La encrucijada judicial de la rescisión contractual indemnizada vía art. 41 LET

Abstract

This work attempts to provide a critical analysis of the rising incidence, in the labour litigation field, of the excesses of the prerogative of the «power of direction» to which the employer avails himself for the unilateral modification of the working conditions. Business policies for individual modification of working conditions are increasing in two directions. On the one hand, the individual working conditions are modified with a substantial character that are interpreted by the company as accessory because it does not really present the objective cause, transferring the worker to oppose them in court, reversing the burden of proof, in order to choose, where appropriate, upon indemnified termination. On the other hand, the contractual termination of the burdensome or uncomfortable worker is encouraged by means of the individual substantial modification, apparently without objective cause, surreptitiously causing his abdication by way of indemnified termination. These practices arise from the legal and jurisprudential lack of definition of what is considered to be «substantive» or «accessory» regarding the modification of working conditions and the lack of specification of the objective cause on which the substantial modification is based. This paper presents a critical view of the negative consequences of this business excess that only aims at the covert restructuring of labour work.