Permanent-discontinuous worker: reinstatement

Companies are obliged to call permanent-discontinuous workers once the activity in which they are engaged is resumed.

As you may already know, permanent-discontinuous workers are those who provide services on an indefinite-term basis, but intermittently, so that there are periods in which they do not work, and their contract is suspended.

The fixed-discontinuous contract must always be formalized in writing and must include certain essential elements of the work activity, among others, the duration of the period of activity, the working day and its hourly distribution, although the latter may appear as an estimate, without prejudice to its specification at the time of the call. 

To provide clarity and guidance on the processes related to the recall and reinstatement of permanent-discontinuous workers, we offer the following information in this circular.

Recall of permanent-discontinuous workers

It is the obligation of companies to recall permanent-discontinuous workers once the activity for which they were hired is resumed. This call must be made in accordance with the terms established in the employment contract and in accordance with the provisions of the Workers’ Statute.

• The call must be made in writing or by another means that allows to record the appropriate notification to the worker, detailing the conditions of their incorporation and with sufficient advance notice, which has been recognized by the courts as a minimum period of 48 hours.
• We recommend consulting the corresponding collective bargaining agreement to determine the precise means of communication of the call, and also extend the minimum period of notice to the worker.

Reincorporation to the position

The reinstatement of permanent-discontinuous workers is a fundamental right that must be respected by the company. Once the call has been issued, the workers are obliged to return to work on the date indicated in the call notice.

In case of not receiving the call or not being properly notified, the worker has the right to challenge this situation and sue for unfair dismissal within 20 days from the date he/she became aware of the lack of call.

Absence of the employee before the call

If the permanent-discontinuous employee does not respond to the call or does not show up at his job on the indicated date, the following actions should be considered:

• The absence cannot be understood as a voluntary leave automatically, since the worker’s will is not expressly manifested.
• It is recommended to try to contact the employee by all available means before making final decisions, notifying him/her of the consequences of his/her absence.
• The application of penalties for unjustified absences may be considered in accordance with the provisions of the applicable collective bargaining agreement.

In summary, the correct application of the procedures for recalling and reinstatement of permanent-discontinuous workers is essential to maintain a work environment in compliance with current regulations and to avoid possible legal conflicts.

You can contact this professional firm for any questions or clarification you may have in this regard.

For further information, please consult with Labor consulting.

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