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Dear Dalia,
According to our phone conversation, we comply by informing you about the following information:
Clause 8.2 of the Employment Contract states that in case the company decides to terminate the contract
by loss of trust, it must be notified to the worker three (3) months early and, in case the company does
not do so, the worker must receive a payment of four (4) monthly salaries as additional penalty to his
legal liquidation.
Likewise, clause 6.3 states that since 2016 the employee will receive a performance bonus equivalent to
two (2) average salaries which is based on the performance of the year and in case one of the parties
decides to terminate the contract that bonus will be paid in proportion to the time of service.
On the other hand, the company has informed us that it wish to terminate the employment relationship
by mutual dissolution. Through this figure, the company and the employee reach a written agreement to
terminate the contract. In this type of agreement, companies use to give a graceful amount equivalent
to a compensation for arbitrary dismissal (although the labor rules does not indicate that, it is an estndar
practice), which adds up to a one and half monthly salary per year worked, with the proportional amount
per months and days, with the maximum of twelve (12) salaries. This provided amount affects the income
tax of the employees. Likewise, this amount can be compensated for any amount that a Labor court
judge orders to the company to pay for any claim made by the employeer in relation to his separation.
In view of this, we consider that the concepts which must be granted to the employee in case of mutual
dissolution are:
- Graceful amount: equivalent to compensation for arbitrary dismissal.
- Monthly remuneration and legal employment benefits (according to peruvian law: CTS, July and
December bonus, vacations, etc.).
- Performance bonus proportional to the worked months in the year.
The pay of the four (4) remunerations agreed in clause 8.2 of the contract should be paid only in case of
dismissal for loss of trust without at least three month prior notice, which is not happening in the present
situation because the company will celebrate a mutual dissolution.
In case the company does not give the graceful amount, it is possible that the worker demands the
company and the labor court judge could take this as a sign of arbitrary dismissal, even though in reality
this is not true. In that case, the court could order the payment of indemnity for arbitrary dismissal.
In the event of no giving the legal employment benefits or the performance bonus, the employee can
request the recovery in a court proceeding arguing that those benefits correspond to him because law
(remunerations) or the employment contract (performance bonus) states that.
We consider that the graceful amount can not replace the performance bonus because this benefit is
granted to the employee in accordance with the contract, so the employee can request the payment of
that concepto in court.
In case the company only gives to the employee the graceful amount, there will be an expectation that
the employee claims before the labor court the missing amounts, requested that can be made within four
years after the separation.
We remain at your disposal for any questions you may have about this topic.