Salary or remuneration is one of the essential elements of the employment contract. It is defined as compensation for services performed by the worker.
This figure finds its support at the constitutional level. Article 57 of the Political Constitution indicates that:
"Every worker shall have the right to a minimum wage, set periodically, for a normal working day, which provides him with well-being and a dignified existence. The salary will always be the same for equal work in identical conditions of efficiency (...)".
For its part, the Labor Code regulates the forms of payment and its protection mechanisms through articles 36 and 162 to 176.
For the subject under study, article 173 of the Labor Code is fundamental since it exclusively regulates the only scenarios where salary deductions can be applied to employees. Textually it says that:
"The advance payment made by the Employer to the worker to induce him to accept the job will be limited, concerning its amount, to a quarter of the agreed monthly salary; when it exceeds the set limit, it will be legally uncollectible and cannot be recovered later by compensating it with the amounts owed to the worker.
The debts the worker contracts with the employer for advance payments or payments made in excess will be amortized during the contract term in a minimum of four payment periods and will not accrue interest. It is understood that at the end of the contract, the Employer may make the appropriate final settlement".
It is important to note that the abovementioned regulations only allow the possibility of applying salary deductions when they originate from salary advances or payments made in excess. On the contrary, it is not possible to apply salary deductions in case of damages caused by workers, whether due to negligence, recklessness, or even malicious acts.
In this sense, and particularly in cases of inventory shortages, the Second Chamber has had the opportunity to rule on the matter, indicating that:
"In the lawsuit, the plaintiff showed disagreement with the reductions that were made in her salary during the course of the employment relationship, derived from shortages in inventories. Both in the first and the second instance, the reimbursement of the discounted money was ordered. The appellant indicates that the reductions were made with the consent of the worker, however, there is no evidence in this regard, and without a doubt, the provision to reduce her salary due to alleged shortages in the inventories was illegitimate, since there is no rule that allows it. In the regulations contained in Title III, Chapter IV of the Labor Code, referring to the salary and the measures that protect it, there is no record that allows the employer to make deductions for this type of reason in the salaries of its workers and the measure entails transferring the company risk to the person who works, which is not allowed in the field of labor relations". (Resolution 2008-0566 of the Second Chamber of the Supreme Court of Justice, at 09:35 on July 17, 2008).
In the same sense, the Constitutional Chamber has expressed itself, which in its judgment 16545 of 8:36 am on November 29, 2005, stated:
"In this regard, in repeated resolutions, this Chamber considered that: The right to salary has been conceived as the compensation due to the worker under the employment contract, as consideration for the work he has done or should do or for the services he has provided or should lend; on the other hand, for the employer, it constitutes an obligation that, due to the usefulness it represents for the worker and that by its very nature, must be paid in full and at regular intervals. However, this constitutionally protected right does not prevent the employer, in the event of an advanced payment and payments unduly made as a result of a material error, from being able to get back what was paid in a justified manner. Thus, article 173 of the Labor Code establishes that the debts that the worker contracts with the employer for advance payments or payments made in excess will be amortized during the contract term in a minimum of four payment periods and will not accrue interest."
Applying salary deductions directly and as a result of situations not provided for in article 173 of the Labor Code implies a risk for the company since they may face legal proceedings for the collection of salary differences caused, even when said deductions come from damages caused and recognized by the worker.
However, the fact that from the perspective of labor law, it is not possible to apply salary deductions to compensate for the damages caused by a worker does not mean that there are no legal mechanisms to collect the damage caused. However, it should be clarified that the corresponding way to make said recovery is within the civil jurisdiction.
In this regard, number 1045 of the Civil Code establishes:
"Anyone who by intent, fault, negligence or imprudence, causes damage to another, is obliged to repair it together with the damages."
In this regard, the Second Chamber of the Supreme Court of Justice has indicated:
"The fact that the actor agreed with these deductions or was previously notified of these reductions does not change the resolution at all because, in these cases, the protection of the salary that is of constitutional order must prevail (articles 57 and of the Constitution Policy), as well as the nullity of the clauses that compromise it (article 11 of the Labor Code). The same happens with the payment of the price of the truck through monthly installments, even if the plaintiff assumed responsibility for the carelessness and became a debtor, such provision is null under the provisions of the aforementioned number 11 of the Labor Code that establishes the principle of inalienability of rights and, according to which, "will be absolutely null, and will be taken as not put, the resignations made by workers of the provisions of this Code and its related laws that favor them." There is no doubt that salary is one of them (article 162 et seq. of the Labor Code), and, for the purposes, it does not matter if the legal minimum salary was kept intact as alleged by the appellant. Before any acceptance by the worker to be demoted for that reason, there could have been strict liability or a penalty, but it cannot properly be called a debt from the labor point of view. If the accused party intended to collect these sums, he should have gone to the corresponding route and activated the seizure mechanism established by the same legislation, but not proceeding in clear prejudice to the rights of the worker" (Resolution 2015-1217 of the Second Chamber of the Supreme Court of Justice, at 09:05 on October 30, 2015).
Therefore, to collect damages caused intentionally or negligently, the company must go to a civil proceeding, demonstrating a causal link between the worker's actions and the damage caused. Likewise, by means of a resolution, the worker's responsibility must be determined, and he will be sentenced to compensation for the damage caused.
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