The Social Jurisdiction Law (LJS) regulates, in its articles 297 to 302, an issue of important practical relevance: the provisional execution of sentences that declare the inadmissibility or nullity of the dismissal of a worker.
Article 110 of the LJS establishes as an effect for unfair dismissal, the sentence to reinstatement of the worker with payment of processing salaries, or to the payment of the compensation established in art. 56 of the Workers' Statute. The choice of one option or another will generally correspond to the employer (the plaintiff), although in those cases in which the dismissal occurs to a worker who is or has been in the last year a legal or union representative of the workers, it will be up to him or her to do so. whoever is responsible for exercising it (in this case, the option is exercised by the plaintiff).
For its part, article 113 establishes as an effect of the declaration of nullity of dismissal, the obligation of immediate reinstatement of the worker, with payment of the wages lost.
Problems that may occur
The problem occurs when the businessman, opts for the reinstatement of the worker within the period established by article 110 itself in section 3, and the dismissal ruling is appealed. It is precisely this eventuality that is intended to be resolved with the provisional execution of the sentences that declare the dismissal to be inadmissible or null and void.
We say that the problem occurs in the event that the employer has opted for reinstatement, since, if the option chosen had been compensation, we will be faced with a monetary execution, and therefore, the provisional execution of the sentence under the terms of article 297, otherwise, as indicated in article 301 and in the event that the necessary budgets are met, refundable advances may be granted.
Thus, things, in the event that the option is for readmission, article 297 of the LJS indicates that: “When in the processes where actions are taken arising from dismissal or a decision to terminate the employment relationship, the sentence declares its inadmissibility and the employer who has opted for reinstatement files any of the remedies authorized by the Law, he will be obligated, while it lasts. the processing of the appeal, to pay the respondent the same remuneration that he was receiving prior to the occurrence of those events and the worker will continue to provide services, unless the employer prefers to make the aforementioned payment without any compensation. To then add that “The above provisions will also be applicable when, the employer having opted for reinstatement, the appeal is filed by the worker.””.
The Law of Social Jurisdiction protects the worker
In this way, the LJS manages to protect the worker by guaranteeing that, while the appeal is being substantiated, he continues to receive the salary prior to the dismissal classified as unfair or void. However, the Law itself has sought to put a limit on this right, and impose the corresponding obligation on the worker to effectively provide the services, since article 299 of the LJS has established that “Unjustified non-compliance by the worker with the business requirement to resume the provision of services will result in the definitive loss of wages...
On the other hand, and given the breakdown of mutual trust that dismissal entails, the employer is allowed to pay the remuneration without any consideration, thus avoiding situations that may occur "uncomfortable" in the Laboral scene.
The provisional execution of dismissal sentences, as configured in the Social Jurisdiction Law, has a clear autonomous procedure character, regarding the result that the appeal may have, since article 300 establishes that “If the ruling favorable to the worker is revoked in whole or in part, he will not be obliged to reimburse the salaries received during the period of provisional execution and will retain the right to be paid those accrued during the processing of the appeal and that there is no still received on the date of the finality of the sentence”.
One might wonder if this conception could come into conflict with the prohibition of unjust enrichment, but the truth is that the doctrine considers that there can be no place for this, both insofar as the payment of salaries is in consideration for services or either because the businessman voluntarily preferred the payment, without any consideration.
Nor is it the provisional execution a necessary procedural phase, since if it is not requested the part will not be carried out, and in fact, it is common for the worker not to request it.
It should be noted that, as the Constitutional Court has recognized, the right to the execution of sentences on its own terms is part of article 24.1 of the Constitution, that is, the right to effective judicial protection. However, the right to the provisional execution of sentences does not correspond to the right to effective judicial protection, but rather to a right established by ordinary legislation, and therefore, subject to the requirements for its applicability to review. of the ordinary courts.
Also noteworthy is the provision established in section 2 of article 297 for those cases in which the appealed sentence had declared the annulment of the dismissal or the extinctive decision of the employment relationship and for which precautionary measures may be adopted, especially for protection against harassment, in the terms of section 4 of article 180. In this sense, and as precautionary measures, we can point out the suspension of the relationship or exemption from the provision of services, the transfer of position or work center, the rearrangement or reduction of work time and any others that may be dictated, including, where appropriate, those that could affect the alleged harasser or violator of the rights or freedoms object of the intended protection.
Regarding judicial jurisdiction, to hear about the provisional execution of sentences that declare the inadmissibility or nullity of the dismissal, we must comply with the general rules of article 304 of the LJS, which establishes that: “The provisional execution of judicial resolutions will be dispatched and carried out by the court or tribunal that has issued, if applicable, the resolution to be executed and the parties will have the same rights and procedural powers as in the final execution.”.
That is why, from the joint reading of article 304 and 298, which establishes that the request for provisional execution will be made, “in writing or by appearance, in order to demand from the employer the fulfillment of that obligation or request of the latter for the latter to resume the provision of services.”", and "The judge or Chamber, after hearing the parties, will decide what is appropriate”; The possibility of provisional execution being carried out by the Social Chambers of the Superior Courts of Justice is clearly deduced.
This will be the case in the case of a ruling by a Social Court dismissing the dismissal claim that is appealed in a petition and is revoked, declaring the dismissal inadmissible or null and void and that is appealed in cassation for unification of doctrine by the company. In these cases, if the worker requests provisional execution, he or she will do so before the Social Chamber of the TSJ, which will be the competent body to decree it.
The Law does not regulate the deadline for requesting the provisional execution of dismissal sentences and therefore, in supplementary application of the LEC, it may be presented at any time while the appeal is pending.
How to request execution?
As for the dies a quo To request provisional execution of sentences handed down in the first instance, most of the doctrine considers that the appropriate time to request it is once the supplication resource has been formalized in legal form. He dies ad quem to request the provisional execution of the conviction in the instance, it will be before it is revoked by petition.
The procedure, according to article 298, will begin with a request from the worker or employer, which may be by written or by simple appearance and the Judge or Chamber will hear the parties in an appearance.
Given that the LJS does not regulate the regime applicable to the aforementioned appearance, the doctrine understands that the regime provided in article 280 of the Law, relating to the incident of non-readmission, must apply to it. In the aforementioned article, it is stated that “If the interested parties have been summoned properly and the worker or person representing them does not attend, their request will be considered withdrawn; If the businessman or his representative does not appear, the event will be held without his presence”.
Regarding the situation that occurs after the resolution of the appeal, the Law of Social Jurisdiction only deals with the revocation of the ruling favorable to the worker, establishing that, in that case, “The latter will not be obliged to reimburse the salaries received during the period of provisional execution and will retain the right to be paid those accrued during the processing of the appeal and that he had not yet received on the date of the finality of the sentence.”.
Lastly, and in relation to appeal regime against resolutions dictated by the Judge, we must comply with the provisions of art. 304 which indicates that: “Regarding the resolutions issued by the judge or court in provisional execution, only the appeal for reconsideration will be admissible, except when the order materially adopts a decision that falls outside the limits of provisional execution or the lack of jurisdiction or competence of the court is declared. social jurisdictional order in which an appeal for supplication or, where appropriate, an ordinary cassation appeal will proceed, in accordance with the general rules of such appeals.”
In relation to those that the Lawyer of the Administration of Justice could dictate, it is indicated that “an appeal for reconsideration will proceed, unless they are directly appealable in review”.
