Author: Amado Sánchez de Camps
The Supreme Court of Justice specified that the concept of “continuing fault” is typical of the figures of unilateral termination at the time of verifying whether the imputed fault complies with the 15 days established in articles 90 and 98 of the Labour Code; and thus, determine if the right to unilaterally terminate the contract has expired. Therefore, the term “continuing fault” does not apply to accessory claims of other rights, such as acquired rights (Christmas salary, participation in corporate profits and leave), salary payment, overtime, etc.
The employee can demand the payment of these rights at any time, “provided they are not rights born before the year after the contract was terminated” in accordance with article 704 of the Labour Code. Therefore, the employees cannot demand the rights born before last year, under the pretext of being a continuing fault.
Key Action Points for Human Resources and In-house Counsel
Company HR personnel are reminded to keep a written record of all payments made to workers, at least one year after the contract’s termination.