Indirect Dismissal

Wolfenson Lawyers provides legal advice and accompaniment to its clients in the event of opting for a self-dismissal.

Just as the labor code has contemplated a whole mechanism for the employer to terminate the employment contract, the reverse situation has also been considered, in which it is the worker who for some reason causes the termination of the contract, the above given that the employment contract is essentially bilateral and that, for the same reason, it generates reciprocal obligations for both, which, when violated, leads to its termination.

Our Firm provides due legal guidance, advising our clients on self-dismissal.

Here is a legal guide to give you general guidance on self-dismissal:

What is self-dismissal or indirect dismissal?

It is a legal figure enshrined in article 171 of the Labor Code , used by the worker to terminate his employment contract and operates as follows: The Law allows the worker to self-dismiss , which is the end of the employment relationship Unilaterally decided by the worker, motivated by the breach of the employer who incurs any of the causes of termination of the employment contract that are attributable to him, making it impossible for him to continue to provide services derived from that contract normally.

Why does this figure exist?

It arises as a protection for the worker who is exposed to employer behaviors , which, using the imbalance in the employer-worker relationship, violates the contractual and legal obligations that have been imposed, the worker having no choice, beyond bearing such behaviors or quitting your job . In this way, indirect dismissal meets this need, allowing the worker to provoke his dismissal, without losing the rights to compensation that in this case would correspond to him.

What does article 160 of the Labor Code say?

The employment contract ends without the right to any compensation when the employer terminates it invoking one or more of the following grounds. Some of the serious misconducts , duly verified, which are indicated below:

  • Lack of probity of the worker in the performance of his duties;

  • Sexual harassment behaviors;

  • Acts of fact exercised by the worker against the employer or any worker who works in the same company;

  • Injuries proffered by the worker to the employer;

  • Immoral conduct of the worker that affects the company where he works.

  • Negotiations that the worker executes within the business and that have been prohibited in writing in the respective contract by the employer.

  • Non- attendance of the worker to his work without just cause for two consecutive days, two Mondays in the month or a total of three days during the same period of time; likewise, the unjustified absence , or without prior notice on the part of the worker who is in charge of an activity, task or machine whose abandonment or stoppage means a serious disturbance in the progress of the work.

  • Abandonment of work by the worker, understood as such:

  • a) the untimely and unjustified departure of the worker from the slaughter site and during working hours, without the permission of the employer or his representative, and

  • b) the refusal to work without just cause in the tasks agreed in the contract.

  • Reckless acts, omissions or recklessness that affect the safety or operation of the establishment , the safety or activity of workers, or their health.

  • The material damage intentionally caused in the facilities , machinery, tools, work tools, products or merchandise.

Serious breach of the obligations imposed by the contract.

What is the step by step to perform a self-dismissal?

For these purposes, the worker must communicate in writing to his employer the term of the contract , with a copy to the respective Labor Inspection , indicating the legal cause or causes invoked and the facts on which the term of the contract is based . The worker must go to the Courts of Justice , within a period of 60 working days , counted from the termination of services, to file the claim for indirect dismissal and, if he obtains a favorable sentence , the judge will order the payment of the substitute compensation prior and legal notice for years of service, the latter increased by 50% in the event that the cause invoked is that of No. 7 of Article 160 , or 80% in the case of grounds No. 1 and 5 of same article.

What are the causes of indirect dismissal?

The indirect dismissal grounds are those that appear in article 160 of the labor code , but which regulates article 171 of the same code, considering that the employer has incurred in some of the causes established. Some of the misconduct of a serious nature, duly verified, which are indicated below:

  • Lack of probity of the worker in the performance of his duties;

  • Sexual harassment behaviors;

  • Acts of fact exercised by the worker against the employer or any worker who works in the same company;

  • Injuries proffered by the worker to the employer;

  • Immoral conduct of the worker that affects the company where he works, and

  • Harassment behaviors . This cause, as Article 160 itself says, consists of certain employer behaviors that may be considered improper, but which must always be serious, a good example is given with the employer's sexual harassment behaviors or with workplace harassment behaviors . or grooming .

  • Reckless acts, omissions or recklessness that affect the safety or operation of the establishment, the safety or activity of workers , or their health. It consists of behaviors that, although not properly improper , do jeopardize the safety of the establishment or rightly that of the workers, such as not having the necessary security measures to carry out certain work.

  • Serious breach of the obligations imposed by the contract . At this point it is plain and simple the breach of any of the obligations arising from the employment contract between the parties.

 

What are the requirements of origin of the car dismissal?

  • That the employment contract is in force.

  • That the employer incurs any of the causes that cause the indirect dismissal.

  • That the worker wishes to end the employment relationship.

 

If there is any cause, what do I do now?

As explained above, the first step will be to notify the employer in writing of the term of the contract , with a copy of the Labor Inspection , indicating the grounds on which it is based, and subsequently within 60 business days , file a claim for indirect dismissal.

What causes can cause an increase in compensation?

In accordance with the provisions of article 171 first paragraph of the labor code , all the causes of indirect dismissal give a surcharge or increase on compensation , but they do so in different percentages as follows:

  • If the cause is breach of contractual obligations , the compensation increase will be 50%

  • If the cause is any serious misconduct , duly proven or acts, omissions or reckless recklessness that affect the safety or operation of the establishment, the safety or activity of workers, or their health, the increase in the compensation will be up to 80%.

 

Depending on the cause, is the compensation different?

As we elucidate in the previous paragraph, the cause that is applied does not vary the compensation that must be paid , but the increase or surcharge that will be made on it.

What happens if the worker fails to prove the cause invoked?

Following the provisions of article 171 of the Labor Code , the circumstance of not proving the cause, and therefore the rejection of the demand for indirect dismissal , generates two possible consequences:

  • The first, which will always occur, is that from the moment the claim is rejected , the contract will be deemed terminated due to the resignation of the worker.

  • The second occurs only in the event that the cause invoked is sexual harassment or workplace harassment , and is that if the claim based on these grounds is declared lacking a plausible reason , the worker will be obliged to compensate the damages that cause the worker.

Can an agreement be reached before reaching the judicial stage?

Here it must be borne in mind that in the field of labor law , there will always be a previous step of a voluntary or obligatory nature, as the case may be, the Labor Inspection , that is how the worker who is considering demanding their indirect dismissal , asks the Inspection that summons its employer to a conciliation hearing , prior to the demand, in order to reach an agreement , operating the inspection itself as mediator.

What is the Labor Inspection?

It is a public body that was created with the purpose of monitoring compliance with labor and pension regulations regarding workers. Each inspection office is headed by a labor inspector , and its main functions are to attend to user queries and complaints ; go to workplaces to inspect compliance with labor and pension regulations ; apply sanctions to employers in case of non-compliance; mediate in cases of conflict between workers and employers , among others.

What are the functions of the Labor Inspection?

As explained by the labor inspection itself, its functions are:

  • Inspection: it is a set of activities aimed directly at the elevation and constant improvement of the levels of compliance with labor, social security and occupational health and safety legislation, the supervision of which is the responsibility of the Labor Directorate.

  • Systems for the prevention and alternative solution of conflicts and social dialogue: these are services that the Institution makes available to labor actors to facilitate the solution of conflicts , be they individual or collective, and to promote social dialogue and citizen participation.

  • Promotion of freedom of association and technical assistance : this is the set of services that the institution provides to labor actors so that they can better exercise their individual and collective labor and pension rights , especially those linked to the full exercise of freedom of association , collective bargaining and the right to strike.

  • Attention of Users: it is the specialized service of labor , social security, occupational health and safety assistance , which is provided to labor citizenship either by face-to-face, virtual or telephone.

  • Opinions: is the legal pronouncement made by the Labor Directorate regarding the meaning and scope of labor legislation in order to guide users of the Service in the correct interpretation of the labor law.

What types of cases does the Labor Inspection see?

Taking into account the functions performed by the Labor Inspection in our labor legal system , the cases of which it is aware are very wide, ranging from complaints made by workers , conciliation hearings , intervention in union negotiations , claims for social security debts , among others.

What procedures and services does the Labor Inspection provide?

The Labor Inspection offers a series of services, as well as procedures, both in person and online, which are directly related to the fulfillment of the functions entrusted to it by law, these procedures and services are focused on workers, employers and unions , so we will go on to list some of those that provide for the various parties in the employment relationship.

- Workers:

  • Procedures: Labor and pension advice , conciliation or claim hearing, sworn statement to process a medical license , ratification of a work settlement , complaint to an employer who does not comply with the fundamental rights of the employment relationship, employment record as a dependent worker , among other.

  • Services: Documentation and statistics center of the Labor Directorate (DT) , simulator for compensation paid in installments, simulator for updating part-time wages , etc.

- Employer:

  • Procedures: Certificate of labor and social security records, depositing documents related to the negotiation process , contracts and collective agreements , registering a joint hygiene and safety committee for the company , work or task, substitution of hygiene and safety fines ( Compliance Assistance Program ), among other.

  • Services: Center for labor consultations , simulator for compensation paid in installments, simulator for updating part-time remunerations , models of Contract and Formats of legal documents , center for labor consultations , documentation and statistics center, Official Gazette of the Labor Directorate , among other.

What role does the Labor Inspection play with respect to self-dismissal or indirect dismissal?

Here it is essential to distinguish, that depending on the amount of compensation demanded, the procedure will be different, which directly affects the role played by the Labor Inspection in these cases, thus, if the amount is less than 10 minimum earnings monthly, the order for payment procedure must be applied, which means that prior to requesting indirect dismissal, you must attend to file a claim with the Inspection , attend a mediation hearing before it, only once this procedure fails can you demand the dismissal indirect in court . Now, if the amount is greater than 10 minimum monthly earnings, the only role that the Labor Inspection will have will be related to the receipt of the letter by means of which the worker notifies the employer of his self-dismissal , the Inspection exercising its supervisory function , in relation to the cause that is being used for this purpose. However, we must remember that among the services offered by the Inspection is labor mediation , as well as the conciliation hearing , both voluntary, through which an agreement can be reached avoiding the trial that will cause an indirect dismissal.

What are the powers of the Labor Inspectorate in the face of self-dismissal?

In the particular case of indirect dismissal , to answer this question it will be necessary to distinguish the amount of the compensation that corresponds to the affected worker, so if the amount is less than 10 minimum monthly earnings ($ 2,880,000), a claim must be previously filed. in the labor inspection , taking all the evidence that proves the cause before it, who will promote a mediation between employer and worker , and in the event that this mediation fails, it will proceed before labor courts . On the contrary, if the amount of the compensation is higher than the aforementioned figure, the Inspection will not have a greater interference, since our legislation has given the labor courts the function of ruling on the configuration and origin of the action for indirect dismissal.

Can the Labor Inspectorate make a decision or is it just a mediator?

In accordance with what has been indicated in the previous paragraph, it can be deduced that the Labor Inspectorate does not have any decision-making power regarding indirect dismissal cases, but can only act as a mediator in order to achieve a conciliation agreement . However, it must be borne in mind that in those cases in which the amount of the compensation demanded is less than 10 monthly minimum incomes, the Inspection may determine the amount of the indemnities that proceed as the case may be.

How do I notify my employer of a self-dismissal?

The form of notification of a self-dismissal is simply in writing and always with a copy to the Labor Inspectorate , otherwise this communication will have no legal validity .

Is there a deadline to notify the employer?

To notify the self-dismissal there is a period of 3 working days from the separation of the worker , the foregoing in accordance with article 171, paragraph 4 of the labor code in relation to article 162 of the same legal body.

What is the deadline to claim self-dismissal in labor courts?

Again, based on what is stated in article 171 of the Labor Code , the deadline for filing the self - dismissal claim is 60 business days, counted from the termination, that is, from the time the worker was separated.

What compensation can I ask for in this case?

In the case of indirect dismissal, and here is one of its main differences with the resignation of the worker , all the compensation that would correspond in any other type of dismissal, that is, when we demand a self- dismissal we are entitled to compensation for years of service and the substitute compensation of prior notice , as well as the payment of overtime and legal holidays.

What do I do if the court rejects my claim? Even so, do I receive compensation and to what would it correspond?

If the court rejects the claim for indirect dismissal, it will be understood that the worker has resigned and is not entitled to any type of compensation .

What happens if my employer does not comply with the court order?

If the employer does not comply with the sentence , when constituting this an executive labor title , its compliance can be requested before a labor and social security collection court in order to take measures for collection, even reaching the seizure of the employer's assets.

Wolfenson Abogados provides excellent legal advice on self-dismissal or indirect dismissal.

Links of interest on self-dismissal :

1.- Labor Code

2.- Chilean Labor Directorate

Wolfenson Lawyers. Chile Law Firm.

If you need more information and legal advice regarding indirect or self-dismissal, we invite you to contact our lawyers in Santiago. We are located at Avenida Apoquindo 2930 in the commune of Las Condes, Santiago de Chile.

Wolfenson
  • Facebook - Gris Círculo
  • LinkedIn - Gris Círculo
Av. Apoquindo 2930 Las Condes, Santiago.
Email. contacto@wolfenson.cl  Phone. +56 2 2933 0384  Phone. +56 9 9884 1289