See below the most relevant judicial decisions of January 2024:
Can foster children be beneficiaries of pension substitution?
JUDICIAL DISTRICT: BOGOTÁ
TYPE OF PROCEEDING: TUTELA ACTION
SEAT OR INSTANCE: REVIEW
DECISION DATE: SEPTEMBER 2023
SUBJECT: EMPLOYER SUBSTITUTION, FOSTER CHILDREN
DECISION: REVOKES TUTELA RULINGS
SUMMARY OF THE FACTS
The plaintiff, acting as legal representative of his minor daughter, filed a tutela action against the entities in charge of the recognition and payment of the old age pension earned by the minor's grandmother, in order to order them to grant her a pension substitution, as a foster daughter.
She based her claims on the fact that her mother and, in turn, the grandmother of the minor, was receiving an old age pension for her work as a teacher; that she lived with and was responsible for the maintenance and care of the minor for the last 7 years. She added that, upon the death of her mother, she requested from the defendants the recognition of the pension substitution in favor of her daughter. However, the entities denied the request because she was not the biological daughter of the deceased. Faced with this decision, the plaintiff filed an appeal for reconsideration and this was resolved in the negative.
Considering that this decision violated the fundamental rights of the minor to social security, equality, physical integrity and life, the plaintiff invoked constitutional protection.
The entity in charge of the payment of the pension payments alleged lack of standing in the passive cause. It asserted that it was not competent to issue administrative acts for the recognition of economic benefits of teachers, since this is an exclusive competence of the Secretaries of Education of each territorial entity. On the other hand, the agency in charge of the recognition of the benefit claimed remained silent on the claims of the plaintiff.
FIRST INSTANCE DECISION
The Promiscuo Municipal Court of El Copey, Cesar, through a judgment dated November 10, 2022, declared the tutela action inadmissible.
It argued that the occurrence of an irremediable damage that would make the temporary injunction appropriate had not been accredited and indicated that the administrative contentious jurisdiction had at its disposal the appropriate and effective mechanisms to claim the plaintiff's claims.
SECOND INSTANCE DECISION
The Third Civil Court of the Circuit of Valledupar, by decision of December 13, 2022, confirmed in its entirety the decision of the constitutional judge.
The office based its decision mainly on the fact that the procedural requirements of the tutela action were not accredited because there was no evidence of irremediable damage; It referred that the matter dealt with pension rights, so that the principle of the natural judge demands that one must go to another jurisdiction in order to make the corresponding claims and, additionally, it ordered the Ombudsman's Office for Children, Youth and Children of the Ombudsman's Office to initiate the pertinent steps in order to follow up on the case of the girl. The above in order to determine whether administrative or legal actions should be taken to protect her rights.
CONSTITUTIONAL COURT DECISION
The above file was subject to selection and distribution for review by the Constitutional Court, which, as previously reported, once it was processed, resulted in the revocation of the previous decisions and the granting of the protection of the fundamental rights claimed.
The Court of Review warned that the recognition and protection of the material relationship that arises within the family extends to all areas of law, so that foster children by joint and several assumption of paternity are beneficiaries of the survivor's pension and pension replacement, since Law 100 of 1993 establishes as beneficiaries the children of the deceased. Therefore, the expression "children" contained in literal b) of article 47 of Law 100 of 1993 must be understood in a broad sense, that is, including as beneficiaries the adopted, foster and foster children.
It added that the pension substitution will proceed in favor of foster children, as long as the conditions established by law for such substitution are met, so it is necessary to prove the assumptions that allow evidencing the existence of a foster family, which have been delimited by the Constitutional Court in the following terms (Judgment T-525 of 2016):
- Solidarity: This is the cause that motivated the foster parent to generate a closeness with the child that they decide to become part of the home and to whom they provide constant emotional and material support that is decisive for his or her adequate development.
- Replacement of the paternal or maternal figure (or both): refers to the substitution of consanguineous or civil ties by de facto relationships. Under this criterion it will be possible to observe whether the foster parent is related to the child, but it will not be decisive in the evaluation of the existence of the foster family, since in the search for the prevalence of substantial law, the foster family itself will be privileged, even if it comes from a relative. The Constitutional Court has recognized that although, in some cases there is no total substitution of the paternal or maternal figure, the person who assumes as his own the obligations that correspond to the parents of minors acts according to the principle of solidarity, becoming a foster co-parent by joint and several assumption of the paternity of the minor. (Decision T-014 of 2016.)
- Economic dependency. It is generated between parents and foster children that makes the latter unable to have an adequate development and decent living conditions without the intervention of those who assume the role of parents.
- Bonds of affection, respect, understanding and protection. These can be verified with the moral and emotional affectation that the members of the foster family suffer in case of being separated, as well as in the good family interaction during the day to day.
- Recognition of the parent-child relationship. This relationship should exist, at least implicitly, on the part of family members and should be easily observed by agents outside the home.
- Existence of a reasonable term of affective relationship between parents and children. The family relationship is not determined on the basis of a precise term, but must be evaluated on a case-by-case basis. It is necessary for a period of time to elapse in order to forge the bonds of affection.
- Affectation of the principle of equality. It is configured in identical legal consequences for foster families, as for biological and legal families, in terms of obligations and rights and, therefore, the correlative emergence of constitutional protection. To the extent that foster parents show through their actions a behavior that tends to comply with their obligations and duties for the protection and good development of their children, it will be clear that they act in similar conditions to the other families, and therefore they will be beneficiaries of equal rights and benefits.
From the foregoing, the Chamber indicated that no distinctions should be made by virtue of the nature of the family relationship between parent and child at the time of granting the recognition and payment of a pension allowance by substitution; that is, the state or private entities in charge of such recognition are prohibited from making distinctions between families, including those formed by de facto ties, since this would result in the violation of the fundamental rights that they have as part of a family group.
In any case, it insists that the fulfillment of the requirements established in the law for access to pension substitution must be analyzed and the configuration of the aforementioned requirements must be verified in order to prove the existence of the foster family.
Thus, on review, as the Court concluded that the represented minor fulfilled the characteristics to be considered as a foster child of her paternal grandmother. For this reason, the child was indeed entitled to all the social security benefits resulting from the death of her grandmother, since she was a foster child.
Therefore, it revoked the decisions under review, granted the protection of the fundamental rights to the minimum vital, to social security, to life in dignified conditions and to equality of the minor represented, and ordered the defendants to carry out in a coordinated manner the necessary steps for the recognition of the pension substitution of the deceased. Once the pension substitution was recognized, it ordered the payment together with the corresponding pension retroactive.
Is the expiration of the term of an employment contract an objective cause to terminate the employment relationship of an employee with a labor protection order? (Thesis of a Superior Court).
JUDICIAL DISTRICT: CUNDINAMARCA
TYPE OF PROCEEDING: ORDINARY LABOR
VENUE OR INSTANCE: APPEAL
DECISION DATE: NOVEMBER 2023
SUBJECT: FIXED-TERM CONTRACT, LABOR REINSTATEMENT, UNION PRIVILEGE
JUDGMENT: REVOKES JUDGMENT OF ACQUITTAL
SUMMARY OF THE FACTS
The plaintiff summoned the company to court to declare the existence of a fixed-term employment contract from November 5, 2019 to March 4, 2022, which had been automatically extended for one more year; that he was unfairly and illegally dismissed because the defendant did not give 30 days' notice prior to the termination of the employment relationship and this was ineffective since the employer ignored the validity of his status as aforementioned for the date of termination of the relationship and did not request authorization from the labor judge.
Consequently, it demanded reinstatement, indemnification for dismissal without just cause, payment of the labor credits caused from the time of dismissal until its reinstatement, the costs of the proceedings and whatever was proven ultra and extra petita.
He based his claims on the fact that he was hired by the defendant through a fixed-term contract of 4 months and that the company extended his contract for 3 continuous periods of 4 months and subsequently renewed it automatically from November 5, 2019 until March 4, 2022. On the other hand, he stated that his affiliation to the union took place on April 8, 2021 and that on November 7 of that year he was elected vice-president of the Sopó Subdirective, appointment that was notified to the defendant on November 9, 2021. However, the latter ignored the union guarantee and informed of the termination of the relationship until February 9, 2022, 24 days before the expiration of the term of the contract, date on which his contract had already been automatically extended.
The company's line of defense focused on accepting the existence of the fixed-term employment contract, its extensions and the temporary ends thereof. However, it argued that the contract was not renewed because the notice of termination was sent in a timely manner despite the employee's refusal to sign it, and therefore its termination did not require judicial authorization.
FIRST INSTANCE DECISION
The Second Labor Court of the Zipaquirá Circuit through a judgment dated October 18, 2023 declared that a fixed-term employment contract existed between the parties from November 5, 2019 until March 4, 2022 and acquitted the defendant and declared proven the exception of inadmissibility of the reinstatement for not being necessary the judicial permission.
SECOND INSTANCE DECISION
The Labor Chamber of the Superior Court of Cundinamarca, by decision of November 3, 2023, revoked the decision.
The Court based its decision mainly on the fact that although it is true that when analyzing the legal reasons for the lifting of the union privilege provided in Article 410 of the Substantive Labor Code, the expiration of the agreed term is not one of them, nor can this last situation be equated to the reasons set forth in that provision, it was necessary to examine whether the cause invoked is due to an objective cause or whether it conceals an act of union discrimination in the light of the theory of abuse of rights.
The Court pointed out not to ignore that the Constitutional Court, among others, in judgments T-1334 of 2001 and T-162 of 2009, and the Labor Cassation Chamber of the Supreme Court of Justice in judgments of March 25, 2009, radicado 34.142, STL9153 of 2014, SL6231 of 2016 and SL228 of 2023, among others; have held that the termination of the fixed-term employment contract of a worker with a fixed term, with invocation of the end of the agreed term and demonstration of the notice in the required time, does not require judicial qualification.
However, it considered that accepting this without any analysis of the true intention of the employer in order to examine whether, in the midst of an objective cause, it entails a discrimination to the right of union association, violates the right of association, since it would prevent or dissuade the union bases from electing as directors persons with fixed-term contracts, since they run the risk of being left without this director in the event that the company chooses to terminate the contract at the expiration of one of the extensions.
He argued that, in this situation, it is necessary to resort to the prevalence of the principles and criteria contained in the constitutional provisions, as well as in the international norms, especially ILO Conventions 87 and 98, in that order, it is essential to verify if the intention of the employer upon termination of the contract due to the expiration of the agreed term of the employee under the labor union is to affect the union organization.
Thus, it resorted to the provisions of Ruling C-033 of 2021 in which the Court determined that the guarantee of union privilege admits, from the constitutional point of view, legitimate exceptions and restrictions, based on two criteria: i) " in the case of objective situations or circumstances of termination of the labor or public employment relationship, since they are not true decisions arising from the will of the employer, the lifting of the union privilege will not be required, considering that, in such hypotheses, of an objective nature, it is not necessary to foresee an employer's act of union persecution" and; ii) regarding "the nature of the labor or public employment relationship exercised by the union representative and which is incompatible with the reinforced labor stability derived from the union privilege (....).In these cases, the termination of the labor or public employment relationship for reasons related to the nature of such relationship is, in itself, a just cause, which does not require judicial qualification, as it is the consequence of the nature of the relationship".
Having stated the foregoing, it focused on the second criterion and specified that the Court refers in general to the cases contained in Article 411 of the Substantive Labor Code, without specifically mentioning fixed-term employment contracts; In addition, the Court emphasized that these are employment relationships in which the parties know in advance that their labor or public employment relationship is not intended to be permanent, a circumstance that cannot be inexorably predicated of fixed-term contracts, since such permanence is given to the extent that the parties may renew them successively and indefinitely in time and, consequently, the employment relationship is not interrupted but is carried out without solution of continuity.
Thus, for the Court, in the present case, it was not enough to invoke the mere expiration of the agreed term, but it was necessary to prove that the causes that gave rise to the employment contract disappeared, as occurs in cases of employment stability due to health protection; Or another reason that would allow to glimpse that it was not possible to give continuity to the labor relationship, or even to verify if such decision of the employer was not used to produce an affectation to the right to unionize, or that such termination of the labor relationship was not produced by the worker's affiliation to a union or by his appointment to the union's board of directors.
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Is the expiration of the term of an employment contract an objective cause to terminate the employment relationship of a worker with a labor protection status? (Thesis of the Supreme Court of Justice).
JUDICIAL DISTRICT: BOGOTÁ D.C.
TYPE OF PROCEEDING: TUTELA ACTION
VENUE OR INSTANCE: CONTESTATION
DECISION DATE: NOVEMBER 2023
SUBJECT: FIXED-TERM CONTRACT, LABOR REINSTATEMENT, UNION PRIVILEGE
JUDGMENT: REVOKES JUDGMENT
SUMMARY OF THE FACTS
The plaintiff company filed a tutela action against the Labor Chamber of the Superior Court of Bogotá, seeking protection of its fundamental rights to equality, due process, contradiction, good faith and access to the administration of justice, allegedly violated by the judicial authority in question, considering that the latter incurred in an erroneous interpretation of article 411 of the Substantive Labor Code, as well as in the disregard of judicial precedent, by giving the connotation of dismissal to the termination of an employment relationship due to the expiration of the agreed fixed term.
He based his claims on the fact that one of his employees filed a lawsuit for union privilege against him with the purpose of declaring the ineffectiveness of his dismissal due to the lack of prior authorization by a labor judge, given his status as aforesaid; that the matter was heard by the Thirty-seventh Labor Court of the Circuit of Bogotá, authority that resolved to acquit the defendant with respect to all the claims formulated. However, dissatisfied with such determination, the plaintiff filed an appeal, which was dismissed by the Superior Court of Bogotá, which revoked the first degree decision, omitting that the appointment of the employee as union officer took place after the delivery of the notice and that this was not a dismissal but a termination of the labor relationship due to the expiration of the fixed term agreed upon.
The line of defense of the Court focused on arguing the legality of the disputed decision. It argued that the employer was obliged to request the corresponding judicial permission to proceed with the dismissal, since it could not simply rely on the type of contract entered into and, although an objective cause was analyzed in accordance with Articles 410 and 411 of the Substantive Labor Code, the reality was that, in the case under study, a real discriminatory motive was hidden since, once the worker became a member of the union organization and, subsequently as an officer of it, the employer decided to resort to the fixed term agreed to terminate the labor relationship after more than nine years of continuous service, from which it was concluded that behind this legal cause, to separate him from the activities initially contracted, a discriminatory act was camouflaged.
DECISION OF THE SUPREME COURT OF JUSTICE
The Labor Cassation Chamber of the Supreme Court of Justice, through a decision of November 22, 2023, granted the protection invoked and annulled the challenged decision so that, in its place, the challenged authority would issue a new decision, in accordance with the law and with observance of the considerations made.
The Chamber based its decision, mainly, on the fact that the Court incurred in a factual defect by not making a correct assessment of the evidence submitted to the plenary; The above, since, throughout his dissertation, he stated that the expiration of the agreed term cannot be configured as an objective cause for the termination of the contract in those cases in which "the union privilege of the directors of these organizations is involved", and although the worker was indeed appointed as a union director, he considered that the Collegiate Court omitted to consider the fact that the accused omitted to establish the objective cause for the termination of the contract in those cases in which "the union privilege of the directors of these organizations is involved", he considered that the Collegiate omitted to analyze that such appointment was made as of March 17, 2020, that is, after the delivery of the notice letter (March 2 of the same calendar year), so that by the date on which the worker was informed of the termination of his contract, he did not have such status.
Now, regarding the guarantee of labor stability provided to the worker with union privilege linked through a fixed-term contract, he refers that this guarantee cannot be extended beyond the expiration of the agreed fixed term and, to support this, he referred to the provisions of SCL 34142 of 2009, CSJ STL2833 of 2019, CSJ STL6790 of 2020, CSJ STL310 of 2020 and CSJ STL10110-2023, in which it has been indicated that:
"[...] all the guarantees derived from the union privilege must be complied with and respected by the employers during the term of the contract, in the case of fixed-term contracts. Hence, no judicial authorization is required to terminate a fixed-term labor contract, in the event that the worker has the guarantee derived from the union privilege.
Thus, the Court reiterated that Article 411 of the Substantive Labor Code indicates that prior authorization is not required to terminate the contract of those employees whose labor relationship is terminated due to the completion of the work or labor for which they were hired or due to the fulfillment of the agreed term, as in the case under analysis.
Additionally, he brought up the position of the Constitutional Court in different rulings such as T-116 of 2009 and T-592 of 2009, in which it has held that the employer is not obliged to renew the fixed-term contract, with respect to workers who are subject to the law, as long as the legal requirements and conditions for its termination are met.
Therefore, the Chamber concluded that the principle of judicial independence and rational assessment, which is primarily the responsibility of the judges, was circumvented by the decision of the Labor Chamber of the Superior Court of the Judicial District of Bogotá, when it made an interpretation that evidently ignored several pronouncements of the specialized Chamber in labor matters that have found reasonable and in accordance with law, all those decisions adopted by the Courts of the matter that have denied the reinstatement in cases of similar nature because the agreed term was fulfilled.
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