Summary.
This article analyzes the suspension of the effects of employment contracts in the Dominican Republic, as outlined in Title V of Book I of the Labor Code. It examines the grounds for suspension, its implications and effects, and the process for resuming employment contracts. The article also highlights the importance of communication between employers and employees and the role of the Department of Labor in regulating these processes.
Introduction.
In the Dominican Republic, the Labor Code regulates labor relations, including the suspension of the effects of the employment contract. Suspension is a legal concept that implies the temporary interruption of the obligations of both the employer and the employee, without terminating the contract. Title V of Book I of the Labor Code establishes the causes and effects of suspension, as well as the procedure to follow if it becomes necessary to resume the employment contract.
While it is true that suspending the effects of an employment contract is legal, provided that the procedures established in our legislation are followed, this legal mechanism has significant implications for the interests of both workers and employers.
Causes of suspension of the effects of the employment contract.
Article 51 of the Labor Code establishes twelve grounds for suspension of the effects of an employment contract. These grounds can be voluntary, such as the mutual consent of the parties (item 1), or involuntary, such as unforeseen circumstances or force majeure (item 4). Some of the grounds for suspension include maternity leave, compliance with legal obligations, the detention of the worker, contagious disease, workplace accidents, lack of raw materials, the unprofitability of the business, strikes, and legal work stoppages, among others.
The following details each of the causes for suspension of the effects of the employment contract in the Dominican Republic, according to Article 51 of the Labor Code:
- Mutual consent of the parties: When an employer and employee voluntarily agree to temporarily suspend the contract, both parties are released from their respective obligations. For the suspension of the effects of the employment contract for this reason, it is not necessary to take any further action. DGT-9. However, if the suspension is to last for a period longer than two (2) business days, it is prudent for the parties to make a declaration before a notary public in order to prove that the suspension is due to their mutual consent.
- Maternity leave for working women: The suspension is in place to guarantee the maternity leave period established in Article 236 of the Labor Code. This reason is well-defined and stems from the maternity leave protections afforded to female workers in the Dominican Republic.
- Compliance with legal obligations: When an employee must fulfill a legal obligation that temporarily prevents them from providing their services, such as military service or attending a trial as a witness. We will write an article about this cause for suspension in the future, as it is the most confusing point of Article 51.
- Unforeseen circumstances or force majeure: The suspension occurs when unforeseeable and unavoidable events, such as natural disasters or social conflicts, temporarily interrupt work activities.
- If you want to learn more about this cause of suspension, you can read this article: Maternity Protection in the Dominican Republic: Rights and Benefits according to the Labor Code and Law 87-01
The COVID-19 pandemic is a clear example of a force majeure situation that affected labor relations worldwide.
The COVID-19 pandemic emerged in late 2019 and spread rapidly worldwide, generating an unprecedented health crisis in the modern era. Governments around the world implemented measures to curb the spread of the virus, such as border closures, travel restrictions, and quarantines. These measures, along with fear of infection and the need to protect public health, led to the disruption of many economic and work activities.
The consequences of the COVID-19 pandemic on labor relations were numerous and varied. Some of the most relevant include:
- Interruption of work activities: Many businesses had to close temporarily or permanently due to government restrictions or the risk of contagion. This led to the suspension of employment contracts in numerous cases.
- Increased unemployment: The shutdown of economic activity and the closure of businesses led to an increase in unemployment rates globally.
- Implementation of teleworking: Faced with the need to maintain work activities and reduce the risk of contagion, many companies and employees adopted the telecommuting as a temporary or permanent solution. This generated changes in work dynamics and work organization.
- Changes in working conditions: The pandemic also led to the renegotiation of working conditions, such as salary reductions or the implementation of flexible working hours, to adapt to the exceptional circumstances.
- Modification of labor laws: In many countries, temporary government measures were implemented to protect both employers and employees, such as subsidies, financial assistance programs, and changes to labor regulations.
In the context of the COVID-19 pandemic, the suspension of the effects of the employment contract due to force majeure allowed employers and employees to adapt to the extraordinary situation, protecting the employment relationship and enabling the resumption of the contract once the health crisis was over.
In that exceptional context, the Dominican government created the Employee Solidarity Assistance Fund (FASE), to support suspended workers and prevent mass business bankruptcies.
- Detention, arrest or preventive detention of the worker: The suspension applies when the worker is arrested or temporarily imprisoned, provided that the final sentence acquits him, discharges him or condemns him only to pecuniary penalties.
Detention, arrest, or pretrial detention refers to situations in which a worker is deprived of their liberty by order of judicial authorities, either as a result of an ongoing investigation or as a precautionary measure while their legal situation is resolved. During this period, the employer is not obligated to pay the worker's salary, as the employment contract is suspended.
It is important to mention that, according to article 53 of the Labor Code, the preventive detention of the worker caused by a complaint from the employer or by a cause beyond the will of the worker, but not beyond the will of the employer, that caused by an unintentional act of the worker committed during the exercise of his functions or by an act carried out in defense of the employer or his interests, will not release the employer from his obligation to pay the salary if the worker is acquitted or declared innocent.
This means that if a worker's pretrial detention is the result of actions by the employer or is related to the performance of their job duties, the employer must continue paying the worker's salary if the worker is ultimately acquitted or declared innocent. This provision aims to protect workers' rights in situations where their detention is linked to work-related circumstances and not to misconduct on their part.
- Contagious disease or temporary disability: The suspension occurs when the worker suffers from a contagious disease or any other disease that temporarily prevents him from performing his duties.
- Work accidents with temporary disability: The suspension applies when the worker suffers a work accident under the conditions and circumstances provided for and protected by law, provided that the incapacity is temporary.
- Lack or insufficiency of raw materials not attributable to the employer: The suspension occurs when the company does not have enough raw materials to continue production, provided that it is not the employer's fault.
- Lack of funds for the normal continuation of work: The suspension applies when the employer fully justifies the impossibility of obtaining the necessary funds to maintain work operations.
- Excess production in relation to the company's economic situation and market conditions: The suspension occurs when the company produces more than the market demands, negatively affecting its economic situation.
- Unprofitability of operating the company: The suspension applies when the company cannot continue operating due to a lack of economic profitability.
- Legally qualified strikes and work stoppages: The suspension occurs when workers exercise their right to strike or work stoppage legally, temporarily interrupting work activities.
Each of these causes of suspension seeks to protect the interests of both the employer and the employee, ensuring that working conditions are adapted to the circumstances and allowing the resumption of the contract once the cause of suspension has ceased.
When the suspension occurs due to the causes contemplated in ordinals 4, 8, 9, 10 and 11, the employer is obliged to fill out a form called DGT-9, through which he will state the general information of each suspended worker, the cause that generates the suspension and the time for which he is requesting the suspension.
If the employer is able to resume work before the requested suspension period, they may create a form called DGT-12, which notifies the cessation of the suspension.
These requests are made through the Ministry of Labor's Virtual Office, available on the Integrated Labor Registry System (SIRLA). Once the suspension request is received, an inspector will be assigned to verify its validity.
After the assigned inspector submits his report, it will be sent to the General Directorate of Labor so that the general director of labor can issue a resolution either accepting or rejecting the request.
Effects of the suspension of the effects of the employment contract.
The suspension of an employment contract in the Dominican Republic has implications for both employers and employees. According to Article 49 of the Labor Code, suspension does not terminate the contract nor does it affect the liability of either party. Some of the main effects of suspension are detailed below:
- Release from obligations: During the suspension of the contract, the worker is released from providing his services and the employer from paying the agreed remuneration, unless otherwise provided by law, the collective agreement of working conditions or the contract (Art. 50).
- Maximum suspension duration: In some cases, such as those provided for in items 4, 8, 9, 10, and 11 of Article 51, the maximum duration of the suspension will be ninety days within a twelve-month period. If the employer requires an extension of the suspension, the Department of Labor has the authority to grant it if the causes that gave rise to the suspension persist (Art. 55).
- Obligation to notify: The employer must notify the worker and the Department of Labor in writing of the suspension, within three days of its occurrence, indicating its cause and duration, and attaching to the request the documents that justify it (Art. 55).
- Termination of the suspension: The suspension ends with the cause that motivated it. The employer or their heirs must immediately resume work by notifying the Department of Labor, which will be responsible for informing the workers (Art. 59).
- Reinstatement of the worker: The employee is obligated to return to work once the suspension has ended. If the employee does not report to work within the period established by law, they will be considered in violation and subject to the penalties corresponding to unjustified absences (Art. 61).
- Temporary replacement: In certain cases, such as those announced in items 1, 2, 3, 5, 6, and 7 of article 51, the employer may appoint a substitute for the duration of the worker's absence (Art. 57).
These effects seek to balance the interests and responsibilities of both parties during the suspension of the contract, protecting the worker in situations that prevent him from providing his services and safeguarding the employer from assuming costs not attributable to his management.
Resumption process.
Article 59 of the Labor Code states that a suspension ends when the cause that motivated it ceases. The employer or their successors must immediately resume work by notifying the Department of Labor, which will then inform the workers. If the employer does not resume work despite the cause having ceased, the Department of Labor may declare that the suspension has ended (Article 60). The worker is obligated to return to work within a specified period; otherwise, they are considered in breach of contract and subject to penalties (Article 61).
- You can learn more about the employee's right to resign in this article: Labor resignation in the Dominican Republic according to the Labor Code, Law 16-92
Communication between employer and employee.
The Labor Code emphasizes the importance of communication between employer and employee during the suspension and resumption of the employment contract. The employee is obligated to notify the employer of the reason preventing them from attending work within twenty-four hours of the event justifying the suspension (Article 58). Furthermore, the employer must notify the employee and the Department of Labor in writing of the suspension, its cause and duration, as well as the resumption of work (Articles 55 and 59).
Role of the Department of Labor.
The Department of Labor plays a crucial role in regulating the suspension and resumption of employment contracts. This entity is responsible for verifying the existence of the grounds for suspension alleged by the employer (Article 56), as well as granting extensions if the grounds for suspension persist (Article 55). Furthermore, the Department of Labor is responsible for notifying employees of the resumption of work (Article 59) and, if necessary, declaring that the suspension has ended (Article 60).
Conclusion.
The suspension of the effects of the employment contract in the Dominican Republic, regulated in Title V of Book I of the Labor Code, is a legal concept that allows the temporary interruption of the obligations of the employer and the employee without this implying the termination of the contract.
The reasons for suspension can be varied and are generally related to situations that temporarily prevent the employee from providing services. Communication between employer and employee and the role of the Department of Labor in regulating these processes are key aspects to ensuring compliance with the rights and obligations of both parties during the suspension and resumption of the employment contract.
