The “JUS VARIANDI” Or the Right of the Employer to Modify an Employment Contract.
By Jacqueline Dhimes
In accordance with Article 41 of the Code of Labor, the employer can introduce some modifications to the employment contract:
“Art. 41. – The employer is in his right to introduce the changes that are necessary in order for the employee to fulfill his employment obligations, as long as these changes are not considered an unreasonable burden, do not alter the essential conditions inherent to the contract and do not cause any material or moral harm to the employee”.
Although it is in an employer’s right to modify an employees working conditions, in an effort to improve efficiency or effectiveness it is important to note that the employer has STRONG limitations since they must satisfy the requirements of the legal code, unless as demonstrated in Article 37 the modification or changes are to the benefit of the employee. The employer may not alter any essential conditions inherent in the contract nor can they institute any change that can result in harm or endanger the employee in any way.
Prior to the Code of Labor, jurisprudence had established a strict interpretation of the Jus Variandi, they had determined:
“The Jus Variandi that empowers the employer is directly dependent upon the employees contractual obligations and reasonable expectations, it does not extend to allow an employer to substantially or capriciously alter the contract, it is only allowed in specific scenarios where the changes requested by the employer does not imply a downgrade for the employee in terms of salary or benefits or in terms of an employee’s hierarchy. In essence, changes and alterations under Jus Variandi are not permitted if they result in an unjustifiable harm for the employee” (Sentencia 19 de Julio de 1954, B. J.528, Pág. 1375-1388).
The “Jus Variandi” is an important tool for the employer, allowing some variation, within reasonable limitations, on an employee working conditions and expectations in accordance with the ever-changing needs and requirements of a business. (Sentencia del 23 de Julio de 1957, B. J. 546, Pág. 1476-1473) It is important to note, that this is not an arbitrary power of an employer, although it is an integral part of employment relationships jurisprudence has established clear limitations to protect employees from unjust changes.
