JUZGADO LABORAL ACOGE DEMANDA DE EXTRABAJADORAS DE FUNDACIÓN COLABORADA DEL SENAME POR LA CAUSAL DEL ARTÍCULO 160 N°7 CÓDIGO DEL TRABAJO.
Estimados trabajadores, con fecha 15 de febrero de 2021 el primer Juzgado de Letras del Trabajo de Santiago acogió la demanda de despido injustificado deducida por dos trabajadoras que fueron despedidas por la causal del artículo 160 n°7 Código del Trabajo, es decir, fueron despedidas por incumplimiento grave de las obligaciones que impone el contrato de trabajo, causal que no fue posible justificar por parte de la empresa demandada ya que no se logró acreditar la gravedad de los hechos imputados al trabajador.
La sentencia en análisis, estableció que en el presente caso no se acredita que los hechos imputados a las trabajadoras en la carta de despido sean realmente graves y de tal entidad que generen un quiebre en la confianza de la empresa para con ellas y que dicho actuar se constituya como un quiebre a la buena fe contractual.
Agrega el fallo que, de todo lo relatado, ha quedado suficientemente acreditado para el Tribunal que las trabajadoras aceptaron llevar un encargo, actuando con la intención de ayudar y colaborar con el menor que se encontraba bajo su accionar, mas no es posible establecer que con ello estaban excediendo sus atribuciones, especialmente porque actuaron, al menos, con la anuencia de la jefatura, estimándose que el incumplimiento que se les atribuye en la misiva de despido no ha sido tal, debiendo considerarse además que la demandada para acreditar los hechos no aportó haber realizado una investigación formal, por un ente imparcial en el que las trabajadoras pudieran expresar descargos, y se les hubiese asegurado un debido proceso, tal como la jurisprudencia ha señalado permanentemente que se requiere para acreditar un despido disciplinario .
Como podemos ver de lo ya señalado, el tribunal logró establecer que de los hechos señalados en la carta no era posible imputar la culpa al actuar de las trabajadoras, ya que estaban actuando dentro de las propias facultades y condiciones trabajo que la empresa les impuso y les otorgaba, de tal forma que no resulta factible establecer que exista un incumplimiento grave de parte de las trabajadoras si resulta que estaban en conocimiento de su jefatura que llevarían dicha encomienda para el menor que representaban.
Agrega la sentencia que, para resolver el caso en cuestión, ha de tenerse en cuenta también el principio protector del Derecho del Trabajo, el que dadas las asimetrías que se presentan entre los contratantes, a saber, empleador y trabajador, busca precisamente morigerar tales diferencias, con una clara vocación de tutela y protección de la parte más débil: el trabajador, y solo aplicable a favor del mismo, ya que en las relaciones sociales se dan vínculos de poder y uno de los más intensos es probablemente el de las relaciones de trabajo. La idea matriz del derecho del trabajo es la protección del trabajador. De esta manera, el derecho del trabajo humaniza las relaciones laborales. En el caso específico, se puso término al vínculo de trabajo invocando la causal de incumplimiento grave de las obligaciones que impone el contrato de trabajo. Tales decisiones constituyen una expresión del poder disciplinario del empleador, en concreto como una sanción en el contexto de pena privada. En este sentido las causales de despido, como es propio, no solo deben ser acreditadas en su supuesto fáctico, sino que además deben ser interpretadas restrictivamente, privilegiando la de carácter contractual, y que corresponde a aquella que cae directamente bajo los sentidos de los contratantes, debiendo interpretarse sus cláusulas en correlación con las funciones que está obligado a desempeñar el trabajador, lo que aquí no acontece.
En dicho entendido, se debe tener presente que el análisis de la causal de incumplimiento grave del contrato de trabajo del articulo 160 n° 7 del Código del Trabajo no implica solo revisar o acreditar si existió algún antecedente de carácter grave para adoptar la decisión de terminar el contrato de trabajo por el empleador. Lo que debe imponerse como una decisión justificada de poner término al contrato de trabajo, es que esa decisión esté fundada en un incumplimiento grave que sea reiterado en el tiempo, que genere un quiebre en la confianza con el trabajador, que dicho incumplimiento implique un acto contrario a la buena fe contractual y que se genere un perjuicio posible de cuantificar o acreditar.
De tal forma, el despido por la causal del artículo 160 n°7 Código del Trabajo que no logre ser probado o que no esté suficientemente justificado en una carta de despido, será declarado como injustificado y se deberá indemnizar al trabajador con un recargo legal equivalente al 80% respecto de la indemnización por años de servicio, es decir, aparte de recuperar las indemnizaciones legales por años de servicio y mes de aviso previo, el trabajador que demande a su ex empleador podrá obtener esta indemnización extra equivalente al 80% de los años de servicio, por la errónea aplicación de la causal del despido esgrimida para el caso en análisis.
En relación a lo ya señalado, queda de manifiesto que resulta esencial frente a cualquier despido que el empleador haga entrega de una carta de despido al trabajador que logre satisfacer y hacer entender al trabajador los reales motivos que dieron lugar al despido, de tal forma que siempre ante cualquier despido independiente de la causal aplicada se debe analizar si realmente la carta cumple con describir de forma clara y precisa los hechos o si dichos hechos se ajustan a la verdad y la realidad, de tal forma que siempre ante cualquier despido se debe contactar a un abogado para que analice la carta y establecer si es una carta satisfactoria, en caso contrario, se debe demandar de forma inmediata por el despido injustificado y obtener las indemnizaciones que señala la ley por ser víctima de un despido injustificado o falto de verdad, lo anterior ya que como hemos indicado, lo señalado en la carta de despido debe ser probado en juicio y generar convicción suficiente en el juez respecto a la verdad de lo señalado para despedir al trabajador y así descartar que el despido obedece solo al deseo de la empresa de mejorar sus utilidades y ganancias por medio de la reducción de trabajadores.
Por todo lo anterior, y como siempre les indicamos a todos los trabajadores de Chile si están siendo víctimas de un despido, 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.
No olvidar que para demandar se debe realizar la respectiva reserva de derechos en el finiquito, por lo tanto si es despido por la causal del artículo 160 n°7 Código del Trabajo, contáctenos a la brevedad para coordinar una reunión y de esta forma explicar los pasos a seguir para la realización de la reserva de derechos.
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