La estabilidad en el empleo y la reinstalación obligatoria. Apartado A del artículo 123 constitucional mexicano

Abstract

Stability in employment is perhaps the corollary of workers’ rights resulting from great social struggles in the history of labour law, because before seeking fair wages, 8-hour working hours and other favourable working conditions, every operator in principle certainly seeks to remain in the workplace; therefore, this work based on a deductive method presents an investigation into the stability in employment in Mexican labour law, based on the applicable criteria of the Inter-American Court of Human Rights, through the Political Constitution of the United Mexican States and particularizing the study in the Federal Labour Law. This is to confront the right under our analysis with mandatory re-installation after unjustified dismissal and thereby highlight the legislative deficiencies in our labour law, proposing concrete solutions aimed at providing true protection of the working class from forced labour relations. This, in the light of the employer’s right to be exempted from the obligation to comply with the employment contract and to reinstate its dismissed workers unjustifiably and the legal procedures for obtaining the exemption in comment. Once the above points have been analyzed, the development of this work will allow us to reach the following conclusions: Stability in employment is a right of workers to keep their work for as long as agreed or determined by law for the duration of the employment relationship, and may lose it only if there is a legally justified cause for rescission without liability for the employer. There-fore, this right is acquired from the very moment of the birth of the employment relation-ship. The re-installation in the workplace of unjustifiably dismissed operators is a means of re-dressing the violation of the right to stability in employment by which the violated right is restored and because of working conditions, providing workers with continuity in their employment relationship and the benefits derived from it. The reinstatement of unjustifiably dismissed workers is generally mandatory and by way of exception the employer shall be entitled to be exempted from the obligation to comply with the employment contract in the cases expressly provided for in article 49 of the Federal Labour Law, with that obligation being commuted to the compensatory payments provided for in article 50 of that law. We consider it necessary to reverse the scope of the regulatory assumptions contained in article 49 of the Federal Labour Law in order to constitute as a general rule the employ-er’s right to be exempted from the obligation to comply with the employment contract, considering cases of exception in which the reinstallation in the workplace must be mandatory. The legal procedure by which the employer may be exempted from the obligation to comply with the employment contract is the incident that we call “incident of exemption and compensatory payment of the obligation to comply with contract” and not by insubmissing to arbitration, non-compliance with the resolution or the paraprocess procedure contained in the Federal Labour Law.