JUZGADO DEL TRABAJO ACOGE DEMANDA POR DESPIDO DE OPERADOR MÉDICO DE EMPRESA DE TELEMEDICINA Y DECLARA LA EXISTENCIA DE RELACIÓN LABORAL.
Estimados trabajadores, con fecha 18 de diciembre de 2020 el primer Juzgado de Letras del Trabajo de Santiago acogió la demanda de despido injustificado deducida por trabajador que fue despedido verbalmente sin carta de despido, además se logró establecer la existencia de una relación laboral en virtud de que la empresa demandada no había escriturado el contrato de trabajo y encubrió el vínculo por medio de un supuesto contrato de honorarios y emisión de boletas de honorarios.
La sentencia en análisis, señaló que no habiéndose dado cumplimiento por la demandada a las solemnidades propias del término de la relación jurídica laboral, es decir, entregar la respectiva carta de despido al trabajador, se condenará igualmente a la indemnización sustitutiva de aviso previo, indemnización por un año de servicio y recargo del 50% contemplado en el artículo 168 del Código del Trabajo teniendo como base remuneratoria la suma de $400.000 mensuales.
Como podemos ver de lo ya señalado, el tribunal logró establecer que durante un año la empresa demandada mantuvo prestando servicios bajo subordinación y dependencia al trabajador demandante sin formalizar por medio de un contrato de trabajo la relación laboral, que incluso la demandada procedió a despedir al demandante sin cumplir ninguna formalidad, de tal forma que el despido además de ser injustificado y sin causa, adquiere el carácter de nulo siendo aplicable lo señalado por la ley bustos ya que al momento del despido la empresa no se encontraba al día en la pago de la cotizaciones previsionales y de salud del trabajador.
De tal forma y según el análisis ya realizado, la empresa demandada no pudo acreditar la existencia de un verdadero contrato de honorarios o prestación de servicios, que en definitiva por medio de esta supuesta figura la empresa intentó sostener el vínculo con el trabajador basado en la precariedad laboral propia de estos sistemas en que no se considera ningún pago de cotizaciones y derechos sociales, lo cual deja al trabajador a la deriva frente a prestaciones de salud, pensión de vejez y seguro de cesantía.
En relación a lo ya señalado, resulta importante que si son despedidos y nunca se escrituró o concretó la relación laboral por medio de un contrato de trabajo, se debe demandar inmediatamente al empleador ante los tribunales laborales para que se declare la existencia de la relación laboral, lo anterior ya que las empresas buscan evitar escriturar los contratos de trabajos y hacer que los trabajadores emitan boletas de honorarios con el objeto de no pagar cotizaciones y ahorrarse dinero, y además de evitar el pago de indemnización por años de servicios, mes de aviso y vacaciones al momento del despido, de tal forma que al demandar se busca obtener el pago de las cotizaciones y derechos sociales adeudados, y el respectivo pago de la indemnización por años de servicios, mes de aviso y vacaciones.
Por todo lo anterior, y como siempre les indicamos a todos los trabajadores de Chile si están siendo víctimas de un despido y nunca les hicieron contrato de trabajo no duden en contactarnos para recibir la debida asesoría y de esta forma demandar al empleador para la obtención de las indemnizaciones correspondientes por el despido injustificado y la declaración de relación laboral.
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