March 04, 2019
Marco Durante / firstname.lastname@example.org
Managing Partner BDS Asesores
Our country does not have yet a special law on telework; however, many employers have already implemented this employment arrangement internally for different reasons: saving physical space, avoid workers to spend long hours stuck in traffic, or simply as a benefit to attract and retain talent.
One of the major challenges and fears of employers as a result precisely of this lack of regulations consists in knowing how they can or must exercise employers’ managerial, inspection and disciplinary powers.
Among the many questions frequently raised by employers, they wonder how they may discipline teleworkers when the employer is unable to see the day-to-day results of their work, or when it seems that such teleworkers are not performing their job at all. In these cases, are employers allowed to discipline them for unjustified absences? Or are we in the presence of job abandonment?
Differentiating between both concepts is paramount in order to determine whether the behavior of a telework employee falls within any of the aforementioned misconducts. Labor-wise, job abandonment may refer to the interruption or disregard of the job duties agreed upon as part of the obligations set forth in the relevant employment agreement, without the employer’s authorization or without cause. Thus, for a situation to qualify as job abandonment, firstly it would be necessary that the employee has reported for work and then during his/her work shift the employee has stopped performing his/her duties without cause. On the other hand, an absence involves a situation where an employee did not report for work without the employer’s authorization or without a valid reason.
A decision from the Labor Chamber of the Supreme Court (No. 2018-000539) was recently published not only confirming that employers’ disciplinary power remains intact in case of telework, but also providing for parameters to exercise said power and determine in what cases teleworkers’ behavior might qualify either as unjustified absence or as job abandonment.
Thus, and based on a distinction between each of these infringements and the aforementioned precedent of the Supreme Court included in the above referred ruling, when it comes to telework we may consider that an employee is absent when he/she must connect to a technological platform and he/she fails to do so during the entire work shift; when the teleworker fails to respond his/her emails at all; when he/she fails to communicate at all with his/her supervisor, or if it is impossible to reach him/her and has not performed any of his/her assigned duties, all of this to the extent the employee has failed to provide a valid reason for said infringements. In these cases, the employer may discipline the employee’s behavior as an unjustified absence, whether through a written reprimand or when these situations occur for two consecutive days or at least within three non-consecutive days within the same calendar year, in which case the employer will be entitled to dismiss the employee on grounds of Article 81 (g) of the Labor Code.
Moreover, we will be in presence of job abandonment if, despite being connected to the respective platform and performing some his/her duties, this is not sufficient to determine that the teleworker has been performing his/her duties during the entire workshift, which may be construed as a situation in which the employee has disregarded his/her duties in an unjustified manner. In this case, the employer may discipline the employee by warning reprimand according to Article 72(a) of the Labor Code, being entitled to resort to termination in case of recurrent behavior for a second occasion, pursuant to Article 81(i) of the Labor Code.
For purposes of the proper application of the disciplinary power, it is important for companies to ensure they have sufficient technological and telecommunications means to exercise an appropriate supervision of job duties in case telework is implemented. Also, it is very important that before the implementation of this employment arrangement, the company has any necessary internal regulations ensuring that both parties are aware of the terms and conditions that will apply during telework.
Distance is not an obstacle for employers to supervise and oversee the optimal performance of their teleworkers, although it is important to ensure that the “game rules” are clearly set to avoid contingencies in case the employer is required to exercise its disciplinary powers on the employee.