Many would have thought that the fact that a disadvantaged employee (either handicapped or suffering from a debilitating medical condition) has committed a serious breach, thus incurring in a cause of termination, would allow the employer to validly and unilaterally terminate her or his employment contract without prior authorization from the labor authority and without paying a legal indemnity.

The fact is that according to a recent ruling by the Constitutional Court, employers must obtain an authorization from the labor authority when seeking the unilateral termination of a disadvantaged employee.

This ruling was issued by the Constitutional Court following the enactment of a governmental Decree 19, 2012 that included a provision establishing the possibility of terminating a handicapped employee – without any authorization from the labor authority – when she or he has incurred in cause of termination.

The Court has been emphatic when stating that the Government is empowered to issue provisions intended to eliminate unnecessary bureaucracy and/or regulations, but not to affect the constitutional protection of stability to which disadvantaged employees are entitled. This High Court believes that only Congress has the power to decide whether the authorization by the labor authority is required or not.

Hence, the provision included by the Government in its Decree was declared unenforceable. This means that the only valid way of invoking cause of termination when there is credible evidence of a serious breach is with the prior written authorization of the Ministry of Labour.

One wonders whether having to first seek the Ministry’s authorization to unilaterally terminate in the above cases protects the weak or instead provides them with tools to abuse their status?

 

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