By: Ab. Cristina Guarderas B.
Head of the Labor Department
Dear friends and clients,
To determine the constitutionality of the interpretative provision of the Organic Law of Humanitarian Support, on the application of the cause of fortuitous event and force majeure for the termination of labor relations during the pandemic, the Constitutional Court ratified many of our legal criteria and sentenced the following (sentence No. 23-20-CN):
One of our criteria sustained that said provision did not interpret the norm but rather reformed it because it did NOT clarify the meaning and scope of the application of the fortuitous event or force majeure, but went beyond it. It added two new obligations that conditioned the configuration of this cause, that is:
The total closure of the business and,
Indefinite or permanent time
These elements were implemented retroactively, violating the principle of legal certainty.
Consequently, the Constitutional Court pointed out that it is incompatible with the element of foreseeability since the employers did not foresee these two elements in such a way that they invoked the cause of fortuitous event or force majeure to terminate the employment relationship, which at the time was applicable.
We regret that such a clear aspect of the law has merited a constitutional ruling that took two years, severely affecting clients and friends who had the unavoidable need to terminate employment relationships and who were ordered to pay severance payments.
We will do our best to enforce this concept in future and ongoing cases as resolved by the judgment.
If you would like to know more about this matter, please do not hesitate to contact us or follow us on our social networks.
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