By: Lic. Federico Anaya Ojeda - October 2005 -

Legend of the twenty - twenty days per year - popular belief that employers and employees, law professors and students, union leaders and candidates, accountants and managers, housewives and shysters, judges backed the years seventies, which tells us that workers unjustly dismissed from their rightful compensation payment consisting of twenty days of salary for each year of service.

Legend of the twenty has its variants, reaching refer to when the worker claims the reinstatement in their jobs, are entitled to receive such compensation. The lawyers for the workers themselves, but by asking and not be impoverished than conviction, proposed twenty days per year to reach a settlement in the labor process, arguing that the main action is the replacement worker employment.

Contrary to what was said by the legend of the twenties and its variants, the compensation which the total of twenty days of salary for each year of service, it is unnecessary for unfair dismissal. The four case law specifically states that this compensation should be paid. Three of them totally unrelated to unfair dismissal and the other linked to an indirect firing, but no payment conditional dismissal, as we shall see later.

Ask the readers, then you are entitled to a worker dismissed without justification? Article 48 of the Federal Labor Law provides that the dismissed employee may elect to be reinstated in their jobs or to be compensated in the amount of three months' salary. This compensation is called Constitutional Indemnification and Compensation differs from the twenties. In addition to the action brought, - the damages or reinstalatoria-the worker is entitled to be paid the wages due from the date of dismissal to the date of compliance with the award.

FIRST COURSE. - REPLACE NEGATIVE PATTERN OF WORKERS. (ARTICLES 49 AND 50 OF THE FEDERAL LABOR LAW)

This assumption is found in Article 50 of the Federal Labor Law. Reading it would be idle if we did not read the contents carefully. Indeed speaks of compensation consisting of 20 days salary for each year of service but never speaks of unfair dismissal. His understanding leads us to Art 49, by stating: "the compensation referred to in the preceding article."

Know the reasons, but the people who read that article rarely discuss "previous article". Indeed Article 49 of the Federal Labour Act states that the employer may be exempted from the obligation to reinstate the worker in the case of workers with less than one year old, trusted workers, domestic workers, temporary workers, and Where the worker is in direct and permanent contact with the employer and make normal development impossible working relationship.

That is, to avoid this reinstatement, the employer can choose and pay the worker compensation following Article 50:

1. If the employment relationship is for a fixed period less than one year in an amount equal to the amount of wages than half the time of the services provided, and if in excess of one year in an amount equal to the amount of wages six months' salary for the first year and twenty days for each of the following years they had provided the services.
2. If the employment relationship is for an indefinite period, compensation shall be the amount of twenty days of salary for each year of services.
3. In addition to these benefits, the employees are entitled to receive compensation constitutional three months salary plus the payment of wages due.

Necessity for this assumption is there must be a wrongful termination, so the worker can choose reinstalatoria action to the Board of Conciliation and Arbitration, and if after award pronounced conviction proceedings to punish the employer to reinstate the worker it may refuse to do so if you pay the famous and twenty days per year in the terms indicated. The sentence is not derived from a layoff but the refusal of the employer to reinstate the worker.

In practice it is almost impossible to happen. An employer who prefer mental health presume reinstate the worker in his job for a few hours and then return to fire him. The worker will have to try a new demand and avoid paying a sentence pattern considerable increase depending on their age.

SECOND COURSE. - TERMINATION FOR CAUSE ATTRIBUTABLE TO WORKER PATTERN. (ARTICLES 51 AND 52 OF THE FEDERAL LABOR LAW)

The employee may terminate without liability the individual employment relationship for reasons attributable to the employer if the latter is cheating regarding the conditions of the proposed work, or commits lack of probity or honesty, violence, threats, insults against the worker or their families; reduce his salary, not the salary paid in the time and place agreed on, the intentional damage your tool, or falls into any of the circumstances described in Article 51 of the Federal Labor Law.

If after a trial, the worker certifies the causes of termination, and pronounced damning ruling, the employee is entitled to severance pay is contained in Article 50 before studied, ie, the famous and twenty days per year.

THIRD COURSE. - STAFF REDUCTION MACHINERY FOR IMPLEMENTATION OF NEW WORK PROCEDURES (ARTICLE 439 OF THE FEDERAL LABOR LAW)

In the case of machinery or implementation of new working procedures to bring as a result of downsizing, the worker is entitled to reset are paid at least four months' salary plus the amount of twenty days of salary for each year of services provided, and seniority premiums.

A plain reading of Article 439 invoked realize that we do not talk about dismissal. The adjustment is the reduction of employees of a given company or business Inability to pay for the production, the excess of the amount as set out in Articles 34, section III, 437, 439 and 900 to 919 of the Federal Labour Act, while that involves dissolving wrongful termination of the employment relationship by the employer without cause or without showing cause.

FOURTH COURSE. - BOUND NEGATIVE PATTERN TO ARBITRATION OR FOLLOW THE AWARD RENDERED BY THE BOARD OF RECONCILIATION AND ARBITRATION. (ARTICLE 947 OF THE FEDERAL LABOR LAW)

The employer who refuses to submit their disputes to arbitration by the Board or to accept the award rendered by it, shall be punished by twenty days of salary per year of service in accordance with the rules studied in Article 50, to the premium seniority, and wages due since the date until claims are paid.

In this case we return to the case of the crazy pattern. No sane person will refuse to submit their disputes to arbitration or to abide by the decision rendered by the board, for the simple reason that this refusal would result in a sentence higher than that of any award damning.

Fortunately, in the year of 1985, the Supreme Court of Justice of the Nation, through their collegiate courts issued contradictory argument makes clear where the arguments in this article. The transcribed as an endpoint. Legend of the twenty not true, never has been and here we fully test it.

INDEMNIFICATION OF 20 DAYS PER YEAR SALARY FOR SERVICES RENDERED, PROVENANCE OF.

Text

Considering that Articles 123, Section XXII of the Constitution of the United Mexican States and 48 of the Federal Labor Law, do not have that when they exercise actions arising from unfair dismissal should pay the compensation in the 20 days salary for each year of service, referred to in Article 50, Section II, of the said Act, it is concluded that this provision only applies in cases specified by articles 49, 52 and 947 of the Act referred , because its purpose is to compensate or reward the worker's injury that causes him not to be able to continue working in the post he held for a cause beyond his control, either because the employer does not want to reinstall in their work, either because it is forced to break the employment relationship for cause attributable to the employer, that is, that such compensation is a compensation for the worker, who can no longer perform his job.

Precedents

Other 3/85. Contradictory argument: Among the Circuit Collegiate Courts: Sixth, Seventh, Eighth and Ninth, then unique. August 7, 1989. Unanimity of votes. Speaker: Ulysses Schmill Ordonez. Secretary: Victor Maldonado Ernesto Lara. NOTE: This thesis also is published in the Gazette of the Federal Judicial Weekly, Issue 34, October 1990, p. 43.

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