elmundo.es - Labor Office

Raúl García

Raúl García, socio responsable del Departamento de Derecho Laboral de Ernst & Young Abogados, junto con Luis San Emeterio, asociado del Despacho, responden a las preguntas que los lectores de elmundo.They have been formulated on tax issues.Submit your doubts for the next office.

The responses provided by the office are merely informative, in only and exclusively to the literalness of the terms of the consultations formulated.The information and comments included do not constitute any legal advice. Ernst & Young declina cualquier responsabilidad por la utilización que pueda hacerse del contenido de la respuesta.

Absolute permanent disability

I am 46 years old, I have recognized a total permanent disability of 300 euros that gave it to me about seven years ago when I finished working in the general regime in which I was secured seven years.I am currently autonomous, I've been quoting as a freelancer for 5 years.The head doctor has told me about the absolute permanent disability due to the worsening of my illness.I would like to know what the regulatory base would be, where they would calculate and how much they would pay me, since if it is like the one they give me now, I could not keep me.I am looking forward to your response.Thank you.

In the first place, you must keep in mind that for the situation that you raise: moving from a total permanent disability to an absolute, should process a review of your situation of disability, and the National Social Security Institute would be the competent bodyTo dictate a resolution in this regard.

Assuming that they recognized an absolute permanent disability, as regards the regulatory base, it would be the same one that is currently taken into account to calculate your pension.It should take into account that the cause of disability is the same, only that it has suffered aggravation.Therefore, neither the way to calculate the regulatory base nor the contribution bases would vary in this regard.What would be modified would be the percentage that it would receive from said regulatory base, since absolute permanent disability generates the right to a life pension equivalent to 100% of the regulatory base, instead of 55% who had been perceiving so far.

Additionally, you must keep in mind that when determining the pension, they operate minimum amounts, depending on whether you have spouse or not, and whether you are in charge.The minimum amount of the pension planned for 2012 is as follows: with spouse in charge: 763 euros/month;No spouse in charge: 618.9 euros/month;With spouse not in charge: 587 euros/month.Therefore, depending on your family situation, you will receive at least some of the amounts indicated.

Relief contract

Good morning, I currently have a relief contract at the Marbella City Council for 4 years and 9 months for a fixed labor worker with 35 years of service.My day is 75% of the day since a relieved worker works approximately one month a year.I have been working for 1 year.How the new Labor Reform Law affects me.Can the City Hall out full of service needs with this contract or with another annex since the department which is the work of citizen security?Could I access this place in some way before or after the end of the contract?Could the City Council get interim waiting for that square to go to public tender?And finally, what would happen right now if the partial retiree died, would I respect the contract?

First, answering his question of whether the City Council could expand the day of 75% to 100%, it must take into account that the conversion of a full -time part -time contract always voluntary for the worker.Thus, the City Council could not impose it unilaterally.In fact, if the City Council proposed the commented increase in the day and you reject it, you could not be fired or suffer any other type of sanction or damage for this fact.

As regards access to the "Property" workplace, it must take into consideration that your contract is temporary, 4 years and 9 months, we understand that until the partial retiree agrees to retirement.During that period of time, its link with the City Council is temporary, attached to a relief contract, and could not access the square "in property".In principle, once the contract reaches its term, it is extinguished.On the other hand, if the current work assumption allows to be occupied by labor personnel (and not exclusively officials who have accessed it through an opposition), if the company considered it appropriate, could sign with you an indefinite contract, but notis obliged to do so.On the other hand, if your job requires, in general, having approved an opposition, it should be submitted to the public contest, although you have occupied that position for a certain period of time previously.

As for the interim contract, the company could sign with you, once the relief contract has been completed, a vacancy coverage interim contract.The maximum duration of this contract would be 3 months, while the selection process is substantiated.The contract would be extinguished when the selection process culminated or when the maximum legal period of 3 months would arrive.

Finally, in the event that the retired worker partially died, his contract would remain in force for the time established in the same.It is true that there is a certain connection between your contract and that of the partial retiree, but this original connection does not determine a dependency to the point of understanding that your contract should be extinguished if the retiree dies.Therefore, in the event that you were fired for this reason, the dismissal would be declared inadmissible, since the death of the partial retiree does not enable the company to extinguish its contract, but must respect what is agreed in the contract.

Dismissal

Dear Sirs.I have an indefinite contract.Request reduction from day for minor care 2 years ago.Since then the situation is unsustainable and I need to be low because I am getting sick.Stomach ulcers, fainting, tachycardia...If they give me the job, can they say goodbye?Thank you very much.

In answer to your question we inform you that the fact that a worker agrees to temporary disability does not enable the employer to fire him.That is, so that the company could proceed to its dismissal, it should prove any of the causes established in the Workers' Statute.

On the other hand, it must take into consideration that temporary disability does not grant any special or additional protection in the face of dismissal, that is, if they effectively attend causes to proceed to dismiss.In this regard, it is important to note that the condition of a disease is not considered as a cause of discrimination of protected according to article 14 of the Spanish Constitution.

In fact, there are several cases in which the company could fire it for objective causes, for this, the following circumstances should occur: (i) concurrence of economic, technical, organizational or production causes that enable the company to carry out contracts of contracts of work.(ii) Faults of work assistance, still justified but intermittent, that reach 20% of the business days in two consecutive months, or 25% in 4 months discontinuous within a period of 12 months.Thus, several periods of decline should be given due to the same disease, lasting less than 20 days, which added, exceed that period.You must keep in mind that there are assumptions such as work accident, or non -labor disease or accident when the labor decline has been agreed by official health services and has a duration of more than 20 consecutive days that does not compute these excluded effects of thiscalculation.Therefore, if your work decline has a duration of more than 20 consecutive days, it could not be fired for this cause.Therefore, unless you are in the case of periods of temporary disability less than 20 days and exceed the limits indicated, the company could fire you in the same terms as if you were high labor, since in the determination ofThe objective causes mentioned at point (i), no influence has to be high or labor low.

Finally, note that since you are in a situation of reducing the day for child care, before an eventual dismissal that is considered judicially as not appropriate, it could only be declared as void, and not inadmissible.As a consequence, the company should readmit immediately.

High in the INSS without being in working conditions

Good, I had been with common illness for 17 months and one day they called me from the INSS that I went to a review, I went and at the days they discharged me through a certified letter, I have filed a previous claim that has a resolution period of 45 days, but I have to go to work.The traumatologist has made me a report like I cannot lift my arm more than 100 degrees and that I cannot make any effort another of the rehabilitator as I have to go every day, more citations for resonance and electromyogram, but they tell meThat they are not useful that if I have the discharge I have to do the work they send me, can they say goodbye to me appropriate if I do not do the work they send me?Can I go to work and then go to the emergency room every day, could they say goodbye to me?How should the case come?

In the first place, we must inform you that as soon as an express resolution has fallen from the National Social Security Institute granting you, you are obliged: (i) to return to your job, going every day to the center of the center ofwork and also (ii) to fulfill the orders of the entrepreneur normally.His non -reincorporation after the medical discharge is issued, constitutes a serious and guilty breach with dismissal.Thus, if once high labor, you did not go to your job, it could be disciplinary by failures of work assistance, or could even be considered this fact as a resignation for your part.Despite having reports of the traumatologist and the rehabilitator, since the INSS has given him a work, it is to all purposes, and in principle he must fulfill the orders of the company normally.If you did not, you could be disciplinary by indiscipline or disobedience.

Thus, the challenge of the administrative resolution does not maintain the suspension of the employment contract until a pronouncement in this regard falls;The justification of the absence disappears.In his case, the most diligent would be to inform the company of his situation and the claim he has made, accrediting the subsistence of his illness through the reports to which he referred, so that the company can verify said situation.However, as we pointed out, the presentation of these reports does not exempt him from carrying out his work normally, but if the company considers that the subsistence of the disease is sufficiently accredited, it can take it into account in the task task.

Therefore, in the course of time until a pronouncement falls in this regard, effectively the 45 days you mentioned, you must wait and go to your job normally performing your functions in the company.As for your question of whether you can go to work and then go to the emergency room every day, you must consider that you are already discharged, and depending on the content of the medical certificate that issued you in the emergency room, the company could consider that theabandonment of the job is not sufficiently justified, and proceed to your dismissal.To this tenor, the provisions of the Collective Application Agreement should be attended, since it may contain clauses in this regard.

Breach fixed-discontinuous contract hospitality

I am fixed discontinuous in a 4 -star hotel with a capacity of 1.000 people.I have antiquity since 2008, my cook work consists of making hot desserts, cold and pastry these functions I have been doing since I went to work.The company in which I work closed in January and has returned to open on February 9 and as of today, has not called me to work and have hired a click.I went to talk to the director and told me that I did not need my services and that I would call me.That she called by category and that cooks did not need, now, I wonder who does my job? Since the colleagues who are working are kitchen assistants, a second and a starting head, there is no cook.Can I claim the company to call me to work?What I can do?Does the company have the right not to call me or as a dubrive is obliged?As of today the hotel has an occupation of 500 to 700 people.

In response to the issues raised, we inform you that the Discontinuous Fixed Contract implies an obligation to call by the employer.The worker must be called to work by the employer every time he will resume the activity.You must keep in mind that it is a single contract and several appeals.

As for the order and form of the call, it is sometimes contained in the collective agreement.Therefore, we should also take into account the provisions of the hospitality agreement in the area of the hotel in question, however, we do not have enough data to determine what would be.Thus, it is possible that the order of appeal is established by categories, it would be necessary to meet the provisions of the collective agreement.

The omission of appeal constitutes a business breach comparable to a dismissal, although there may be causes outside the will of the company.However, in its case, since the hotel has restarted its activity and with an occupation of 500 to 700 people according to the data provided, it could be understood that the activity has been resumed, and that therefore would be entitled to its reinstatement.

Ere.Day reduced by minor care

Hello.My company is going to negotiate an Ere and I am disoriented.I have an indefinite contract por minusvalía y además, tengo jornada reducida por cuidado de hijo menor de 3 años ¿Tengo alguna posibilidad de negociar condiciones distintas? ¿La Ley me protege en algún caso?Thank you de antemano.

We understand by his question that the company's intention is to proceed to the collective dismissal of a part of the workforce.In order for the company to go to the formula of the objective dismissal, economic, technical, organizational or production causes that justify the dismissal must attend.

In principle, its personal situation of beneficiary of a reduction in the day regulated in article 37 of the ET, does not confer a priority of permanence in the company, nor its disability.The law leaves open the possibility that the company agrees.

The only employees who have special protection in case of collective dismissal are workers' representatives.In any case, and despite there is no precept that imposes the criteria with which the employees to whom the contractual extinction affect the contractual extinction, must meet the conditions of reasonableness and not be discriminatory or abusive.

Taking into account the above, if the termination of the contract for a dismissal individually, vd, is effective, vd.You will be entitled to compensation of 20 days of salary per year of service with the top of 12 monthly payments.Yes VD.He did not agree with the decision achieved, since he understands that there are no causes that justify the dismissal, he may file demand against said decision.For this, it will have a period of 20 days from the date of effect of dismissal.

In the event that the judge declares that the causes that justify the dismissal carried out, it will be declared void and must be reincorporated in the company.In this case, it is benefited from being enjoying a reduction in working hours, since otherwise the company could choose to pay for compensation for improper dismissal.

Contract chain New Reform 2012

Hello.I have been working for the same company with different contracts for work and service since November 2010, the last one signed it in August 2011 and it seems that they will make me a renewal in April 2012 and for what my boss told me today, I will only be able to sign this renewal until December 2012 because in January the labor reform in terms of contracting contracts and would already exceed 24 months. ¿Eso es correcto? ¿Tiene carácter retroactivo? ¿O de lo contrario empezaría a contar los 24 meses desde enero de 2013?Thank you.

The company's refusal is motivated because the reform does not establish anything about the practical consequences that the art suspension period will have.fifteen.5 of the ET, which established the temporary limitation to the concatenation of temporary contracts, basically of work and service and possible due to production circumstances.

In summary, this precept indicated that workers who had been hired in a period of 30 months, during a period greater than 24 months, through two or more temporary contracts for the same or different position, would automatically acquire the status of workersfixed.The RDLEY 10/2011 suspended the application of said article during the two years following the entry into force of said standard.That is, since 31.08.11 to 30.08.13.

No obstante, la nueva reforma laboral operada mediante el RDL 3/2012, de 10 de febrero, modifica lo dicho en el anterior Real Decreto, extendiendo la suspensión del artículofifteen.5 of ET only as of December 31, 2012.Therefore, taking into account his story of Acts, when he signed the first contract in November 2010, the article was in force and applied the limit described.Only the following contracts formalized since August 2011 (and provided that they have been signed after August 31 of that year) would be suspected until December 31, 2012.

In any case, we would have to wait for the courts to be pronounced on this issue, since as we have indicated, nothing says the law in this regard. Teniendo en cuenta la especial protección que los jueces ofrecen al trabajador, sería posible pensar que en estas situaciones se vayan a tener en cuenta para el cómputo del plazo del artículofifteen.5 of ET those contracts signed during the suspension period.

Reduction in working hours for legal guardianship

Buenas tardes.I have a service assistant contract (I am hired by a company but I provide services in another) before the labor reform I presented the letter reduction letter from Monday to Friday from 8:00 a.m. to 1:00 p.m. (within the day I did before).The response from my company by telegram is that they have to change my work center because I am now do not have that turn.

What they offer me in return (verbally) is a job much further from my house, it would take at least two hours to arrive with an entrance schedule at 10 in the morning and remove the plus that the other company pays me, fromMONDAY TO SUNDAY LIBRING during the week.Thank you.

It should be noted that the power to determine the schedule is granted by law first to the worker, "since he is the only one trained to decide what is the most ideal period to fulfill the obligations of parental authority that compete".Therefore, in case of doubt, "such a collision must be resolved prevailing the criteria of the worker affected by the family problem».The only limitation indicated by law, is that the reduction of the day is established within the ordinary day of the worker, that is, within the time he had been developing.

If the reduction to which you.Reference is within its usual day (as it seems to be detached from the consultation), the cause that the company alleges to deny the reduction may not be justified.That is, if its previous day was done at the same time as the one you requested now, but reduced the number of hours worked, the company's justification that there is no such turn in the company when it had been doing it previously, in principle, it would lack a foundation and consequently the company could not deny this reduction and time concretion.

In fact, the courts demand that important and reasonable productive and organizational needs concur that prevent recognition of the reduction of working hours.Specifically, the existence of simple operating difficulties but must be very special or exceptional circumstances cannot be opposed to the worker.In case of disagreement, it has a period of 20 calendar days counted from the employee's refusal to claim against the Social Courts said decision.

Labor incompatibility

Hello.My question is as follows: I work for 9 years with a fixed place of labor personnel in the municipal residence of elders in my city.I have a reduction in day (mean) for care of my children.My question is that I am asking myself to open a business related to my job (care for older people) and I don't know, if it can be incompatible with my current work activity.Thank you.

The purpose of the reduction of the day to which it refers is none other than attending direct care of a child under 8 years.

The cases of the day reduced by legal guardian tend to protect not only the right of workers to reconcile their working and family life, but also and more intensely to protect the minor's own interest to receive the best possible attention.

In this sense, the judicial doctrine has established that although the worker has freedom to organize the administration of his time, when the purpose of the reduction is to take care of the child, dedicate that time to a personal business instead of the child's guardian,That was for what the reduction was granted, would leave the right empty of content.That is why it is fully rejected by our courts.

In conclusion, although the law does not establish the incompatibility of the reduction of the day with the exercise of a work activity, the spirit of the same would be distorted and the courts have declared it.

Extra Christmas pay

Hello, quería hacerles una consulta.I am entrepreneurs and due to the crisis the suppliers do not pay me on their date and do not pay everything, so I am having problems when paying the workers.In the month of December I had to pay the extra Christmas pay and I could not do it and I wanted to know if I have any maximum period to pay it, I understood that I have a period of 6 months but I am not sure, also a former worker demands meThat I pay 10% of the extra Christmas pay that I wanted to pay it now on 02-23-2012 and the settlement and has threatened to report me.What I can do?I also wanted to point out that I am up to all payrolls, VAT, Social Security, etc..The only thing I need to pay them is the extra Christmas pay and some settlements that I pay as I charge.Thank you very much.

In accordance with the provisions of the Workers' Statute, the payment of the salary will be done promptly.The employer must pay the employee within one month from the day on which the extra Christmas pay had to be paid, so in this case the legal term offered by the rule to pay the corresponding wages has been exceeded.

Taking into account the above, every businessman who later 30 days to liquidate the payrolls to his workers, must also pay them a 10% interest in default that will apply on the amount really owed.Said percentage interest is of an annual nature and therefore of impact provided to the time of delay elapsed (in this case approximately 2 months).That is, 10% does not apply to the total extra pay, but only 1.6% (since the payment of what was owed 2 months late, approximately).

On the other hand, if the lack of payment or their delays are continued, the worker may extinguish the contract for his will and, in that case, he will be entitled to the compensation indicated for the inadmissible dismissal (33 days of salary per yearof service from 02/12/2012 and 45 days of salary per year of service until 02/11/2012).

The jurisprudence has understood that to appreciate this case, at least a three -month delay in the payment of the salary should be mediated.So the employee would not have the right to extinguish his contract.In conclusion, in the present case the employee is entitled to claim 10% interest in default for the delay in the perceived of the extra pay -owned.