Regulation
The regulation of voluntary leave is briefly stated in the article 46.2 of the Workers' Statute. It is a very basic regulation and with two basic requirements: 1 year of service in the company and period of leave: 4 months and 5 years, perhaps for this reason, being so little regulated, the cases in this regard are very varied.
Let's analyze some aspects in this regard:
- Advance notice: There is no prior notice for requesting voluntary leave, therefore, the deadline established in the applicable collective agreement must be applied. If the collective agreement does not establish anything, it is recommended that the worker give 15 days' notice; in any case, both the worker and the company must use deadlines. reasonable for it.
- Response from the company: the working person cannot “self-grant” unilaterally the leave of absence. The Workers' Statute, in its literal wording, says “"The worker has the right to be recognized," Therefore, the employer must respond to the request made by the worker. In the event that the company does not respond, the worker must file the corresponding claim before the social jurisdiction.
If the worker initiated said leave without the authorization of the company and stopped going to work without justified cause, he would be committing a labor violation that could be considered cause for disciplinary dismissal or a tacit voluntary resignation.
- Right to entry: The worker on voluntary leave only has a preferential right to reinstatement in vacancies of the same category as his. The worker does not enjoy a job reservation, unless agreed between the parties. That is why this suspension of the contract greatly weakens the employment relationship since it may be the case that the worker does not return to the company.
The Workers' Statute does not include a notice period to return to the job, therefore, unless the agreement indicates a period of notice, it must be requested at least before the end of the leave period.
- Denial of leave: In the event that the company chooses not to hire the worker into a position of similar category because there is no vacancy, the worker will continue to retain the preferential right to entry. In this case, you must be careful with vacancies of a similar category since if it is not communicated to the worker, he or she may file a claim before the social jurisdiction.
- Extension: The Workers' Statute does not include this possibility. The collective agreement or the parties can agree on the extensions that they consider to be a conventional improvement.
Collective agreements
There are collective agreements in which voluntary leaves of absence are regulated with other rights and obligations. For example: that the collective agreement reserves the job, that it extends the duration of the leave of absence, that it establishes a notice period, that it regulates the extension(s), etc., in such a way that if the worker fails to comply with the established in the collective agreement, the company could deny the right to re-entry when requested.
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