How can the natural disasters that currently touch our cities and towns affect the fulfillment of our labor obligations? What has the labor legislation foreseen in these cases?
Certain situations can arise and make it impossible to fulfill obligations due to causes beyond the control of the employer and the worker, thus preventing both parties from satisfying the interest that motivated them to enter into the employment relationship. This is caused by extraordinary and insurmountable circumstances, which exempt the obligor from liability and which are described as a fortuitous event or force majeure.
Article 21 of the Regulation of the Employment Promotion Law, approved by Supreme Decree N ° 001-96-TR, indicates that the fortuitous event or force majeure is configured when the event invoked has an inevitable, unforeseeable or irresistible character and make it impossible to continue the work for a certain time. Force majeure is related to exogenous events that are irresistible, although they could be foreseen (for example, natural phenomena, wars).
Is the employer entitled to suspend or terminate the employment relationship in the event of unforeseeable circumstances or force majeure?
The labor legislation expressly states that in case of accident or force majeure, the suspension and termination of the employment contract is justified. In fact, the fortuitous or force majeure event entitles the employer to suspend work up to a maximum of 90 days, and must communicate this decision to the Labor Administrative Authority (AAT). During this time a perfect suspension occurs; That is, the worker will not perform the tasks for which he has been hired, nor does the employer have to pay the agreed remuneration. However, if possible, the regulations postulate that the employer will grant holidays due or anticipated and, in general, must take measures that reasonably avoid aggravating the situation of workers.
On the other hand, if the unforeseeable event or force majeure were of such magnitude as to imply the total or partial disappearance of the work center, the employer may, within the said suspension period, request the termination of the respective individual work contracts without having to Pay any compensation, for which it must follow a specific procedure before the AAT.
What is the treatment of the employee’s delays and absence due to fortuitous event or force majeure?
Although there is no normative device that determines a special treatment in the event that the worker arrives late or fails to his work center by accident or force majeure, in application of the principle of reasonableness we can conclude that before these facts the delays or Absences should be considered by the employer as justified.
Naturally, the worker must objectively demonstrate to his employer which was the event that prevented the fulfillment of his obligation to attend the workplace, unless this is evident.
In spite of this, in general terms, the employer does not have the duty to grant the remuneration because there was no effective provision of service by the worker.
It should be added that the Ministry of Labor and Employment Promotion (MTPE), in the event of certain events that may impede the normal development of labor relations, issues communiqués calling on employers to adopt flexible measures to recover hours left to work by the worker. In relation to the recent events that the Perù is suffering, the MTPE has ordered that the days and hours left to work as a result of these events, from 17 to 24 March, will not be considered as unjustified absences or delays; However, this time out of work must be compensated.