The Supreme Court of Justice – Fourth Decongestion Labor Division issued judgment SL083 of January 31, 2023, file number 85858, which studied in detail the case of an employee who filed an action for the protection of fundamental rights (tutela) against his former employer, seeking his reinstatement, arguing that he was protected by a reinforced labor stability, because of his health condition.
In said constitutional action, the plaintiff’s requests were granted, ordering the reinstatement, and imposing the burden on the plaintiff to file a reinstatement labor lawsuit within four (4) months following the notice of the judgment of the action for the protection of fundamental rights, an obligation that the interested party did not comply with.
Now, regarding the case in question, it is worth highlighting some of its particularities, as follows:
The plaintiff was employed until August 29, 2014, under a fixed-term employment agreement.
By means of a first instance judgment for the protection of fundamental rights, issued on September 22, 2014, the reinstatement was ordered.
The company complied with the reinstatement order on September 26, 2014.
The employee was dismissed again on January 30, 2015.
The plaintiff was rated by the Bolivar Regional Disability Rating Board on December 29, 2016, which assigned him a loss of capacity for work of 20.7%, with an onset date of January 18, 2015.
Based on the foregoing, the Supreme Court of Justice, through Judgment SL083 of January 31, 2023, conducted a study of the non-compliance incurred by the plaintiff, in relation to the order issued by the Constitutional Judge and the effects of such action, the following relevant conclusions can be drawn from the afore-mentioned ruling:
In view of the non-compliance with the order issued by the Judge for the Protection of Fundamental Rights, regarding the failure to file the ordinary labor lawsuit for reinstatement within four (4) months following the notice of the constitutional judgment, the protection obtained as a transitory mechanism loses its effects.
The challenge filed as part of a constitutional action does not mean that the decision of the Judge for the Protection of Fundamental Rights is suspended; on the contrary, it must be complied with immediately, without being subject to the resolution of said appeal, an effect that applies equally to the obligation to file the ordinary labor lawsuit for reinstatement within the four months following the notice of the judgment for the protection of fundamental rights.
Regarding the loss of capacity for work certificate made to the plaintiff, the Court indicates that although it was carried out on December 29, 2016, and has as onset date January 18, 2015, for the employer it was not possible to be aware of the health status of the employee at the time of the dismissal, since it considers August 29, 2014, as the date of termination of the labor relationship, that is, the date of the first dismissal; and not on January 30, 2015, when the employer dismissed the plaintiff for the second time, since the employment relationship generated at that time was the result of a judgment for the protection of fundamental rights that became ineffective.