Constitutional Court Ruling: Organic Law on Humanitarian Support
Constitutionality of the Sole Interpretative Provision of the Organic Law on Humanitarian Support to Combat the Health Crisis resulting from COVID-19
In 2020, several judges from different Judicial Units suspended the processing of the case of which they took cognizance in order to submit to the Constitutional Court for consultation regarding the constitutionality of the Sole Interpretative Provision of the Organic Law of Humanitarian Support to Combat the Health Crisis derived from COVID-19, published in the Supplement to the Official Gazette No. 229 of June 22, 2020.
| RULE INTERPRETED | Labor Code. Art. 169 Causes for the termination of the individual contract. – The individual employment contract terminates: (…) 6. Due to acts of God or force majeure that make the work impossible, such as fire, earthquake, storm, explosion, plagues in the countryside, war and, in general, any other extraordinary event that the contracting parties could not foresee or, if foreseen, could not be avoided. |
| INTERPRETATIVE PROVISION | “In these cases, the impossibility of performing the work due to an act of God or force majeure shall be linked to the total and definitive cessation of the economic activity of the employer, whether a natural or legal person. This means that there will be impossibility when the work cannot be carried out either by the usual physical means or by alternative means that allow its execution, not even by telematic means”.
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The relevant aspect of this interpretative provision is that it incorporates two new elements in addition to unforeseeability and irresistibility that must be considered when applying this article: 1) the total and 2) definitive cessation of the employer’s economic activity.
According to the analysis made by the Constitutional Court, the incorporation of these two requirements is incompatible with the element of “foreseeability” inherent to the principle of legal certainty, since it affects the expectations of how the law should be applied and interpreted, because the behavior of individuals did not foresee these introduced elements, in such a way that the employers could not foresee them at the time they invoked the cause of fortuitous event or force majeure to terminate the employment relationship.
In these particular cases analyzed by the Constitutional Court, it was verified that the dismissals occurred before the entry into force of the law in question, so the Court ruled that the judges of the cases submitted for consultation do not apply the Single Interpretative Provision and likewise that the Interpretative Provision will not be applicable to cases pending or arising from termination of employment under force majeure or fortuitous event prior to the entry into force of the Humanitarian Support Law.