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.
The use of “Jus Variandi” must be functional in that the alterations must be justifiable, reasonable and understandable due to the nature of the work required. Unjust or unreasonable action against an employee will not be tolerated under the law, acts like unjust suspensions or substitutions since this would result in an unjust firing are not allowed. Not to mention any unjust salary downgrades or unreasonable substantial alterations to the employment contract, any form of degradation or humiliating experiences towards an employee. (Sentencia del 16 de Noviembre de 1959, B. J. 590, Pág. 1868-1874).
The use of “Jus variandi” does not lend itself to any changes or modifications that negatively affect moral or material interests of the employee (especially economic interests) as an employee’s physical and mental health is completely protected, as is their patrimony.
In rare cases, substantial changes to employment contracts are permitted when these are the result of a mutual-agreement. Substantial changes must be proved to be the result of a mutual agreement with the employee and regardless of the argument, the changes or modifications must not imply a termination of contract nor must it interfere with the Code of Labor and its legal limitations to support the rights of employees.
Effects and Consequences
Let’s say that an employee has had their employment-contract altered, and that his bonus and his rights have been downgraded unjustly as a result he receives a smaller salary and less benefits.
What can he do?
A) Speak directly with his employer so that he can review his contract and fix the discrepancy
B) Go directly to the Authorities
C) Quit and take the case to a court of law, and potentially obtain payment for unjust treatment and mental/moral harm (an employee has 2 months to present their case, the 2 months commence at the moment the employee was given notice of the unjust alteration of his contract
D) Take a similar action to C, but with the objective of recuperating the previous contractual conditions in addition to suing for economic reparation or imposing sanctions or penalties on the employer
An employer cannot modify an employee’s bonuses or salary if this would result in a loss for the employee because the law assumes that these changes were harmful and damaging in nature and are a detriment to the employees’ rights
To summarize, in Dominican Republic an employer cannot change an employee’s employment conditions or the benefits received from this employment if these changes represent a reduction to the sums the employee receives, in short if they hurt or damage an employee in any way.
For employers to properly exercise their right to “Jus Variandi” they must institute changes that benefit their employees, at the very minimum they must show that the changes have resulted in the employee being in the same condition without any additional harm.
