Monday, October 26, 2020

Labor Reform will Affect Employees in Unjustified Dismissals

By on January 25, 2017

SAN JUAN — The labor reform bill sent by the Legislative Assembly to La Fortaleza for Gov. Ricardo Rosselló’s signature could have negative implications for employees who are unjustifiably dismissed because it eliminates language that demands that the burden of proof in a lawsuit falls on the employer.

This means it would be the employee who must prove he or she was dismissed without justification.

House Labor Affairs Committee Chairman Ángel Peña (Cindy Burgos Alvarado/CB)

House Labor Affairs Committee Chairman Ángel Peña (Cindy Burgos Alvarado/CB)

The situation contradicts what was established by the president of the House Labor Affairs Committee, Ángel Peña, who said Monday that they concur with Senate amendments to House Bill 453 because it preserved the language that “the weight of the proof falls on the employer.”

“It [the language] was pointed out and they did not correct it. By trying to return the presumption in favor of the employee, they eliminate the provision altogether. That amends Act 80 [of unjustified dismissal] to remove all that is available on the presumption, which is neither in favor of the employee nor the employer, but leaves it empty,” Popular Democratic Party (PDP) Rep. Manuel Natal explained to Caribbean Business.

The legislator, a lawyer by profession, stressed that the effect of leaving this “vacuum” in the labor reform will result in turning to the civil procedure’s general rules of unjustified dismissal, which establish that “the plaintiff has the burden of proof,” whom in this case is the employee.

Initially, Act 80 stated in article 11 that in cases of unjustified dismissal “the employer will be forced to explain the facts that gave rise to the dismissal and prove that the same was justified.”

Now, article 4.12 of the labor reform, which amends article 11 of Act 80, eliminates the text and states that: “In any lawsuit based exclusively on this law, the court shall hold a conference no later than 60 days after the response to the claim or complaint is filed, to which the parties shall be required to appear or be represented by a person authorized to make decisions, including the transaction of the claim.”

“It makes it more difficult for the employee to prove an unjustified dismissal because now he has to show the employer that he did everything right, that he is not guilty of anything,” attorney and analyst Luis Balbino Arroyo said regarding other effects of this provision.

He added that the labor attorneys’ business will also be affected because the same salary, 15% of the dismissed employee’s severance pay, according to Act 80 — the burden of proof must be presented.

“Under this system, the employee has to operate under the premise that he will not be given the severance [after the dismissal]. Although in theory you are entitled to that severance, the legal process will make it more difficult [for the employee to obtain it],” Arroyo added.

The labor reform bill may become law at any time because it is already in the governor’s office.

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