Non-payment of Wages.
Occasionally the employer for some reason fails to pay the salary on the date previously agreed with the employee in the contract, this payment can be weekly, biweekly or monthly.
Failure to pay on the agreed date would generate the default, but as such, the Labor Code does not indicate a consequence or a penalty for the employer who does not pay wages to its workers in a timely manner, what it did stipulate in the Labor Code is that the employer must pay in a timely manner. article 57 of the same, in numeral 4, which establishes that the employer must “pay the agreed remuneration in the agreed conditions, periods and places”.
Although there is no sanction stipulated in the CST, this does not mean that the breach of this obligation is without consequences, since, according to Article 62 termination of the contract for just cause, paragraph 6 of literal B establishes that the employee may terminate the contract for just cause for a “systematic breach without valid reasons by the employer, of its conventional or legal obligations”.
From the supreme court of justice in sentence 51999 of September 19, 2018, we can state three specific conclusions, which consist of:
- The amount of the salary for which payment has not been made is immaterial.
- The delay need not be months.
- Payment after the termination of the contract does not cure the cause of termination.
Now, if the salary is not paid at the agreed times, then there would be a natural breach of the labor contract, which leads to the employee having the right to resign with just cause, this constitutes an indirect dismissal which has as a consequence for the employer the payment of compensation. For this, the employee who decides to resign alleging as a reason or cause the delay in the payment of the salary, must indicate it in the resignation letter, because if he/she does not do so, he/she will not be able to allege the indirect dismissal.
Although the law does not indicate how long the systematic noncompliance of the payment is configured, jurisprudentially it has been indicated that when the employer is occasionally one or two days late in the payment of the salary, the systematic and serious noncompliance of its obligations is not configured, which prevents the worker from resigning with just cause, it is necessary that this noncompliance is harmful to the worker, who requires his salary to subsist, therefore, the delay in the payment of his salary for a considerable time, for example in the time of a month would be harmful to him.
There is also another possible consequence, which is that the employee may denounce the employer before the Ministry of Labor for non-compliance with its labor obligations and the Ministry of Labor, in the exercise of its functions, may impose a sanction, but it is true that this last option is less common.
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