Nulidad del Despido

La Nulidad del Despido es la sanción aplicable al despido o autodespido que se haya producido existiendo cotizaciones previsionales impagas, teniendo como efecto que no se pone término a la relación laboral únicamente para efectos remuneracionales, es decir, en palabras simples, pese a que el despido implica que el trabajador ya no debe prestar servicios, el empleador le deberá seguir pagando su remuneración íntegra, hasta que haya pagado las cotizaciones debidas, y lo informe al trabajador mediante carta certificada.

images (1)

Las cotizaciones previsionales son un ítem remuneracional de importancia primaria para la ley, ya que tienen por objeto asegurar al trabajador condiciones mínimas de bienestar frente a condiciones de mayor necesidad, tales como la vejez, el desempleo o la enfermedad. Son, básicamente, los pagos que el empleador debe realizar ante las instituciones previsionales del trabajador: FONASA o ISAPRE, AFC y la AFP u otra institución de administración de los fondos de pensión por vejez.

Esta importancia fundamental que para el trabajador tienen las cotizaciones previsionales fundamenta la existencia de esta fuerte sanción para el empleador que no las haya pagado íntegramente a la fecha del despido, y cuyo principal efecto es que el empleador seguirá debiendo pagar al trabajador su remuneración mensual íntegra, incluyendo las cotizacines previsionales. Es decir, si fuiste despedido en diciembre y se te debían cotizaciones previsionales, y tu remuneración bruta era de, por ej. $500.000, y a principios de julio se declara la nulidad del despido, el tribunal deberá ordenar pagar $3.000.000 y fracción, por los más de 6 meses que van del despido.

OJO: El art. 162 del Código del Trabajo ha establecido como excepción que esta sanción no se aplicará en caso de que la deuda de cotizaciones no tenga una cierta embergadura, fijando parámetros a este respecto; de los que basta, para esta oportunidad, explicar que la sanción se deberá aplicar siempre que la deuda de cotizaciones sea superior a 2 UTM ($100.000 aproximadamente).

Igualmente, es bueno tener presente que la ley da un plazo de 6 meses para demandar la nulidad del despido, luego de lo que este derecho se extingue.

 Finalmente, es importante tener claro que esta sanción se ha decretado para cualquier tipo de cotización impaga, y ya sea esté o no reconocida la remuneración que da lugar a esta deuda previsional. Así, si por ejemplo tu empleador te paga un sueldo de $350.000, por el que te paga imposiciones, pero también te paga una fracción de $200.000 que decide no declarar, para abaratar costos, por lo que no figura en tus liquidaciones de remuneración; se puede demandar la nulidad del despido, por la fracción de cotizaciones impagas. Igualmente si hay una fracción de remuneración que tu empleador ni siquiera reconoce deberte, como un determinado bono, u horas extras, también se puede demandar, en conjunto con el pago de esa remuneración, la nulidad del despido, por las cotizaciones correspondientes a esa remuneración imponible que no te fueron pagadas.

Esta entrada tiene 365 comentarios

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