Blog

HARAKIRI EMPLOYER: Notice of termination of contract.

By: Mtro. Federico Anaya Ojeda - March 2006 -

Harakiri (in Japanese, `self-disembowelment), Japanese practice of ritual suicide by disembowelment, originally customarily restricted to nobles and later adopted by all classes.

For several decades there have been countless employers who have committed harakiri in order to comply with the provisions of the law. In some cases they have been victims of legal advisers or accountants with little knowledge of labor law. In other cases themselves and total inexperience have enforced orders that have led to a sudden business death.

This involuntary suicide is certainly want to apply the law when dismissing a worker, and the employer is sadly bouncing with full justification, is ordered to pay compensation to the worker towering rescinded.

This would not be so alarming, and believe me, labor lawyers know, if the law itself did not give them the elements to make this self blunder.

Indeed Article 47 of the Federal Labor Law which states are the grounds for which termination of contract applicable for reasons attributable to the worker. Among them we find that an employer may terminate the employment contract by situations such as, lack of integrity and honesty by the worker, the offenses committed by the employee against the employer or their relatives, having missed more than three times in a period of thirty days, the come to work intoxicated, all fully justified reasons to tell a worker, thank you very much but you're not welcome in this company. However, if the employer decides to follow the procedure prescribed by law to rescind his contract, in most cases the pattern ends up losing the labor case before the Conciliation and Arbitration.

The first recommendation we make to employers when they decide rightly or wrongly dismissing a worker is to dial the phone from his bedside labor lawyer and ask for legal advice. Refrain please seek help from people with insufficient knowledge in the area of labor law, and that I mean lawyers specialists in other branches, administrators or accountants who in good faith give wrong advice.

The law prevents the termination notice must be in writing and delivered to the employee for signature. If the employee refuses to sign it happens in most cases, the employer will have to prove at trial, as well as the causes of termination, the firm refusal by the employee.

Also when the employee refuses to sign the notice of termination, the employer has five days to submit in writing a procedure paraprocesal to the Board of Conciliation and Arbitration, which in turn must notify the employee terminated.

If the pattern runs with bad luck that:

  • The notice of withdrawal shall be prepared by a specialist in the field;
  • The employee refuses to sign the notice of termination;
  • The pattern is not alert to the Board of Conciliation and Arbitration within the prescribed period;
  • The pattern does not prove the grounds for termination during the procedure;
  • Or that the pattern does not prove the worker's refusal to receive notice;

The dismissal to which we refer is deemed UNFAIR and condemn the employer to pay or enforcement action brought for dismissal, whether the amount of ninety days wages worker integrated, or its Restitution in employment, and wage payment fallen from the date of dismissal to the date on which employee is reinstated or damning compliance with the award.

This translates into a litigious ordeal that no litigator in their right mind would want to endure, especially witnesses, who would resort to test condition of our report, is constantly mistaken or are victims of shrewd lawyers contrary to them repreguntan in an audience and make them fall into contradiction.

On the other hand there are grounds for termination that are difficult to prove due to the subjectivity of concepts such as intentionality in the harm, negligence, recklessness, or disobedience, or concepts such as deceit, lack of probity and honesty, lack of discipline, violence, insults, intimidation, and abuse, which if not physical, tangible evidence of the said witnesses can cost many thousands of dollars, including termination of contract more than three absences assistance in a period of thirty days is risky, even with control cards and attendance duly signed by the worker, then the worker can easily argue that their faults were justified.

Finally, assuming that the company has been lucky and met all requirements for numerous terminate an employment contract, the employer will inevitably condemned to pay seniority premiums, consisting of the sum of twelve days of salary per year , bumped at most twice the minimum wage in the area where the service is provided, regardless of the date of entry of the worker, a sentence which could be avoided if you choose another path less rugged and more efficient, which is a pretext for another talk with you.

In conclusion, we note that employers must have primary care when to terminate the employment relationship at any time must be advised by an expert, to decide whether the information provided is appropriate to make the termination or not, and employers avoid unintentional suicide.


The picture in this article is for illustrative purposes only