ALL Estrado - New jurisprudential precedent on reinforced labor stability in health in light of the social model of disability.

The Supreme Court of Justice changed the jurisprudential precedent of the reinforced labor stability of Article 26 of Law 361 of 1997, adopting the social model of disability on the occasion of Statutory Law 1618 of 2013 and the Convention on the Rights of Persons with Disabilities. In that order of ideas, the scope of the privilege under this new perspective, protects workers who have medium or long term impairment or disability that entail effective limitations in the development of their work (understood as barriers). This implies that the employer is restricted in the termination of the employment relationship if he is aware of the disability situation, if he does not adopt measures to overcome the barriers. In this case, the employer will have to go to the Ministry of Labor to obtain authorization to terminate the employment relationship.  

Synthesis of the process

The plaintiff summoned the company to trial for a declaration of an employment contract since 08/22/1994; likewise, at the time of termination she enjoyed the reinforced labor stability enshrined in Article 26 of Law 361 of 1997 for suffering from a "serious and chronic illness" and in that sense to leave without effect the resignation submitted on 10/10/2017. Likewise, that it be declared that he signed the coerced resignation and, therefore, the labor relationship is in force. Consequently, he requested the "reinstatement to the position he had been performing or to one of equal category that takes into account his health condition, together with the payment of the penalty of 180 days of salary" established in the referred regulations, the indemnity of Article 64 of the Substantive Labor Code, indexation, extra or ultra petita and the costs of the process.

She based her claims on the fact that she worked for the summoned company since 08/22/1994; that she worked in a responsible and efficient manner; that in 2012 she was diagnosed with "bilateral multicentric breast cancer" . On 07/13/2012, she underwent a "bilateral mastectomy" consisting of "removing the entire breast" and its respective reconstruction, receiving chemotherapy since then and until early 2014, being highly invasive and disabling. In April 2014 she had another surgical intervention, as well as in the months of March 2015, June 2016. However, in May 2017, she presented a "Becker grade IV/IV capsular contracture" -maximum level on the scale- and was diagnosed with "possible recurrent seromona".

At the date of filing of the lawsuit, she continued under reconstructive treatment of her prostheses until obtaining the optimal physiological conditions; that during that period she suffered from severe pain in the area, which, even affected her emotionally; that by medical certification of 2/02/2017, the internist physician established that she was still a breast cancer patient and, therefore, she should continue under treatment with "hormonal and anti-estrogen drugs" for 10 years to control the disease.

He indicated that, given the "pressure" exerted by the company, and due to the "state of manifest weakness" in which he was, he submitted voluntary resignation and signed a withdrawal agreement, as he argued that on 10/10/2017, he was notified of the decision to terminate his employment, for which he was offered: (i) to mutually terminate the contract with her voluntary resignation under a "professional outplacement" plan, which for its validity had to be endorsed and verified by a labor judge, or (ii) to unilaterally terminate the contract by the employer, in exchange for the recognition of compensation for unfair dismissal. She indicated that after knowing the legal consequences of her decision, she retracted it in accordance with article 26 of Law 361 of 1997, however, she was summoned to validate it before the labor judge. She filed a tutela which in the second instance ordered the temporary reinstatement for 4 months, while the plaintiff pursued the ordinary proceeding.

The company's line of defense pointed out that the requested reinstatement was inadmissible, since the employment contract was terminated by voluntary resignation and, in addition, the plaintiff did not hold the status of a subject of special protection, since her illness never interfered in the exercise of her activities and upon resignation she had no incapacities, since the last one she presented was on 9/10/2016 for 10 days. Neither was she in the process of qualification of loss of labor capacity or processing of recognition of disability pension. He added that in compliance with the tutela action the plaintiff was reinstated without alteration or difficulty for her work, so that being under medical treatment did not mean that she was the beneficiary of any regulatory guarantee. She added that several of the medical concepts presented were subsequent to the termination of the labor relationship, as well as the treatments after this date were unknown.

He noted that on October 12, 2017, the plaintiff after requesting a meeting to renegotiate the terms of the agreement signed, went to the company and proposed the recognition of a higher amount for retirement bonus, a statement to which the summoned refused, reason why the latter decided to "threaten" to sue them.

He proposed the exceptions of merit that he called: "inexistence of the obligations that are intended to be deduced in the lawsuit against the defendant company", collection of what is not due, good faith, bad faith on the part of the plaintiff, payment, statute of limitations, compensation and the "generic" one.

First instance decision

The Fifth Labor Court of the Circuit of Bogotá, through a judgment of August 21, 2019, declared proven the exception of non-existence of the obligation that the defendant filed, the effectiveness of the waiver filed on October 10, 2017, and acquitted the defendant of all the claims filed by the plaintiff in the initial brief, the last one to whom it imposed costs.

Second instance decision

The Labor Chamber of the Superior Court of the Judicial District of Bogotá, by decision of November 26, 2019, confirmed the first instance decision. It did not discuss the linking of the plaintiff as technology project leader between 08/22/1994- 10/10/2017, as well as the order of reinstatement by the Judge of Tutela. The Court, considered the resignation of the plaintiff of 10/10/2017, as well as of the minutes of termination of the contract by mutual agreement, recording the voluntary resignation and the payment of the agreed emoluments. Likewise, the appeal took into account the document of 12/10/2017 in which the plaintiff retracted the decision to resign and sign the termination act, considering it ineffective after stating that they were signed under pressure in view of her reinforced labor stability.

In this regard, the Court referred to CSJ SL 41490 of August 9, 2011, which states that the employee who alleges indirect dismissal for just causes attributable to the employer, has the burden of proving them. It also stated that Article 66 of the CST indicates that the party that unilaterally terminates the employment contract must state the cause or reason for such termination, and may not allege other different causes at a later date. The record did not show that there was an error, force or fraud that vitiated the consent of the plaintiff in deciding to unilaterally terminate the employment contract.

Regarding the reinforced labor stability and the requested reinstatement, the Court recalled the jurisprudence of the Supreme Court of Justice (CSJ SL, Sep. 18, 2012, rad. 41845; CSJ SL, Mar. 16, 2010, rad. 36115; CSJ SL, Mar. 25, 2009, rad. 35606) providing that for its application it is required (i) a moderate limitation that corresponds to the loss of working capacity between 15 and 25%, severe, greater than 25% but less than 50% loss of working capacity, or profound, when the degree of disability exceeds 50%; (ii) the knowledge of the health condition by the employer; and (iii) that the termination of the employment relationship occurs due to its "physical limitation" and without prior authorization from the Ministry of Labor.

The Court considered that the plaintiff's illness was not enough, but that she had to prove a moderate physical, psychological or sensory limitation, with a loss of working capacity of 15%. Since said report was not in the file, nor was there any other summary proof that the termination of the relationship was due to the illness, or that she was disabled at the time of the loss of working capacity, and the resignation was observed as voluntary and free of defects, it was found that the authorization of the Ministry of Labor was not necessary.

Cassation Decision

Against the above judgment issued by the Labor Chamber of the Superior Court of the Judicial District of Bogotá D.C., the plaintiff filed an appeal in cassation, which, as informed above, once submitted, resulted in NO CASA the judgment issued by the Labor Chamber of the Superior Court of the Judicial District of Bogotá on November 26, 2019.

The Chamber noted the following regarding the disability criteria and the labor stability protection established in Article 26 of Law 361 of 1997.

On the occasion of the block of constitutionality, and in particular the Convention on the Rights of Persons with Disabilities and its Optional Protocol of 2006, approved through Law 1346 of 2009 in force since June 10, 2011, as well as the Constitutional Court Ruling C066-2013, the Labor Cassation Chamber reexamines the rights of persons with disabilities, pointing out that said norm is binding with respect to the concept of disability, as well as the protection of stability contained in Article 26 of Law 361 of 1997, constituting a parameter of interpretation of the human rights of persons with disabilities contained in the constitution, as well as the measures of social integration in equal opportunities of other persons.

In this regard, he pointed out that according to Article 1(2) of the Convention, "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others ".

He also found that:

Discrimination on the basis of disability" shall mean any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including the denial of reasonable accommodation (Art. 2, para. 4).

Such provisions were considered consistent with Law 1618 of 2013, being provisions that aim to prevent discriminatory dismissals based on a disability situation that may arise when a worker with a physical, mental, intellectual or sensory impairment, in the medium and long term, when interacting with the work environment is hindered in the effective exercise of their work on equal terms with others.

Thus, it considers that the requirement of a percentage of disability in the terms provided in Article 7 of Decree 2463 of 2001 is compatible for those cases that occurred prior to the entry into force of the Convention on the Rights of Persons with Disabilities on June 10, 2011 and the statutory law 1618 of 2013.

Scope of Article 26 of Law 361 of 1997 in the light of the Convention on the Rights of Persons with Disabilities

Thus, for the Court, the protection of reinforced labor stability referred to in Article 26 of Law 361 of 1997, in the light of the analyzed convention, is determined by the following concurrence: a) The existence of a physical, mental, intellectual or sensory impairment in the medium and long term (understood by impairment, according to the ICF, "problems in bodily functions or structures such as a significant deviation or loss"); b) The barriers for the worker that prevent him from effectively performing his work under equal conditions, (which may be attitudinal, social, cultural or economic barriers, among others); and c) That these elements are known by the employer at the time of dismissal, unless they are notorious for the case.

In the same way, the Court points out that there is no evidentiary rate to demonstrate the above postulates. However, it proposes to review at least three aspects: i) the impairment, limitation or disability in the medium or long term - human factor; ii) the contextual analysis of the position, functions, demands and requirements of the same; and iii) the relationship between the impairment or limitation with the position in the work environment.

The Court concludes that:

"It is important to reiterate that in order to dismiss a person with a disability it is necessary to request prior permission from the Ministry of Labor; otherwise, a presumption of discriminatory dismissal is triggered, which can be rebutted in court by the employer (CSJ SL1360-2018). In such a case, in a judicial process the parties are concerned with the following:

• In order to request the protection of Article 26 of Law 361 of 1997, the worker must demonstrate that he/she had a disability (impairment plus labor barrier, in the terms previously described) and that the employer knew of such situation at the time of retirement or that it was notorious.

• In order to rebut the presumption of discriminatory dismissal, the employer must prove that it made the reasonable adjustments and, if it was unable to do so, demonstrate that they were a disproportionate or unreasonable burden and that the employee was informed. Likewise, it can prove that an objective cause, just cause, mutual agreement or free and voluntary resignation of the employee was fulfilled.

On the other hand, the Corporation recalls that the employer may terminate the contractual relationship if an objective cause or just cause is met and taking into account that in light of the Convention on the Rights of Persons with Disabilities it must also demonstrate that reasonable accommodation was made, or that it was not made because it was disproportionate or unreasonable."

In addition, the Court was emphatic in pointing out that the protection of Article 26 of Law 361 of 1997 is only applicable to persons with medium and long term deficiencies or limitations, in the terms of the provisions of the Statutory Law and the Convention, proscribing its application to persons with temporary or transitory limitations or deficiencies, since these are not configured with the observed disability.

For these reasons, and with respect to the specific case, it did not find support for the claims of the lawsuit, and did NOT CASE the acquittal.