause in our country and has primarily affected the private sector for carrying out labor suspensions, which is why a national state of emergency has been declared. The employer must keep track of each employee's file, which must be maintained by the Human Resources department. Each file must contain acknowledgment of receipt of each employee's suspension, which has already been registered with the Labor Secretariat. Once the employee returns to work, the employer must inform the employee of their rights and that their return will be under the contract. The employer must also notify the same department of the return to work of suspended employees. Once the suspension is concluded, the employer must notify the suspended employees through the Labor Inspectorate of their return to work.
By: Haixa Maholy Salgado Valladares
For more information, please email us at hsalgado@lexincorp.com
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