La Justicia ratificó que los francos no gozados por los empleados se pierden y no se compensan en dinero

Los magistrados remarcaron que la Ley de Contrato de Trabajo establece que son días para descansar y que no se pueden retribuir pecuniariamente. Además, rechazaron el pedido de indemnización agravada por matrimonio solicitado por el dependiente. Qué tuvieron en cuenta para emitir la sentencia

La finalidad de los francos compensatorios es que los empleados puedan descansar. Por ese motivo, la Ley de Contrato de Trabajo (LCT) establece que no pueden ser compensados en dinero ante la falta de su goce.

Es por esta razón que la norma le permite a los dependientes, previa comunicación a su empleador, tomarse los días correspondientes en caso de que la empresa donde trabajen no se los otorguen. Esto es así porque, si no lo hacen, directamente los pierden.

Pero puede suceder que el empleado sea calificado como “conflictivo” si toma la decisión de ejercer su derecho de forma unilateral, ante la negativa de la firma de otorgarle el referido descanso.

Es por ello que existen numerosos reclamos laborales donde los trabajadores piden una compensación pese a lo que indica la ley vigente.

Si bien en el Congreso existen diversos proyectos de ley que pretenden modificar la norma para permitir a los empleados afectados recibir una compensación económica por la falta de goce de este descanso, la mayoría de los especialistas considera que esta medida sería un incentivo para que los dependientes no se preocupen por gozar de los descansos pendientes ya que percibirán una suma de dinero por ello.

Los que apoyan la reforma lo hacen bajo el argumento de que el dependiente no sólo pierde el derecho a descansar sino que también cede gratuitamente al empleador el salario de la jornada de descanso trabajada.

Además, sostienen que indirectamente se está perjudicando al sujeto que se pretende proteger y se termina beneficiando a quien transgrede la norma.

Algunos especialistas pretenden que se califique el trabajo prestado en el descanso como suplementario, ordenando su pago con un recargo del ciento por ciento.

En este contexto, se dio a conocer un nuevo fallo de la Cámara laboral donde fue rechazada la demanda de un empleado por la que se pedían diferencias indemnizatorias basadas en francos compensatorios no gozados.

Para los magistrados, no correspondía desvirtuar “la finalidad higiénica” que persiguen las normas sobre descanso y, por lo tanto, resolvieron no hacer lugar al pago de una compensación pecuniaria.

Francos no gozados
El empleado fue despedido e indemnizado, pero se presentó ante la Justicia para reclamar distintos resarcimientos a los que consideraba que tenía derecho. Entre ellos, se destacaban la suma de 13 salarios porque -desde su punto de vista- la empresa lo discriminó ya que su desvinculación se habría debido a su reciente matrimonio, la falta de pago de los francos compensatorios que se había tomado y diferencias salariales y resarcitorias.

El juez de primera instancia hizo lugar a esta última solicitud y fijó una suma superior a los $30.000. El dependiente, no conforme con esta cifra, se presentó ante la Cámara de Apelaciones.

Sobre el reclamo de pago por los francos compensatorios no gozados, los jueces fueron contundentes y en un solo párrafo rechazaron los argumentos del empleado.

“Una correcta inteligencia del artículo 207 de la LCT impone concluir que si el trabajador no goza del descanso omitido, en la semana siguiente a aquélla en que debió otorgarlo el empleador lo pierde, sin que exista la posibilidad de compensarlo en dinero, vista la finalidad higiénica del instituto”, se lee en la sentencia.

El fallo ratifica la postura judicial que no admite que los descansos higiénicos, como son los francos compensatorios, puedan ser compensados en dinero o reclamados en juicio.

En esta clase de situaciones, Héctor García, socio del estudio García, Pérez Boiani & Asociados explicó que “concurren principios de orden público que no admiten que se compensen en dinero, es por ello que la LCT faculta a todo empleado a gozarlos en forma unilateral si el empleador no los asigna”.

En tanto, Sergio Alejandro, director del suplemento de Derecho del Trabajo y Seguridad Social de elDial.com explicó que “el texto del artículo 207 de la Ley de Contrato de Trabajo es muy claro: ante la omisión del otorgamiento del descanso compensatorio contempla el derecho del trabajador a gozarlo efectivamente en la semana subsiguiente“.

“Si no lo hiciera en tiempo y forma pierde el derecho, es decir, caduca la opción legal, igual sucede respecto de las vacaciones, el fin de ambos institutos relativos al descanso es netamente higiénico, no es procedente su compensación en dinero”, enfatizó.

En tanto, el consultor Alejandro Chamatropulos también sostuvo que “la sentencia se ajusta a derecho”.

Pero, al contrario de los otros especialistas, agregó que “aún en contra de lo dispuesto normativamente de manera expresa, se podría intentar alguna interpretación forzada a favor de la compensación económica en el caso de que a un empleado efectivamente no se le permita el goce del descanso”.

Ello en base a que, en algunos casos, si el trabajador decide tomarse el franco por su cuenta, puede generar tensiones relevantes en la relación con su empleador. Para ver el fallo completo provisto por elDial.com, haga clic aquí

Indemnización por matrimonio
En varias oportunidades, los jueces sostuvieron que, aun cuando el artículo 180 de la LCT dispone la prohibición del despido por causa de matrimonio y se encuentra ubicado en las disposiciones “trabajo de mujeres”, también se extiende al hombre, ya que la finalidad del instituto es preservar “los derechos esenciales de la persona que hacen a la constitución de la familia y a la esencia de la sociedad”.

Asimismo, el plenario Drewes declaró procedente la indemnización especial para el supuesto de despidos disputados respecto de un trabajador varón dentro del plazo establecido. Ello hizo que muchos dependientes desvinculados durante el mencionado período de protección legal para la mujer también pidieran automáticamente el incremento resarcitorio.

Sin embargo, en aquel caso, se indicó que, para viabilizar la procedencia de las presunciones allí establecidas, es necesario que el empleado demuestre concretamente que dicho despido obedeció al hecho de haber contraído nupcias.

Es decir, el criterio con que debe apreciarse a la procedencia de la indemnización especial debe ser restrictivo en el caso de los empleados hombres.

Para este caso concreto, los jueces entendieron que el dependiente no demostró que el despido se basó en su enlace matrimonial.

“El fallo evita caer en la tentación de extender una indemnización especial sin más, como lamentablemente viene aconteciendo en la materia y en estos últimos años”, remarcó el socio del estudio García, Pérez Boiani & Asociados.

“El trabajador debe acreditar que el móvil del despido fue el matrimonio y no pretender acceder a dicha penalidad por la circunstancia de haber contraído enlace dentro del plazo de presunción previsto en la ley”, concluyó.

Fuente: iprofesional.com

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