The Justice System has Conflicting Views on Suspended Employment Contracts

With votes cast by Graciela Craig and Luis Raffaghelli, on September 28, Labor Court VI of the National Labor Court of Appeals admitted a motion for provisional remedy ordering that compensation be paid to a worker in an amount equivalent to the difference between the salary that she used to receive when she was working and the compensation that she receives while her employment contract is suspended on the count of the COVID-19 pandemic. It also ordered that the company refrain from discounting any further amounts from her salary until there is a ruling on the merits of the case. The agreement allowing for the suspension of the plaintiff’s employment contract had been executed between the Union and the Association of Employers under the terms of Section 223 bis of the Labor Contract Law (under the umbrella of a prior agreement between those entities) and it had been duly authorized by the Labor Ministry (File record 10370/2020, “CARDOZO, GABRIELA NOEMI vs. ATENTO ARGENTINA S.A. re. MEDIDA CAUTELAR”).

In the opposite direction, in a similar case brought before Labor Court V of the National Labor Court of Appeals on September 19, judges Beatriz Ferdman and Néstor M. Rodriguez Brunengo rejected the motion for a provisional remedy solely on the grounds that the requirements had not been met for the court to be able to decide on the issue in the expedited proceedings that apply to such remedies (it is important to highlight, that in Argentina, this procedure is one-sided in the sense that the counter-party is not heard by the court). Thus, the court did not rule on the merits of the case (i.e. whether agreements to suspend employment contracts are lawful or not under the terms of Section 223 bis of the Labor Contract Law) (File record 21040/2020, “TEBES EMMANUEL MATIAS vs. ARCOS DORADOS ARGENTINA S.A. re. SALARY DIFFERENCES”).