About the notice
The notice is the prior communication that must be done by the party that wishes to end the employment relationship: either the employer before dismissal with employer responsibility or the worker before a resignation.
Said figure is regulated in article 28 of the Labor Code, which establishes the period in advance with which the other party must be notified of the intention to terminate the employment relationship according to the duration of the employment contract.
Concerning the deadlines, the rule mentioned above indicates:
a. After a continuous job of not less than three months nor more than six, with a minimum of one week's notice;
b. After continuous work that exceeds six months and is not more than one year, with a minimum of fifteen days notice, and
c. After a year of continuous work with a minimum of one month's notice.
The said article indicates that either party may terminate the employment relationship without a just cause, but it will be necessary to notify the other. Therefore, it is a figure of a bilateral nature, that is, notice is an obligation for the party that ends the relationship and a right for the other, regardless of whether it is the worker or the employer.
When the employer terminates the employment relationship (dismissal with employer liability)
If the employer terminates the employment relationship, it will be up to him to give the notice to the worker and grant the time in advance (established in article 28 of the Labor Code) so that the worker has the opportunity to look for a new job. He may also opt to pay the equity amount equivalent to the notice period not granted.
On the other hand, as it is a worker's right, he may waive the period of notice granted if he gets a new job before the end of said period. Therefore, under this case, the employer should not pay the period of notice not worked by the worker since the latter would be waiving his right.
When the worker terminates the employment relationship (resignation)
The worker must give notice to his employer so that he can look for the corresponding replacement. In case of non-compliance, there is the possibility that the employer files a lawsuit to collect the money corresponding to the period not fulfilled by the worker.
Likewise, since it is a right of the employer, he could resign to the notice given by the worker and release him from working it, without this implying that the employer must pay any amount to the worker for not having worked the notice.
In this regard, the Second Chamber of the Supreme Court of Justice has indicated:
In this last scenario, as was said, notice is an obligation of the worker (this is how the plaintiff herself understood it when she wrote in her letter of resignation: "I comply with my obligation to give notice") and a right of the employer –that is, no right arises for the worker–, and if the employer considers it unnecessary to exercise that right, article 32 of the Labor Code allows him to waive it, which can happen in two ways: a) that the worker leaves abruptly without granting the legal notice and the employer chooses not to collect the respective compensation –or allows the 30 days that the law provides for these purposes to elapse–, or b) that the worker gives the notice and the employer choose to let him go at once –either the same day of the communication of the resignation or any other day during the period of notice–, without having to pay him the salary of the days that he did not need the worker to provide his services. The same solution would be imposed in the reverse hypothesis, that is, that the worker is dismissed and given notice so that he has the opportunity to find another job and that before the period of notice expires, he is hired elsewhere, in which case could retire at that very moment and it would not be possible for the former employer to require him to continue working until the expiration of the period of notice (Resolution 2010-261 of the Second Chamber of the Supreme Court of Justice, at 09:45 on 19 February 2010. The original text is not highlighted).
The preceding has an exception, and it is when the worker has expressly conditioned his resignation to be allowed to work the notice period.
when it is the worker who terminates the contract, the notice payment is a liberality of the employer who can waive that right, without assuming financial obligation for it in favor of the worker, unless the effectiveness of the resignation of the latter (of the worker ) is conditional on being allowed to complete the period of notice to which he is legally bound; factual assumption in which, due to the principle of good faith that must govern labor relations, the employer must pay the salary for the days that the worker was not allowed to work during the notice granted (Resolution 2005-300 of the Second Chamber of the Supreme Court of Justice, at 11:10 a.m. on April 29, 2005. The original text is not highlighted.)
In the same sense, and taking into consideration that the primary function of notice is that the parties have the opportunity either to seek a replacement for the worker who resigns or to find a new job in the case of the dismissed employee, notice is a figure typical of open-ended contracts, since in fixed-term contracts both parties know the end date of the contract from the moment it is signed. That is, in fixed-term contracts, notice must not be paid.
Other situations in which it is not necessary to pay advance notice amounts are when the indefinite-term contract ends due to dismissal without employer liability or when the worker has incurred one of the offenses described in article 81 of the Labor Code.
Under subsection B of article 30 of the Labor Code, the amount paid for advance notice is calculated using the average wages earned by the worker in the last six months.
In other words, all the salaries, both ordinary and extraordinary, received by the worker in the last six months must be added up and divided by six to obtain a monthly value. Then, the result of said exercise must be divided by 30 to get a daily value, which must finally be multiplied by the number of days established in the article mentioned above 28 of the Labor Code, following the duration of the employment contract.
Finally, it is essential to mention that, regardless of how the employment contract ends, either by dismissal with employer responsibility or resignation by the collaborator, he will have one day off each week to seek a new job.
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