Unfortunately, it is becoming increasingly common for the employer to fail to comply with one of its main obligations, namely the timely payment of the agreed salary.
In these situations, the worker affected by this serious breach, provided that the required seriousness is reached, can choose to terminate his employment contract under the article 50.1b of the Workers’ Statute, and must therefore receive compensation of the same amount as that established for unfair dismissal, without prejudice to also claim the wages owed.
And it is perfectly understandable that the worker in this situation should resort to this possibility, since, at least, he is freed from the obligation of having to work without obtaining any remuneration and, on the other hand, he can manage, if he meets the contribution requirements, the unemployment benefit.
However, it may be the case that between the filing of the lawsuit and the holding of the trial, the employee receives a job offer and voluntarily leaves the company, so that when the trial is held the employment relationship is already terminated, without, strictly speaking, being able to terminate an already terminated employment relationship, since it is a reiterated jurisprudential trend that it is an indispensable requirement that the employment relationship be alive.
This circumstance occurred in two workers of the same company, who received a job offer before the trial was held to resolve the petition for causal termination of the employment contract, so that when it was held, the workers had taken a voluntary leave of absence instead of requesting a definitive discharge from the company, as they were advised by this office.
Although, in both cases, the consequences were positive for the workers, since the sentence was the termination of the employment relationship with the right to receive the compensation corresponding to that established for unfair dismissal, the reasoning in both courts was different.
In one of the cases, the judgment states that the relationship between the parties is still alive, although suspended, since the employee retains a right to reinstatement, thus rejecting the plea of lack of action raised by the defendant, who was convicted in the terms described, emphasizing in the judgment that something that does not exist cannot be extinguished.
In the case of the other plaintiff, who had also taken voluntary leave of absence, the court sentences in the same terms, although it downplays the fact that he is on voluntary leave of absence, as it boldly reasons that, based on Article 303.3 of the Ley Reguladora de la jurisdicción Social, which recognizes that if the employer appeals the favorable judgment obtained by an employee in a lawsuit for termination of the contract, the employee may choose between continuing to provide services or ceasing to do so with the consequences established by the precept, which is not at all the case we are analyzing, since we are not at the appeal stage.
However, the judge considers that flexibility should be applied to this provision, so that the employee is not forced to maintain working conditions which, although not contrary to his dignity or integrity, could imply a serious financial loss or a loss of professional options. Therefore, it understands that the worker must be granted, also at this stage of the procedure, the possibility of choosing between exercising the termination action and continue providing services or stop providing services while exercising the action, assuming, in this case, the risk of the outcome of the process in the terms referred to above.
Consequently, it seems clear that once the action for termination of contract is initiated due to serious breaches by the employer, the employee must take advantage of the job opportunity that may arise, and appear on the day of trial to have the termination of the employment relationship declared, which in such case would take effect from the day of the voluntary termination, and the right to receive the compensation established for unfair dismissal.
It seems clear, therefore, that the termination of the employment contract and the receipt of the corresponding compensation cannot be made to depend on the pace of the courts, especially in such detrimental circumstances. In this sense, the Supreme Court has already pronounced in its judgment 619/17, (RCUD 2788/15), which condemns the employer to pay the compensation provided to a worker who, at the time of the celebration of the trial, had voluntarily terminated her employment contract, for which it reasons in its GROUNDS OF LAW that:
“There is therefore no doubt that the employment relationship was alive on the date of the communication by the worker, as well as on the date of the presentation of the conciliation letter and of the lawsuit at the origin of these proceedings.
